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HOUSE OF LORDS RULING ON SAFETY CASES

The House of Lords has ruled that in safety cases where an injury has occurred, the prosecution is under no duty to identify and prove specific acts or omissions, it can use the fact of the injury as sufficient evidence. It will fall to the defence to show that it has managed the risk so far as is reasonably practicable.

The Case

The Lords delivered the judgement on 10 December, which upheld the Court of Appeal's decision last year in R v Chargot Ltd and others. The appeals by Chargot and Ruttle Contracting were against conviction under the HSWA relating to the death in January 2003 of Shaun Riley. Mr Riley was driving a dumper truck up a ramp when it overturned, burying the worker under the vehicle and its load.
Chargot, the employer, and Ruttle Contracting were found guilty under sections 2(1) and 3(1) of the Act, respectively, and were fined £75,000 and £100,000. George Ruttle, a director of both companies, was also found guilty under s37 of the Act, and was fined £75,000.
The prosecution argued that to prove a prima facie case was to prove there had been an exposure to risk. The Court of Appeal agreed, as the fact that an accident had occurred was enough evidence of the exposure to risk.
The companies, argued that it was not enough for the prosecution simply to assert that a state of affairs existed, which gave rise to a risk to health or safety. They suggested that there was a need to identify specific acts or omissions.

The Judgement

The Lords agreed that where no injury occurred more evidence would be required from the prosecutor. However, where a person sustains an injury the ruling confirms that the facts speak for themselves (prima facie).
Lord Hope confirmed "a case where the alleged risk has not had this result cannot be dealt with so easily. It will be necessary to identify and prove the respects in which there was a breach of duty. This is likely to require more by way of evidence than simply an assertion that that state of affairs existed."
He also added that the Health and Safety (Offences) Act which may increase the potential penalties for such an offence, does not require to be tested differently.

What Does This Mean to Businesses?

Unlike most areas of law the burden of proof in Health and Safety Law falls to the defendant (in this case the businesses). It will be up to a business to show that it has complied with all the guidance and has met its statutory duties. Where an accident has occurred, the prosecution will have a simple task to prove its case in regard to exposure to risk. It is therefore, essential that senior managers are absolutely confident that they have explored every option, and actioned every deficiency.

What Action Should Business Take?

• Directors and senior managers have to show strong leadership in health and safety
• They must be prepared to fully resource the work to identify risks and to reduce the impact they could have
• They must be confident that they meet all their statutory duties
• They must be able to prove that work done on health and safety is being carried out by competent advisors
• They must be sure that all risks are fully assessed and record the findings of such risk assessment work
• They must be confident that all procedures and documentation are regularly reviewed, and where change in risk is identified everyone who can be affected by it is made fully aware.
• They should audit there health and safety management systems periodically, and record the results of such audits

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