HTM, R v

This is an appeal under Section 35(1) of the Criminal Procedure and Investigations Act 1966 against rulings made by HHJ Fox, QC, the Recorder of Middlesbrough on the 23^rd March 2006. The rulings were made in a preparatory hearing held pursuant to section 29 of that Act and were given in answer to two questions which will determine the scope of the ultimate trial of the defendants at trial, the respondents to this appeal. The defendants face an indictment in which they are charged in Count 4 with a failure to discharge their duty under Section 2(1) of the Health and Safety at Work etc Act 1974 (the 1974 Act). The duty identified in the particulars of offence is:

“It failed to ensure, so far as was reasonably practicable, the health, safety and welfare at work of all its employees (including Fred Cook and John Crimmins)....”

The facts, so far as necessary for the present purpose, were as follows. The defendants were providing traffic management services to contractors Colas Ltd, who were resurfacing parts of the A66 trunk road between Greta Bridge and Lowfield. Mr Cook and Mr Crimmins were two of the defendants’ employees engaged in providing those services but taking their day to day instructions from Colas Ltd. The traffic was subject to contraflow arrangements which were lit at each end by mobile telescopic towers provided by the defendants which extended to a height of 9.1 meters. Overhead power cables crossed the road carrying 20,000 volts of electricity and were as low as 7.5 meters above ground level in places. Mr Cook, who was apparently the senior employee of the defendants on the site, was instructed by Colas Ltd to move one of the towers. He did so with the assistance of Mr Crimmins. Tragically, they did not lower the tower, as it is said that Mr Cook had been trained to do, and as instructions on the tower itself stated, as a result of which it made contact with the power cables and both Mr Cook and Mr Crimmins were fatally injured.

The specific respects in which it was said the defendants were in breach of the duty to their employees were particularised in the indictment as follows:

“1.

failing to provide and maintain a system of work (namely a system for the movement and erection of mobile lighting towers operating at a height of 9.1 meters on a site which was crossed over by overhead electricity power lines, at a height of, in places, 7.5 metres) which was, so far as was reasonably practicable, safe and without risks to health; and

2.

failing to provide such information, instruction and supervision as was necessary to ensure, so far as was reasonably practicable, the health and safety at work of its employees in carrying out work of moving and erecting mobile lighting towers with an operating height of 9.1 metres on a site which was crossed over by an overhead electricity power line at a height in places of 7.5 meters.”

The defendants wish to call evidence at trial to establish that they took all reasonably practicable steps to ensure the safety of Mr Cook and Mr Crimmins by way of training and instructions, that the accident was a result of what was done by Mr Cook and Mr Crimmins themselves, and that it could not be foreseen that they would act in that way, at least so as to require any further precautionary measures than were in fact taken. The prosecution submits that foreseeability plays no part in answering the question of whether or not there was a breach of the relevant duty, and that the defendants are precluded from relying on any act or default of either of their employees in order to avoid liability, pursuant to the regulation 21 of the Management of Health and Safety at Work Regulations 1999 (the 1999 Regulations).

The rulings with which we are concerned were directed to determining the extent to which the defendants were entitled, as a matter of law, to advance their defence. They were given in answer to the following questions:

To each of these questions, the Recorder answered “No”. By this appeal, the prosecution, the Health and Safety Executive (HSE), seek to persuade us that the judge was wrong in relation to the answer to both questions.

The starting point of the submissions of Mr Matthews, QC on behalf of the HSE is, and had to be, the relevant statutory provisions in the 1974 Act, these are:

“1.

“Preliminary

The provisions of this Part shall have effect with a view to -

(a)

securing the health safety and welfare of persons at work.;

(b)

protecting persons other than persons at work against risks to health or safety arising out of or in connection with activities of persons at work.

2.

General duties of employers to their employees

(1)

It shall be the duty of every employer to ensure, so far as is reasonably practicable, the health, and safety at work of all his employees.

......

3.

General duties of employers and employed persons other than their employees.

(1)

It shall be the duty of 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 thereby exposed to risks of their health and safety.

..

33.

Offences

(1)

It is an offence for a person –

(a)

to fail to discharge a duty to which he is subject by virtue of sections 2 to 7;

......

40.

Onus of proving limits of what is practicable etc

In any proceedings for an offence under any of the relevant statutory provisions consisting of a failure to comply with a duty or requirement to do something so far as is practicable or so far as is reasonably practicable.... it shall be for the accused to prove (as the case may be) that it was not practicable or not reasonably practicable to do more than what in fact was done to satisfy the duty or requirement.”

The relevant provision of the 1999 Regulations is regulation 21 which provides:

“Nothing in the relevant statutory provisions shall operate so as to afford an employer a defence in any criminal proceedings for a contravention of those provisions by reason of any act or default of –

Mr Matthews’ submission is that the statutory scheme created by the 1974 Act and regulations made under it must be construed in the context of the purpose set out in section 1(1). This is particularly significant in relation to the duty in section 2 of the 1974 Act, which deals with the health and safety of persons at work, and therefore is to be read so as to “secure” that objective. This is to be contrasted with the duties under section 3 which are directed at the objective in section 1(1)(b) which is “protecting” persons against risks. He submits that foreseeability, raising as it does the question of risk assessment, plays no part in the exercise of determining whether or not the duty under section 2 has been met. That is a discrete duty imposed on employers by regulation 3 of the 1999 Regulations. And where foreseeability is an element in any obligation in a health and safety context, it is expressly provided for as, for example, in the Confined Spaces Regulations 1997 where by regulation 1(2): “a confined space:” means any place ... or similar space in which by virtue of its enclosed nature there arises a reasonably foreseeable specified risk.”

Mr Matthews also relies on the inspection and enforcement provisions of the 1974 Act and the statutory inspection régime with its consequential powers, in particular the provisions relating to the service of improvement and prohibition notices which would, he submits, be difficult to implement if there was an argument as to forseeability of risk carrying with it, as it inevitably would, an element of subjectivity.

Mr Matthews has referred us to two authorities in particular which, in his submission make it plain that the essentially regulatory nature of these and similar statutory provisions preclude any argument that the forseeability of risk plays any part in the determination of the extent of the duty. In R –v- Davies [2002] ECA Crim 2949, this court held that the imposition of the legal burden of proof in section 40 of the 1974 Act was justified, necessary and proportionate and not incompatible with Article 6(2) of the European Convention of Human Rights. It did so on the basis that the statute was regulatory, intended to set goals for duty holders to encourage them to be safety conscious to prevent accidents rather than being concerned simply to imposing sanctions. It cited with approval the judgment of Cory J in the Canadian Supreme Court in R –v- Wholesale Travel Group Inc [1991] 3SCR 154 when he said:

“Regulatory legislation involves a shift of emphasis from the protection of individual interests and the deterrence and punishment of acts involving moral fault to the protection of the public and society’s interest. While criminal offences are usually designed to condemn and punish inherently wrong conduct, regulatory measures are generally directed to the prevention of future harm through the enforcement of minimum standards of conduct and care.”

More directly relevant is the decision of the Court of Appeal, Civil Division in Dugmore –v- Swansea HS Trust and Anr [2003] 1All ER 333. This was an appeal in an action brought by a nurse who had developed an allergy to latex protein as a result of wearing latex gloves. It would appear that she had become sensitised sometime between 1993 and 1995 and developed a serious reaction for the first time in June 1996 as a result of which she was supplied with vinyl gloves. She subsequently, when employed by another hospital, suffered an anaphylactic attack when picking up an empty box which had contained latex gloves. In relation to the liability of the first hospital, the judge held, and the court of appeal agreed, that the evidence did not establish that a reasonable employer should have known that latex could cause such sensitivity before her attack in 1996. However, the Court of Appeal held that there had been a breach of regulation 7(1) of the Control of Substances Hazardous to Health Regulations 1988 and 1994 (The COSHH Regulations). This regulation provides:

“Every employer shall ensure that the exposure of his employees to a substance hazardous to health is either prevented, or, where this is not reasonably practicable, adequately controlled.”

It was common ground that, on the evidence, latex was a substance hazardous to health for the purposes of that regulation. The question was therefore whether or not the fact that it was not reasonably foreseeable at the relevant time that it was capable of being hazardous to health entitled the hospital to say that there had been no breach of that regulation. The court held that the primary duty was contained in the phrase “shall ensure”. It was not dependant upon what a risk assessment would have revealed. Lady Hale, giving the judgment of the court, referred in paragraph 21 to the judgment of Lord Nimmo Smith in Williams –v- Farne Salmon and Trout Ltd [1998] SLT 1329. This was a decision which was primarily concerned with the question of whether or not forseeability played any part in the determination of the question of whether or not a hazard to health was involved in a particular activity, in that case exposure to micro organisms in salmon. In dealing with the definition of a substance hazardous to health, he said that the definition was:

“Couched in factual terms which are unqualified by the distance of any existence state of knowledge or reasonable forseeability.....

I can see no difference, for present purposes, between a substance being in fact hazardous to health and a place being in fact unsafe, and in my opinion the 1988 regulations impose the same kind of absolute duty as is imposed by section 69(1) [of the 1961 Act]. A number of other provisions in the regulations reinforce me in this view.... the absolute nature of this duty is, in my view, made abundantly clear in the provisions of reg 7(1) which uses the word “ensure” in connection with the employers duties subject to a limited defence of reasonable practicability in respect of the duty to prevent the exposure of his employees to a substances hazardous to health. The risk assessment provisions of reg 6(1), the monitoring provisions of reg 10 (1) and (3), the surveillance provisions of reg 11(1) and the information instruction and training provisions of reg 12(1) all seem to me to presuppose the actual or potential existence of an objectively verifiable state of affairs, and to place the onus on the employer to discover this, the better to ensure compliance with this absolute duty to protect his employees first exposure to substances hazardous to health.”

Having cited that passage, Hale LJ, said in paragraph 22 of Dugmore:

“In our view, that analysis is correct, the duty in reg 7(1) is an absolute one: to ensure that exposure is prevented or controlled. Mr Shaw, for the hospitals sought to persuade us that the words “so far as is reasonably practicable” should be moved from their current position qualifying the duty to prevent exposure so as to qualify the duty to ensure that exposure is either prevented or controlled. There is no warrant for us to rewrite the regulation in this way. Its wording is even stricter than that in section 29(1) of the 1961 Act, where the phrase “so far as is reasonably practicable” came between “shall” and “be made and kept safe”. If that was an absolute duty, then so this must be.”

The reference to section 29(1) was a reference to section 29(1) of the Factories Act 1961 which provides that:

“Every place at which any person has at any time to work.... shall so far as is reasonably practicable, be made and kept safe for any person working there.”

In Larner –v- British Steel plc [1993] 4All ER 102, a claim based, on a breach of that section, the court held that the claimant did not have to prove that the danger which made his place at work unsafe was reasonably foreseeable . Hirst LJ (at p 110) was prepared to hold that the test of safety was a strict one. Agreeing, Peter Gibson J observed (at p. 111) that the words of section 29(1) –

“Contain no express reference to forseeability, reasonable or otherwise. “Safe” is an ordinary English word and I cannot see any reason why the question whether a place of work is safe should not be decided purely as a question of fact, without putting any gloss on it.”

Reference to section 29(1) of the Factories Act is important because it identifies the source of the phrase “so far as is reasonably practicable” as used in both sections 2, 3 and 4 of the 1974 Act. In Austin Rover Group Ltd –v- HM Inspector of Factories [1990] 1AC 619, Lord Goff, at page 625D said:

“I turn next to the second expression in section 4 (2) of the Act of 1974 which I have segregated – “so far as is reasonably practicable.” These words have received authoritive interpretation in previous cases. It is now established that, in cases concerned with a statutory duty which is qualified by those words, the risk of accident has to be weighed against the measures necessary to eliminate the risk, including the cost involved. If, for example, the defendant establishes that the risk is small, but that the measures necessary to eliminate it are great, he may be held to be exonerated from taking steps to eliminate the risk on the ground that it was not reasonably practicable for him to do so.”

He then referred to the judgment of Asquith LJ in Edwards –v- National Coal Board [1949] 1KB 704 at page 712, and to the speeches of Lord Oaksey and Lord Reid in Marshall –v- Gotham Company Ltd [1954] AC 360. Lord Goff concluded at page 626H:

“ It follows from the passages which I have quoted that, for the purpose of considering whether the defendant has discharged the onus which rests upon him to establish that it was not reasonably practicable for him, in the circumstances, to eliminate the relevant risk, there has to be taken into account (inter alia) the likelihood of risk eventuating. The degree of likelihood is an important element in the equation. It follows that the effect is to bring into play forseeability in the sense of likelihood of the incidence of the relevant risk, and that the likelihood of such risk eventuating has to be weighed against the means, including cost, necessary to eliminate it.”

As can be seen from the passages that we have cited, this decision was concerned with section 4 of the 1974 Act which by sub-section 2 provides:

“It shall be the duty of each person who has, to any extent, control of premises to which this section applies.... or of any plant or substance in such premises to take such measures as it is reasonable for a person in his position to take to ensure, so far as is reasonably practicable, that the premises ..... and any plant or substance in the premises or .... provided for use there, is or are safe and without risk to health.”

In the circumstances of the Austin Rover case, Lord Jauncey determined the appeal on the basis of an analysis of the phrase “such measures as it is reasonable for a person in his position to take”, rather than the relevant phrase, “so far as is reasonably practicable”. And the other members of the Judicial Committee expressly agreed with Lord Jauncey, without referring to the speech of Lord Goff. It is suggested that, as a result, the passages in Lord Goff’s speech should not be regarded as setting out the position authoritatively. But it should be noted that Lord Jauncey did not in any way dissent from Lord Goff’s analysis of the relevant phrase; nor did any other member of the House. But perhaps more important, at page 636, Lord Jauncey dealt with the relationship between the phrase which he considered to resolve the case and the relevant phrase. At letter B he says:

“Thus while only one yardstick determines whether premises are safe at any one time the measures to ensure the safety required of each person having a degree of control may vary. Approaching the matter in this way, content may be given to the words “so far as reasonably practicable”. It could, having regard to his degree of control and knowledge of likely use, be reasonable for an individual to take a measure to ensure the safety of premises, but it might not be reasonably practicable for him to do so having regard to the very low degree of risk involved and the very high cost of taking the measure.”

It seems to us that, although in short form, that is precisely the meaning ascribed to the relevant phrase by Lord Goff.

In our view, Lord Goff’s analysis of what is the right approach, is the one which, on the authorities, correctly identifies the proper approach to the jury question posed by the relevant phrase. It is to be noted that he expresses the relevance of forseeability in a closely confined way. Forseeability is merely a tool with which to assess the likelihood of a risk eventuating. It is not a means of permitting a defendant to bring concepts of fault appropriate to civil proceedings into the equation by the back door; still less does it mean that the phrase “reasonably foreseeable” in itself provides the answer to the jury question. But it seems to us that a defendant to a charge under section 2 or indeed section 3 or 4, in asking the jury to consider whether it has established that it has done all that is reasonably practicable, cannot be prevented from adducing evidence as to the likelihood of the incidence of the relevant risk eventuating in support of its case that it had taken all reasonable means to eliminate it.

This does not mean that we disagree with the analysis of the Court of Appeal in Dugmore as to the nature of the duty in regulation 7(1) of the COSH regulations. The wording of that regulation is significantly different from the wording of section 2 of the 1974 Act. As Hale LJ explained, the primary duty in the regulation is an absolute one. The defendant sought to avoid this by arguing that the phrase “so far as is reasonably practicable” qualified, in effect, the word “ensure”. The court rejected that argument for obvious reasons. Unlike regulation 7(1) however, the phrase does qualify the word “ensure” in section 2 of the 1974 Act.

Turning to the second question, this raises a point of some difficulty arising from the drafting of the regulation. Mr Matthews submits that it was intended to give effect to this country’s obligations under Council Directive 89/391, intended to improve the safety and health of workers. Article 5 of the Directive provides as follows:

“1.

The employer shall have a duty to ensure the safety and health of workers in every aspect related to the work.

....

3.

The workers’ obligations in the field of safety and health at work shall not affect the principle of the responsibility of the employer .....”

The problem with which regulation 21 was intended to deal, submits Mr Matthews, was created by decisions of this court, in particular in R –v- Nelson Group Services (Maintenance) [1999] 1 WLR 1526. In essence this court, following an earlier decision in Gateway Food Markets Ltd [1997] 2 Cr App R 40, held that the mere fact that an employee has acted carelessly does not preclude an employer from arguing that it had taken all reasonably practicable steps to ensure the safety of employees or those affected by the employer’s undertaking.

Gateway Food Markets Ltd was a decision of this court presided over by Evans LJ in which the appellants had been charged with an offence under section 2(1) of the 1974 Act. In answer to a submission that the company could be liable only for the acts or omissions of those who could be described as directing minds of a company (a concept derived from the decision of the House of Lords in Tesco Supermarkets Ltd –v- Nattrass [1972] AC 153), the court considered the judgment of Steyn LJ in R –v- British Steel [1993] 1 WLR 1025 in which he suggested, obiter, that even passing negligence on the part of an employee could give rise to liability under the 1974 Act. At page 46 in Gateway, Evans LJ said as follows in relation to this aspect of the case:

“The answer lies, we suggest, in the application of the qualification or caveat contained in the statute itself. The duty under each section is broken if the specified consequence occur, but only if “so far as is reasonably practicable” they have not been guarded against. So the company is in breach of duty unless all reasonable precautions have been taken, and we would interpret this as meaning “taken by the company or on its behalf”, in other words the breach of duty and liability under the section do not depend upon any failure by the company itself, meaning those persons who embody the company, to take all reasonable precautions. Rather the company is liable in the event that there is a failure to ensure the safety, etc , of any employee, unless all reasonable precautions have been taken – as you would add, by the company or on its behalf.

If this is correct, then it follows that the qualification places upon the company the onus of proving that all reasonable precautions were taken both by it and by its servants and agents on its behalf. The concept of the “directing mind” of members of the company has no application here. The further question is whether this includes all those persons for whose negligence the employer is vicariously liable to third parties for the purposes of the law of tort. If it does, then the employer is not able to rely on the statutory defence when any of its employees has been negligent, i.e. failed to take reasonable precautions “in the course of his employment”. That phrase has been widely defined, and if the same test applies here then the statutory defence is limited to the rare case where the individual employee was on a frolic of his own, and where there was no failure to take reasonable precautions at any other level. It is possible that some narrower test should be defined, but as stated above, we do not consider that it is necessary to decide this for the purposes of the present appeal.”

That solution was adopted by Roch LJ in his judgment in Nelson, a case involving inter alia, allegations of a breach of section 3(1) of the 1974 Act. In that context, Roch LJ said at page 1548E:

“We derive considerable assistance from the judgment of this court in the Gateway case. We would summarise the law in this way. First, if persons not in the employment of the employer are exposed to risks to their health or safety the conduct of the employers undertaking, the employer would be in breach of section 3(1) and guilty of an offence under section 33(1)(a) of the Act of 1974 unless the employer can prove on the balance of probabilities that all that was reasonably practicable had been done by the employer or on the employer’s behalf to ensure that such persons were not exposed to such risks. It will be a question of fact for the jury in each case whether it was the conduct of the employer’s undertaking which exposed the third person to risks to their health and safety. The question of what was reasonably practicable is also a question of fact for the jury, depending on the circumstances of each case. The fact that the employee who was carrying out the work, in this case the fitter in installing the appliance, has done the work carelessly or omitted to take a precaution he should have taken, does not of itself preclude the employer from establishing that everything that was reasonably practicable in the conduct of the employers undertaking to ensure that the third persons affected by the employers undertaking were not exposed to risks to their health and safety had been done.”

Subject to the effect of regulation 21, we are bound by those two cases. Their effect is that the defendants will be entitled to put before the jury evidence to show that what happened was purely the fault of one or both of their employees. If the jury were persuaded that everything had been done by or on behalf of the company to prevent that accident from happening, it would be entitled to be acquitted. The question is therefore whether or not the phrase “so far as is reasonably practicable” operates so as to afford the defendant “a defence”. If it does, then regulation 21 prima facie bites, so as to preclude the defendant from relying on what the courts have held to be the meaning of the primary legislation.

A number of interesting arguments have been raised in relation to the interaction of primary and secondary legislation in such circumstances. But one uncontroversial principle clearly applies, namely the principle that secondary legislation can only have the effect of amending primary legislation, assuming all other tests are met, if the wording is clear and unambiguous and the intention to achieve that objective manifestly established.

There is no doubt that in a significant number of the judgments given in the cases to which we have referred, the effect of section 40 of the 1974 Act has resulted in judges referring to the duty under section 2 and 3 as being subject to a defence, or a limited defence, of reasonable practicability. But as Tuckey LJ made plain in Davies in paragraph 8:

“The duty cast on the defendant is a “duty ...to ensure as far as is reasonably practicable.” It is a breach of this qualified duty which gives rise to the offence.”

It seems to us that that is the correct analysis. Even though a legal burden of proof in relation to that aspect of the duty is imposed on the defendant, nonetheless the breach is properly described in the indictment in the present case as we have set out in paragraph 1 above. It follows that the phrase “so far as reasonably practicable” is not a defence. Regulation 21 can have no application to it. Regulation 21 would appear to be an attempt to transpose Article 5.3 of the directive into domestic law. Whether it has succeeded in that regard is not a question that we have to decide in this case. All we need to say is that it has not affected the decision of this Court in Nelson.

In our judgment, the Recorder gave the right answer to both questions; the appeal is dismissed.

I agree.

I also agree.