Chargot Ltd (t/a Contract Services) & Ors, R. v

On the 10^th November 2006 in the Crown Court at Preston, before the Recorder of Preston, the first appellant, Chargot Ltd, was convicted of contravening section 2(1) of the Health and Safety at Work Act 1974 (the Act); the second appellant Ruttle Contracting Ltd, was convicted of contravening section 3(1) of the Act; and the third appellant, George Henry Ruttle was also convicted of contravening section 3(1) of the Act. The first appellant was fined £75,000 and ordered to pay £37,500 costs. The second appellant was fined £100,000, and ordered to pay £75,000 costs. The third appellant, George Henry Ruttle, was fined £75,000 and ordered to pay £103,500 costs. They appeal against conviction by limited leave of the single judge, and renew their applications for leave to appeal against sentence.

At the material time, the first and second appellants were members of the Ruttle Group of companies, of which the third appellant was the managing director. The Ruttle Group owned Heskin Hall Farm near Chorley in Lancashire. Between October 1998 and January 2003 extensive project work was carried out at the farm which included building a car park. Notice of this project had not been given in accordance with the provisions of the Construction Regulations 1994 prior to the work commencing.

On the 10^th January 2003, Shaun Riley was driving a dumper truck at the farm in relation to the construction of the car park. It does not appear that he was the usual dumper truck driver. He had been asked to drive it that day by Barry Draper, whose was the foreman on the site. The task at the relevant time was to take a load of spoil approximately 500 yards to a hole into which it was to be deposited. As Shaun Riley was driving down a ramp, the dumper truck fell onto its side; and for reasons which were never fully resolved, he was buried under the spoil and died.

Put shortly, the prosecution case against the three appellants was that as far as the first appellant was concerned, it was the employer of Shaun Riley and the other workmen on the site, and had failed to ensure their safety. As far as the second appellant was concerned, it was the company carrying on the undertaking, namely the project at Heskin Hall Farm and had failed to ensure that the project was not carried on in such a way as to expose Shaun Riley and others who were not in the company’s employment, to risks to their safety. As far as the third appellant was concerned, he was a director of the second appellants and the offence that it committed was committed with his consent or connivance or was attributable to neglect on his part.

The appellants’ defence was that, whilst accepting that, in particular in relation to the use of the dumper truck, there had been no risk assessments, no training and that no safety helmets had been provided, they had nonetheless done everything which was reasonably practicable to ensure the safety of Shaun Riley and the other workers. There were no appreciable or significant dangers in the project, particularly in relation to the driving of dumper trucks. The dumper truck was itself a perfectly simple piece of equipment which Shaun Riley appeared to be perfectly competent to drive. The first appellant said that in any event its only function was to hire men to carry out the work in which they would be subject to the control of the principal contractor. As far as the second appellant was concerned, it denied that it was the principal contractor or carrying out the undertaking. It said that the contractor carrying out the undertaking was Ruttle Plant Hire Ltd, a company which was no longer trading. The third appellant denied that he had assumed any responsibility for what was taking place on site. He therefore did not connive at or consent to anything which was capable of amounting to a breach of his companies’ obligations under the Act, nor was he guilty of any neglect to which any such breach could be attributed.

The relevant provisions of the Act are as follows:

“Section 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, safety and welfare at work of all his employees.

(2)

Without prejudice to the generality of an employer’s duty under the preceding sub-section, the matters to which that duty extends include in particular –

a.

the provision and maintenance of plant and systems of work that are so far as is reasonably practicable and safe without risk to health;

b.

arrangements for ensuring, so far as is reasonably practicable, safety and absence of risks to health in connection with the use, handling, storage and transport of articles and substances;

c.

the provision of such information, instruction, training and supervision as is necessary to ensure, so far as is reasonably practicable, the health and safety at work of his employees;

d.

So far as is reasonably practicable as regards any place of work under the employer’s control, the maintenance of it in a condition that is safe and without risks to health and the provision and maintenance of means of access to and egress from it that are safe and without such risks;

e.

the provision and maintenance of a working environment for his employees that is, so far as is reasonable practicable, safe without risks to health and safety, and adequate as regards facilities and arrangements for their welfare at work.

…….

Section 3: General duties of employers and self employed to 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 risk to their health or safety,

…..

Section 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;

……

Section 37: Offences by bodies corporate.

1.

Where an offence under any of the relevant statutory provisions committed by a body corporate is proved to have been committed with the consent or connivance of, or to have been attributable to any neglect on the part of, any director, manager, secretary or other similar officer of the body corporate, or a person who was purporting to act in any such capacity, he as well as the body corporate shall be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

…..

Section 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, or to use the best practicable means to do something, 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 was in fact done to satisfy the duty or requirement or that there was no better practicable means than was in fact used to satisfy the duty or requirement.”

These appeals raise an important question as to the effect of the burden placed on the defence under section 40 on what the prosecution has to prove in order to establish the prima facie breach of duty triggering the need for the defence to establish that it was not practicable or not reasonably practicable to do more than was in fact done to satisfy the duty. That will require consideration in this case of the way in which the prosecution presented its case and the way in which the judge summed it up to the jury.

Before turning to this issue, we should dispose of two discrete issues which ultimately turn on the particular facts of this case. Also, we should mention for the sake of completeness that the appellants made an application at the commencement of the trial for it to be stayed as an abuse of process. The judge’s ruling dismissing this application was the subject of a ground of appeal for which leave was refused. It was indicated at one time that the appellants wished to renew the application for leave in respect of this ground. But, ultimately, the matter was not pressed before us.

The first discrete issue arises out of the judge’s rejection of a submission at the end of the prosecution case, that the second appellant had no case to answer. The judge rejected this submission on the basis that there was material before the jury from documents which were prepared by the Ruttle Group itself stating that the second appellant was the principal contractor. The submission of Mr Lissack, QC is that, firstly, the judge failed to recognise that the fact that the second appellant was the principal contractor, did not, of itself, answer the question as to whether or not it was carrying on the undertaking which resulted in the alleged breach of duty for the purposes of section 3 of the Act. And it is submitted that, in any event, the evidence before the jury was equivocal. Although there were documents in which the second appellant had been described as the principal contractor, those had been corrected in a later document. Further, the evidence of the prosecution witnesses as to who was carrying out the work was, at the least, inconsistent.

As to the latter argument, it seems to us that the judge was fully entitled to take the view that there was material upon which the jury could conclude that the second appellant was the principal contractor. As we have already noted, the project at the farm had not been notified as it should have been to the Health and Safety Executive (the use) on Form 10 under the Construction Design and Management Regulations 1994. After the accident the HSE Inspector, Mr Connor informed a Mr Carroll, who described himself as the Group Development Officer for the Ruttle Group, of this failure. On the 14^th January 2003 the relevant form, F10 “Notification of Project” was sent to the HSE by fax. This identified the second appellant as the principal contractor. Subsequently, Mr Carroll at an interview, gave Mr Connor a document entitled “Construction Phase Health and Safety Plan” which stated that Ruttle Properties had appointed the second appellant as the principal contractor for the work to the Farm. Subsequently, a further F10 was submitted to the HSE which appeared to retract the assertion that the principal contractor was the second appellant; and it is also true that there was indeed equivocation in the oral evidence at the end of the prosecution case, as to who was the principal contractor. But it seems to us that the two documents presented by Mr Carroll were powerful evidence to support the prosecution’s assertion that the second appellant was the principal contractor.

As to whether that was sufficient to establish a prima facie case that the second appellant “conducted” the relevant undertaking, it is significant that there was, so far as we can discern, no submission based on the proposition that for the prosecution to establish that the second appellant was the principal contractor was, in itself, insufficient to establish a prima facie case. And when, after the jury had retired, a question was asked by one of its members which, in effect, raised this issue, all parties accepted that the jury should be directed that if it was satisfied that the second appellant was the principal contractor, that would impose on it the relevant duty under section 3 of the Act. In those circumstances, it seems to us that the judge was entitled to take the view, as he did at the end of the prosecution case, that if there was evidence that the second appellant was the principal contractor, that was sufficient in this case to establish a prima facie case for the purposes of section 3.

The second discrete question arises in relation to the third appellant. The charge in respect of which he was convicted was worded as follows:

“You, George Henry Ruttle, being a director of a body corporate, namely Ruttle Contracting Ltd, did on or before the 10^th day of January 2003 through your neglect, connivance or consent, cause the said body corporate to commit an offence under section 3(1) of the Health and Safety at Work etc Act 1974 in failing to ensure, in so far as was reasonably practicable, that persons not in its employment including a Shaun Riley were not exposed to risks to their health and safety in relation to the driving or use of dumper trucks at Heskin Hall Farm…..”

It is said that the judge was fundamentally wrong in two separate respects in his directions to the jury. First, in directing the jury as to “neglect, connivance or consent”, he at no stage helped the jury as to how those words could be relevant to the facts of the case, and failed to direct the jury that they had to be unanimous as to which of them was the basis upon which they could convict.

As so often is the case it is necessary to evaluate this submission in the context of the issues as they were presented to the jury. The prosecution case was that there was clear evidence that this appellant was directly involved in the works, giving specific instructions as to how they were to be performed. But perhaps and of most significance, was a signed statement that he himself made in December 2004 in which he said:

“My involvement with the Heskin Hall Farm project was considerable. It was what I would call an in-house project. I ran the job and made most of the decisions.”

There was no submission that he had no case to answer. This appellant gave no evidence. As the prosecution put it to the jury, the only sensible inference was that if it was established that the company had committed an offence, he willingly allowed it to do so or knowingly turned a blind eye to it. This is not the same sort of situation as that envisaged in the case of R –v- Brown [1984] 79 Cr App R 115 where a jury would have to be unanimous as to their findings of fact as to the basis of the prosecution’s case. Although the judge did not elaborate in his summing-up on the meanings of the three relevant words, consent, connivance and neglect, we cannot believe that the jury were in any doubt about what they meant in the context of this case. Given an adverse finding on the relevant issues of fact, the ingredients of the offence would necessarily have been proved.

The second respect in which it is said that the judge erred in the third appellant’s case in his direction to the jury was that he gave to the jury a direction that if they were satisfied that he had caused the second appellant to commit the offence through his neglect, connivance or consent, they should then go on to consider whether he had proved that it was not reasonably practicable to do more than he did. In other words he imported section 40 of the Act into the consideration of the charge under section 37. This was clearly wrong: see R –v- Davies [2003] ICR 586. But it cannot affect the safety of the conviction. The judge directed the jury, albeit wrongly, to consider the reverse burden issue, but only after they had been satisfied that the elements of the offence under section 3 had been proved against the second appellant and that it had not discharged its burden under section 40, and that he had caused that breach by his connivance, consent and neglect. Once the jury had reached that conclusion, the third appellant’s guilt had been established. The further direction was pure surplussage, and if anything favourable to the third appellant.

We turn therefore to the most substantial issue in this appeal. This relates to the way in which the prosecution case against the second appellants was left to the jury. The jury was given a written “Route to Verdict” in respect of each count. For present purposes it is only necessary to set out the terms of the “Route to Verdict” in relation to count 1, which provides a sufficient basis for understanding the nature of the argument between the appellants and the respondent before us. The document is in the following terms:

“The questions for you to consider are:

Has the prosecution proved the following matters so that you are sure of them?

Was Chargot Ltd (T/A Contract Service) the employer?

1.

Was there a risk to the health, safety and welfare of employees arising from the driving or use of dumper trucks at the site?

2.

If you are not satisfied so as to be sure of either of the above matters then the prosecution would have failed to have proved an essential ingredient in the offence and you should find the defendant Not Guilty.

3.

If you are satisfied so as to be sure that the answer to each of the above questions is “Yes”, then go on to consider the question below.

Has the defence proved that it is more likely than not that it was not reasonably practicable for Chargot Ltd (T/A Contract Services) to do more than it did in order to ensure that employees were not exposed to a risk to the health, safety and welfare of employees arsing from the driving or use of dumper trucks at this site?

If your answer to this question is “Yes” your verdict should be “Not Guilty”.

If your answer to this question is “No” and you are sure of the other ingredients (i.e. Questions 1 and 2) your verdict should be Guilty.”

The Route to Verdict in relation to Count 2 was in similar terms, appropriately changed to reflect the difference between sections 2 and 3 of the Act. Mr Lissack on behalf of the appellants submits that this direction (which was essentially repeated orally by the judge in his summing up) is fundamentally flawed. He refers us to paragraph 26 of Davies (supra) in which the court said:

“Before any question of reverse onus arises the prosecution must prove that the defendant owes the duty (in the case of section 3 to the person affected by the conduct of his undertaking) and that the safety standard (in the case of section 3 exposure to risk to health or safety) has been breached. Proof of these matters is not a formality. There may be real issues about whether the defendant owes the relevant duty or whether in fact the safety standard has been breached, for example where the cause of an accident is unknown or debatable.”

He submits that inherent in this exercise is the requirement for the prosecution to identify the scope of the duty that it alleges has been breached by reference to specific criticisms of the way in which the work has been conducted. That requires, he submits, particulars of the deficiencies alleged, which would in turn require the jury to be directed as to the need for unanimity as to at least one basis upon which the prosecution rests its case. He referred us to R –v- Beckingham [2006] EWCA Crim 773. In that case, which related to an outbreak of Legionnaires Disease in Barrow in Furness, the appellant was charged under section 7 of the Act, with failing to take reasonable care for the health and safety of herself and others who might be affected by her acts or omissions at work thereby exposing such persons to the risk of contracting the disease. The Crown served, on request, ten particulars to support the allegations. This court quashed the conviction on the basis that the judge had not specifically directed the jury that it must be unanimous on one or more of those particulars before it could convict.

It is submitted that the prosecution, in the present case, gave particulars, although not formally. In opening the case to the jury, it referred to the terms of section 2(2) in relation to the requirements as to the provision and maintenance of plant and systems of work which were safe, and the provision of such information, instruction, training and supervision as was necessary to ensure the health and safety of employees. It also referred to regulations requiring an employer to conduct suitable and sufficient assessments of the risks of health and safety to ensure that the employees who used work equipment had adequate training and ensuring that those using work equipment had adequate health and safety information and, where appropriate, written instructions. The prosecution case was that the jury could be satisfied that the appellants had not put in place any training whatsoever of employees in the safe use of the trucks, the identification of hazards, the choice of safe routes and the need to wear safety belts. There was no risk assessment.

All these, it is submitted on behalf of the appellants, could have been set out in particulars which would have enabled the jury to identify the breaches of duty alleged by the prosecution and to evaluate on the one hand whether they had been established, and on the other the extent to which the appellants had been able to show that they had taken all reasonable practicable steps to deal with any risks which might eventuate from such breaches. It is acknowledged that no request was made at trial for the prosecution to provide such particulars, and that the “Route to Verdict” was accepted by all trial counsel as an appropriate way to direct the jury in relation to these counts. Nonetheless, it is submitted, that cannot save these convictions if the verdicts are unsafe because the jury were simply not properly directed.

Mr Horlock, QC on behalf of the Crown, argues that these submissions misunderstand the structure of the relevant part of the Act. Sections 2 and 3 impose a duty to ensure a state of affairs, so far as is reasonably practicable. Section 33 makes a breach of the duty an offence; but section 40 imposes the obligation on the defence to establish that they had done everything reasonably necessary to ensure that state of affairs. The policy behind the Act is clearly to impose a positive burden on employers rather than simply disciplining them for breaches of specific obligations. That being so, the prosecution is entitled simply to point to a state of affairs as amounting to a breach of the statutory duty. That state of affairs in this case was the risk of injury arising out of the use of dumper trucks. That risk cannot be gainsaid. It eventuated in the form of the accident which killed Shaun Riley. Beckingham (supra) is of no relevance. It was a prosecution under section 7 of the Act which is not a section which brings into play the reverse burden under section 40 of the Act. A breach of the duty there was a breach of a duty “to take reasonable care”, which clearly imposed a positive obligation on the prosecution to particularise the risks in respect of which it was said that the defendant had failed to exercise reasonable care.

In our judgment, Mr Horlock’s submissions are correct. The most important analysis of the effect of the sections with which we are concerned is contained in the judgement of this court in R –v- Board of Trustees of the Science Museum [1993] 1WLR 1171, where at page 1177D the court said as follows:

“The critical question of interpretation is as follows. Was it enough for the prosecution to prove that there was a risk that L.P. (the bacterium causing Legionaires Disease) might emerge or do the prosecution have to go further and show that LP did in fact emerge into the atmosphere and be available to be inhaled? Mr Carlisle, leading counsel for the prosecution, illustrated the problem with a simple example. Imagine, he said, a loose object on a roof near a pavement. In case A the loose object is in a position in which it might fall off and hit a pedestrian. In that case there is a clear risk. In Case B, the object in fact falls and exposes a pedestrian to actual damage. In case C, the object falls and causes an actual injury to a pedestrian. The prosecution submits that exposure to risk in case A constitutes a prima facie case under section 3(1). The defence submits that section 3(1) only covers cases B and C.

The starting point must be the ordinary meaning of the language of section 3(1). In our judgment the interpretation of the prosecution fits in best with the language of section 3(1). In the context the word “risks” contains the idea of a possibility of danger. Indeed, a degree of verbal manipulation is needed to introduce the idea of actual danger which the defendants put forward. The ordinary meaning of the word “risks” therefore supports the prosecution’s interpretation there is nothing in the language of section 3 or indeed in the context of the Act, which supports a narrowing down of the ordinary meaning. On the contrary, the preventive aim of sections 3, 20, 21 and 22 reinforces the construction put forward by the prosecution and adopted by the judge. The adoption of the restrictive interpretation argued before us by the defence would make enforcement of section 3(1), and to some extent also sections 21, and 22 more difficult and would in our judgment result in a substantial emasculation of the central part of the Act of 1974. The interpretation which renders those statutory provisions effective in their role of protecting public health and safety is to be preferred.

We have not lost sight of the defence submission that we ought to concentrate on the word “exposed” rather than “risks” in section 3(1). If the word “risk” has the meaning which we consider it has, the point disappears. In that event exposure to a possibility of a danger is sufficient. The word “exposed” simply makes it clear that the section is concerned with persons potentially affected by the risk.”

Although concerned with a different factual scenario this focuses attention on the fact that it is the risk to the health and safety of the employees or the public which is the trigger for potential liability in cases under sections 2 and 3 of the Act. Once risk can be identified, that is sufficient to impose the onus on the employer or undertaker. This was recognised by the Court in Davies (supra), in paragraph 25:

“The reversal of the burden of proof takes into account the fact that duty holders are persons who have chosen to engage in work or commercial activity (probably for gain) and are in charge of it. They are not therefore unengaged or disinterested members of the public and in choosing to operate in a regulated sphere of activity they must be taken to have accepted the regulatory controls that go with it. This regulatory regime imposes a continuing duty to ensure a state of affairs, a safety standard. Where the enforcing authority can show that this has not been achieved it is not “unjustifiable” or unfair “to ask” the duty holder who “has” either created or is in control of the risk to show that it was not reasonably practicable for him to have done more than he did to prevent or avoid it.”

In a later passage in paragraph 29, in the context of whether or not the burden was a legal or an evidential one, the court said:

“If all the defendant had to do was to raise the defence in order to require the prosecution to disprove it, the focus of the statutory scheme would be changed. The trial would become focused on what it was the enforcing authority was saying should have been done rather than on what the defendant had done or ought to have done which is what Parliament intended.”

In the present case, the prosecution, in our view, clearly established the relevant risk, namely of injury caused by driving the dumper truck. That it was a real risk, as opposed to a purely hypothetical one, was established by the fact that there was the accident. That was in our view sufficient to justify the requirement that the first and second appellants should have the burden of proving that they had done all that was reasonably practicable to protect against that risk. It might have been different if the state of affairs which was alleged to amount to a breach of duty by the employer or undertaker could not be shown to have any causal link to the employment or the undertaking in question. That appears to us to be what this court had in mind in paragraph 26 of Davies. That is not this case.

Finally, in relation to the directions and the “Route to the Verdict” Mr Lissack takes issue with the way in which the judge expressed the standard of proof imposed on the appellants. He submits that the use of the phrase “more likely than not” proposes a standard higher than the balance of probabilities. We do not consider that the jury could possibly have been misled into imposing too high a burden by the use of those words.

These appeals against conviction are dismissed.

We return then to the renewed application for leave to appeal against sentence. There is no doubt that these were very substantial fines. But the businesses in question were clearly very substantial businesses. For example, the turnover of Chargot Ltd was in excess of £4,000,000 per annum. This gives an indication of the substantial numbers employed by the Ruttle Group. Mr Lissack, however, submits that nonetheless the levels of the fines were manifestly excessive and could only be explained by the judge taking an unjustified and extreme view of the behaviour of the appellants. This is exemplified, he says, by the following in his sentencing remarks.

In commenting on the evidence of the appellants’ expert Dr Searle, he said:

“Dr Searle left the witness box thoroughly discredited. His presentation fitted with a pattern that emerged throughout this case from the very first days of the investigation of putting up smoke screens and doing everything possible to evade responsibility to place the blame on others. The degree of personal criticism of individuals which was not merely ill advised and unattractive but, in my judgment a serious aggravating feature and that is particularly so in respect of the personal liability in the case of Mr Ruttle who is, as the prosecution accurately submitted the personification of the Group.”

Commenting on the defence of the second appellant, which was mainly to the effect that another company in the group, Ruttle Plant Hire Ltd, was the company undertaking the work, the judge concluded that the appellants generally had sought to muddy the waters, and that the third appellant himself had been a party to this. He expressed strong views about the attempt to stay the proceedings as an abuse of process. He described the third appellant as “a greedy and ruthless business man with no moral scruples”.

These were undoubtedly strong words. But they need to be read in the context of a prosecution which had its origin in a tragic accident in which a young father of two had been killed. The evidence established that, in effect, no thought had been given to health and safety matters. This would appear to have been because the work in question was what was described as “in-house”, in other words not part of the general business of the companies, and done on a relatively ad hoc basis when employees were available to do it. The judge took into account their previous good safety record, but clearly considered, and was fully entitled to do so, that whilst this is not a case of either the companies or the third appellant deliberately taking risks, there was such a serious breach of the requirements of the Act that only very substantial fines, within the means of the appellants, were necessary. We agree. And it is not suggested that the fines were in anyway beyond the means of these appellants. Accordingly we see no basis upon which the sentences could be said to be manifestly excessive.