1. Health & Safety Law: Recent Developments
9 December 2008

2. Patron Saint of Chief Fire Officers?
Janus

3. Health and Safety at Work Act 1974
“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”
S3(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 those not in his employment who may be affected … are not thereby exposed to risks to health and safety”

4. Edwards v The National Coal Board
“Computation … in which the quantum of risk is placed on one side and the sacrifice involved in the measures necessary for averting the risk is placed on the other and if there is a gross disproportion – the risk being insignificant in relation to the sacrifice – the defendant’s discharge the onus on them”

5. S40 – puts onus of proving reasonable practicability on defendant
Regulation 21 of Management of Heath & Safety at Work Regulation
“Nothing in the relevant statutory provisions shall operate so as to afford an employer a defence in any criminal proceedings by reason of any act or default of an employee of his”

6. Recent groundbreaking cases
Hampstead Heath Swimming Club v Corporation of London and HSE
HSE v HTM Ltd
R v Chargot Ltd (t/a Contract Services) and others
R v Porter
De Menzes case

7. Hampstead Heath Swimming Club v Corporation of London and HSE
Risk generated by decision to swim not the undertaking
Caution should be used when construing HSWA with reference to the civil law cases
HSWA and decisions on breach must be looked at on case by case basis
Voluntary risk must be taken into account as part of above equation
Public Policy requires a balance between individual freedom of action and control measures

8. R v HTM
Issue of forseeability is relevant to determining reasonable practicability
Forseeability is a tool which can be used to assess the likelihood of a risk eventuating
Forseeability is not a way to apportion blame to employees
Reasonable practicability is not a defence, merely qualifies duty
Will not necessarily be liable for acts of junior employees

9. R v Chargot Do not need to particularise factors of the breach
It is enough to establish relevant risk existed
Risk must be real not hypothetical
Accident occurred is important
May be different if no causal link
Appealed to House of Lords - judgement due on 10 December

10. R v Porter Prosecution to prove real risk
Distinction between a real risk and a hypothetical one is not prescribed
Issue for Jury to determine
Jury can take any factor into consideration (including good record or absence of accidents)
If risk not real then conviction will be unsafe

11. De Menezes Application of CPS of section 3 of HSWA
Much disquiet about application of legislation intended for industrial issues
Strict liability offence
Easier to prove than other common law criminal offences

12. Lessons learned Facts of case will dictate approach
Voluntary risk taking and every day risks may not be within scope of undertaking
Foreseeability tool for helping determine issue of reasonable practicability
Only need to show possibility of danger not exact nature of breach
Liability may not attach if failing of junior employee

13. Enforcement Consider Likelihood of risk occurring Record Near misses
Previous incidents
Systems as whole v local failing

14. Other developments
Consultation on use of section 3 in emergency situations
Health and Safety Offences Act 2008
Consultation on draft sentencing guidelines:
The new regime – Sentencing Advisory Panel
2.5-10% of turnover for manslaughter
1-7.5% for health & safety

15. Hilary Ross
Partner
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