Health and Safety at Work Act - evidence of employees’ negligence

The Court of Appeal has made an important ruling in the case of R v HTM which assists employers who defend health and safety prosecutions in cases where their employees have not followed the correct procedures. In such cases it will be open to employers to argue that they have discharged their safety duties, ‘so far as it is reasonably practicable’ by providing safe systems of work, training and instructions, notwithstanding a 1999 amendment to UK health and safety legislation which had been thought to rule this line of defence out.

This was an unusual case before the Court of Appeal which was required to determine points of law argued in advance of the trial of the company on charges under the Health and Safety at Work Act (HSWA).

The circumstances of the case

HTM was accused of failing to ensure the safety of its employees in breach of Section 2 (1) of the HSWA. The company had provided traffic management services and equipment to contractors carrying out re-surfacing work on a road. Two HTM employees were killed when equipment they were moving came into contact with high voltage overhead cables.

HTM wished to call evidence at its trial that it had taken all reasonably practicable steps to ensure the men’s safety (including training and instructions), that the accident was a result of their own actions, and that it was not foreseeable by the company that they would act as they did or in a way that would require further precautions by the company. These points of law were considered at a pre-trial hearing. The judge ruled in HTM’s favour on both points, and the HSE appealed.

The points of law

The case concerned the relationship between two provisions which provide as follows:

Section 2 (1) HSWA - “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.”

Regulation 21 MHSW - “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 for default.”

Two questions arose:

(a) whether evidence of forseeability was irrelevant to the case alleged against the company, particularly with regard to the reasonable practicability of ensuring the health, safety and welfare of its employees

(b) whether Regulation 21 of the Management of Health and Safety at Work Regulations 1999 precludes the company from relying upon any act or default of its employees in its defence.

The Court of Appeal’s decision

Question (a)

The notion of ‘forseeability’ of harm is traditionally an element in determining civil liability but not criminal liability under health and safety legislation. A number of previous cases have interpreted the phrase ‘so far as is reasonably practicable’ (which qualifies the duty to ensure safety in health and safety legislation) as containing no element of forseeability (reasonable or otherwise).

In the HTM case, the Court of Appeal preferred instead the approach of Lord Goff in the House of Lords decision in the case of Austin Rover Group Ltd v HM Inspector of Factories (1990) which was that forseeability is relevant to the narrow issue of the likelihood of a risk eventuating. This in turn is relevant to applying established formula for assessing whether a defendant has done all that is reasonable practicable given in Edwards v National Coal Board (1949) which involves weighing up the quantum of risk against the difficulty and cost necessary to eliminate it to see if there is a gross disproportion between them. Lord Justice Latham said in the HTM case, that “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”.

Question (b)

Regulation 21 of the MHWR was introduced to correct what was considered to be a failure properly to implement the European framework Directive 89/391. This was always a somewhat questionable need, but the wide wording of the resulting regulation was also intended to reverse the effect of an earlier Court of Appeal decision of R v Nelson Group Services (Maintenance) (1999). It was held there that where there has been carelessness or a failure to follow correct procedures by an employee this does not preclude the employer from establishing that everything reasonably practicable had been done.

Most commentators believed that the opportunity to defend charges based on the Nelson decision had not survived the Regulation 21 bar on employee-fault defences, not least because numerous appellate courts had freely referred to the “reasonably practicable defence” in earlier analysis of the legislation, and in practice it operates like other statutory defences in that the burden of proof is on a defendant to show that it took all reasonably practicable measures. However, the Court of Appeal in HTM analysed the ‘so far as reasonably practicable’ phrase not as a defence but merely one element of the employer’s overall duty under the relevant sections of the HSWA. So, in the absence of a true ‘defence’ written into the HSWA, the wording of Regulation 21 does not prevent an employer demonstrating it had taken all reasonably practicable precautions by evidence at trial.

Conclusions

The Court of Appeal has a chequered history of interpretating the HSWA, and has often found policy reasons to block routes devised by employers to avoid or reduce their liability. In this instance its apparently bold approach to the previous authorities and its unwillingness to adopt the HSE’s arguments may have been influenced by the fact that the merits or otherwise of HTM’s case would still have to be decided by the jury in the Crown Court. In practice the decision will alter the outcome of only a small number of cases, as HSE prosecution evidence is usually sufficient to show management failings preceding the negligent acts or omissions of employees causing accidents.

The decision is undoubtedly controversial. The Court of Appeal was prepared to certify that questions of law of general public importance, but in August 2006 the House of Lords declined to hear a further appeal by the HSE.