Lords Confirm Burden Of Proof Lies With Employer
The House of Lords has confirmed a decision of the Court of Appeal that the burden of proof in health and safety cases effectively lies with the employer, not the Prosecution.
The Chargot case concerned a fatal accident that occurred in March 2003. Shaun Riley was killed when the dumper truck he was driving overturned whilst he was moving spoil during the course of construction works at Heskin Hall Farm near Chorley in Lancashire.
The Health and Safety Executive subsequently prosecuted three parties: Chargot Limited – Mr Riley's employer. Ruttle Contracting Limited – the Principal Contractor George Ruttle – the Managing Director of Ruttle Contracting and also a director of Chargot.
Chargot were prosecuted under section 2 Health and Safety at Work Act 1974, the general duty imposed upon all employers “to ensure, so far as is reasonably practicable, the health, safety and welfare” of all their employees. On conviction in 2006, they received a fine of £75,000 and were ordered to pay the Prosecution's costs of £37,500.
Ruttle Contracting were charged under section 3 of the 1974 Act. This requires every employer “to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment who may be affected thereby are not exposed to risks to their health and safety”. Their penalty was somewhat higher – a fine of £100,000 and costs of £75,000.
Finally, George Ruttle was convicted under section 37 of the 1974 Act. The court found that the offence committed by Ruttle Contracting was committed with the “consent or connivance of, or to have been attributable to any neglect” on the part of Mr Ruttle. Evidence was heard that he had given specific instructions as to how work on site was to be carried out. His total penalty was, surprisingly for an individual, much greater than his corporate co-defendants - £178,500, comprising a fine of £75,000 and Prosecution costs of £103,500.
All three defendants unsuccessfully appealed their convictions to the Court of Appeal. But they were granted leave to appeal to the House of Lords on the following point of law:
“Is it sufficient for the Prosecution to prove merely a risk of injury arising from a state of affairs at work or need it go on to identify and prove a specific breach or breaches of duty”.
The crux of the defendants' case was that the Prosecution had not set out within the wording of the offences against each of them exactly how they had failed in their statutory duties under each section (in Mr Ruttle's case it was the failure of Ruttle Contracting under section 3). The Prosecution had simply stated that the offences arose due to risks arising from “driving” or the “use of dumper trucks”. The Prosecution took the view that it was sufficient for them to establish that there was simply a risk of injury arising from a certain state of affairs on site. To avoid conviction, a defendant would then have to prove that they had done all that was reasonably practicable.
This is known as the reverse burden of proof in that, unusually in Criminal cases, it places a burden on a defendant to effectively establish that they are innocent. Normally, the onus is only on the prosecution to prove that a defendant is guilty. It was first upheld by the courts as the correct approach to undertake in health and safety cases in the case of R v Janway Davies, some five years ago. Given this change in the burden of proof, the defendants argued that the prosecution should be required to specify and prove what failures had occurred, before the onus then shifted to the defence.
The Lords disagreed. In the leading judgement of Lord Hope, it was held that the prosecution merely had to prove that an employer had failed to meet the duties imposed upon them by section 2. That an accident has occurred, as in this case, would be enough to demonstrate that there was a risk. The burden of proof would then pass to the defence. Whilst Lord Hope conceded that the absence of an accident would make it necessary for the prosecution to identify and prove the respects in which there had been a breach of duty by a defendant, the simple truth is that very few health and safety prosecutions do not involve some kind of injury.
A slightly tighter view was taken in relation to section 3 offences. An injury would not, according to Lord Hope, necessarily be enough for the prosecution to show there was a risk, they might also have to both identify and prove how the injured party was affected by the defendant's undertaking (a component of the offence). In practice, this is again unlikely to be a difficult hurdle for the prosecution to surmount.
The defendants also sought to argue that the decision in R v Janway Davies should be overturned. The reverse burden of proof had been justified by the court in Janwya Davies on the basis that health and safety offences did not carry a prison sentence. With the Health and Safety (Offences) Act 2008 coming into effect on 16 January 2009, this will change. The House of Lords dismissed this argument in Chargot, albeit with little reasoning. Undoubtedly this argument will be raised again in the future and it will be interesting to see if the appeal courts maintain their stance, especially once they face the reality of, say, a company director facing a jail term for a fatal accident.
There is one crumb of comfort within the Chargot judgement. The Lords upheld the recent decision in R v Porter (a case undertaken by DWF) that the law does not seek to create an environment that is entirely risk free. The concern is risks that are material – a real risk. Porter concerned a young boy who jumped down a series of playground steps at a private school. The Court of Appeal held in May 2008 that the risk the Prosecution had to prove must be real, not fanciful. The use of the steps posed no such risk, so the question of reasonably practicability never arose.
The decision in Porter clearly represents an important qualification to the approach set down by the House of Lords in Chargot. Ultimately, however, we are left with a situation in which defendants will increasingly be put to proof as to what reasonably practicable measures they have taken, even where the cause of an accident, according to the Lords, is unknown or debatable.
Source: DWF LLP
