REAL RISK
Death of child
R v Porter (2008)
P was the headmaster of a private school aged 3 to 16. The school had two playgrounds, access between which was by a set of steps. In July 2004 a number of children were in both playgrounds during morning break. There was one teacher on duty in the upper playground. K, a boy aged three, went down the steps and jumped from the fourth from bottom step. He fell and injured his head. He was taken to hospital where he contracted MRSA and died.
P was charged under section 3 of the 1974 Act. It was alleged that he had exposed the boy to the risk of falling from the flight of steps. He was convicted and fined £12,500 plus £7500 costs. He appealed to the Court of Appeal. The appeal was allowed. The court stated the following:
The conviction was unsafe.
The prosecution had to establish that the accused had failed to ensure that a child had not been exposed to risk to his safety by the conduct of an undertaking.
The risk which the prosecution had to prove was a real risk as opposed to a fanciful or hypothetical risk.
There was no objective standard which applied to every case but there would be important factors which would indicate one way or the other whether there was such a risk.
There was nothing wrong with the construction of the steps themselves and there had been no previous accidents despite the fact that there were numerous steps from which a child might have chosen to jump.
The fact that risk was a part of everyday life went to the issue of whether an injured person had been exposed to real risk by the conduct of the operation in question.
SAFETY RISK
Race discrimination
Amnesty International v Ahmed (2009)
A, a woman of North Sudanese origin, was employed by Amnesty International, She applied for promotion to the post of Sudan Researcher. Her promotion was denied because Amnesty took the view that the appointment of a person of A’s ethnic origins would compromise its perceived impartiality and would expose her to a safety risk when visiting Sudan and Eastern Chad. A resigned and complained of direct race discrimination. The employment tribunal upheld her complaint and made the following points:
But for her ethnic origin, A would have been appointed.
Her ethnic origin was the sole reason for the withdrawal of the appointment.
The decision of the employer had not been taken purely on health and safety grounds.
Race was the driving factor behind the decision.
Amnesty appealed to the Employment Appeal Tribunal (EAT) which dismissed the appeal and made the following points:
The basic question in direct discrimination cases was what the grounds were for the treatment complained of.
The fact that the employer’s reason for refusing promotion was its concern about impartiality and safety was irrelevant.
A had been discriminated against on the ground of her ethnic origins.
If there was a risk in sending A to Eastern Chad, the employer could avoid that risk by not sending her there.
What was going on in the head of the putative discriminator was irrelevant.
The EAT commented that it felt some unease at being required to reach a conclusion which might have implications for other employers whose employees were required to work abroad in situations of acute political or ethnic tension. No doubt such cases were rare, but where they did occur, employers would be in a highly invidious position.
Liability of company: all reasonable precautions taken
R v Gateway Foodmarkets Ltd (1996)
An employee of G Ltd fell down a lift shaft at one of its stores and suffered fatal injuries. Maintenance of the lift had been contracted out to a reputable and experienced contractor. The lift was faulty. An electrical contact had to be freed by hand and it had become the practice for personnel to do this regularly. The worker who had died had attempted to free the contact when he fell through a trap door which had been left open by the contractor. G Ltd was prosecuted under section 2 of the 1974 Act. At first instance the Crown Court ruled that G Ltd was liable because section 2 imposed strict liability, subject to reasonable practicability. The company’s employees had caused a breach of the section. G Ltd appealed to the Court of Appeal.
The appeal was dismissed. The court stated that it was overwhelmingly clear that section 2 should be interpreted to impose liability on employers whenever there was a failure to ensure the health, safety and welfare of employees. It was not necessary for the prosecution to prove criminal intent. In the present case, the failure to take all reasonable precautions had been at store management level. This was attributable to the company, even though at senior management or head office level, the company had taken all reasonable precautions.
Details of offences charged
Maersk Co Ltd v Vannet (1997)
M Co was charged with offences under sections 2 and 3 of the 1974 Act. The charges alleged that a skip operated with the company, which should have been lifted by means of placing the eyes of lifting slings on trunnions on the side of the skip, had been unsuitable. In the course of lifting the skip two employees had been injured. The company objected to the charges on the basis that it did not specify the defect in the system of work, plant or equipment which gave rise to the risk.
The Scottish court ruled that the statement of the charges was sufficient to give notice of the existence and nature of a risk of injury to employees and persons not employed by the accused.
The charges contained allegations as to the context in which the accident happened. The prosecution had given fair notice of the general manner in which the risk arose. It was not necessary for the prosecution to go on to specify or explain how it was that the risk in question came to emerge.
Section 3: actual control
RMC Roadstone Products Ltd v Jester (1994)
R Ltd was engaged in manufacturing road building materials. It engaged two independent contractors, D and P, to replace asbestos sheets on R Ltd’s premises. D and P were told to use old asbestos sheets from the roof of a disused factory next to R Ltd’s premises. They were told to remove the sheets. A front-loading shovel was supplied by R Ltd. It was found by the magistrates’ court that R Ltd could give directions to D and P on the way in which the work was done, but that in fact they were left to do it in any way they chose. R Ltd did not provide a safe system of work and was not under a duty to do so.
While D was removing asbestos sheets from the roof, he fell through a skylight and was killed. R Ltd was prosecuted and convicted under section 3 of the 1974 Act for failing to discharge its duty to conduct its undertaking in such a way that persons not in its employment were not exposed to risks to their health. R Ltd appealed to the Divisional Court.
The appeal was allowed. The Divisional Court ruled as follows:
The prosecution had to establish three matters for liability under section 3. First, the accused must be an employer; second, the activity or state of affairs giving rise to the complaint must fall within the scope of the accused’s conduct of its undertaking; and there must be a risk to the health and safety or persons other than employees.
The word “undertaking” meant “business or enterprise”. It was inconceivable that Parliament should have intended that there should be criminal liability where an employer had no control. It was necessary for an employer either to exercise actual control or to be under a duty to do so. Where an employer left an independent contractor to work in the way which he saw fit, then that work should be outside the scope of the “undertaking”.
If R Ltd was under a duty to provide a safe system of work for the independent contractors, then its duty under the Act would extend beyond that imposed by the civil law. The Act was not intended to go beyond the common law.
The magistrates had not been entitled to find that D’s work in removing the sheets was within the scope of R Ltd’s conduct of its undertaking.
Note: one difficulty with this case is that it may mean that employers can avoid all responsibility for the safety of independent contractors by refusing to give instructions on how work is done. On the other hand, if an employer gives directions on how the work is to be done, then that employer will remain liable under the Act.