Health and Safety at Work Act leading cases (4)
Reasonable practicability
R v Nelson Group Services (Maintenance) Ltd (1999)
N Ltd employed a large number of gas fitters. It was charged with a number of offences under the 1974 Act in relation to unsafe practices in work on gas appliances. At the Crown Court trial the judge directed the jury on the issue of reasonable practicability. N Ltd was convicted on all counts. It appealed to the Court of Appeal. It accepted that gas fittings had been left in such a state that the occupants of houses had been exposed to risk to their health and safety. The question was whether this alone made N guilty of an offence.
The appeal was allowed. The fact that an employee has done work carelessly does not preclude an employer from establishing a defence of reasonable practicability. The question of what is reasonably practicable is a question of fact for the jury depending upon the circumstances of the case.
Unsupervised swimming
R (Hampstead Heath Winter Swimming Club and another) v Corporation of London (2005)
Three ponds on Hampstead Heath had been used for swimming for many years. Changes to the opening hours of one of the ponds meant that it was not open early in the morning or during winter months. A number of swimmers asked the Corporation of London to permit unsupervised swimming outside opening hours, on early winter mornings, for a controlled group of swimmers willing to absolve the Corporation from civil liability. The Corporation refused because it stated that it might be prosecuted under the 1974 Act because swimmers would be exposed to risks to their health and safety by the conduct of the Corporation’s undertaking. The swimmers applied for judicial review of this decision.
The application was allowed. If an adult swimmer with knowledge of the risks of swimming chose to swim unsupervised, then the risks which he or she incurred were the result of that choice and not of the permission given to him or her to swim.
Also, the swimmers would be exposed to risk as they drove or walked or ran to the pond and as they travelled from the pond to their work or homes. The risks were not the result of the conduct by the Corporation of its undertaking and it was not liable to be convicted for an offence. The Corporation’s decision had been based on a mistake of law.
If an adult swimmer with knowledge of the risks of unsupervised swimming had a mishap, the local authority owner of the pool would not be liable. It was the swimmer’s choice, rather than the municipality’s permission to use the pool, which was the ultimate cause of the risk.
Indoor play centre
Moualem v Carlisle City Council (1994)
M controlled an indoor play centre for children. Carlisle City Council issued improvement notices relating to fittings and equipment at the centre. He was later convicted by the magistrates’ court for failing to comply with the notices. On appeal, the High Court ruled that the protection provided by the Act extended to children attending an indoor play centre.