R v B&Q Plc
| Jurisdiction | England & Wales |
| Judge | Lord Justice Thomas |
| Judgment Date | 20 January 2006 |
| Neutral Citation | [2005] EWCA Crim 2297,[2006] EWCA Crim 5 |
| Date | 20 January 2006 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | Case No: 200403870/B3,Case No: 20044 03870/B3 |
[2005] EWCA Crim 2297
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM BOURNEMOUTH CROWN COURT
His Honour Judge Jarvis
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Thomas
Mr Justice Grigson and
The Recorder Of Cardiff
(sitting As A Judge Of Appeal Criminal Division)
Case No: 20044 03870/B3
Peter Rouch QC and Malcolm Gibney (instructed by Bond Pearce,) for the Appellant
George B Alliott (instructed by the Head of Legal and Democratic Services of the Borough of Poole) for the Respondent
1. On 16 June 2001, Pamela Hinchliffe visited a store operated by B&Q plc, the appellants, at Poole Dorset to buy some cement for her husband. She went to the external yard and talked to an employee, Mr McKenzie.
2. At that moment another employee of the appellants, Mr Nicholls was manoeuvring a forklift truck. He reversed it; it struck a glancing blow to Mr McKenzie and crushed Mrs Hinchliffe against some metallic shelving. Mrs Hinchliffe died of her injuries shortly thereafter.
3. The appellants were prosecuted under the Health and Safety at Work Act 1974. They faced, initially, a 12 count indictment, but not guilty verdicts were directed on 4 of those counts by HH Judge Jarvis prior to the commencement of the trial in May 2004. As presented to the jury there were 8 counts on the indictment.
i) Counts 1, 3 and 7 alleged a breach of duty under s. 2(1) of the Act; that subsection sets out the duties to the employees of the appellants. Those counts related to incidents involving fork lift trucks on the 17 January 2001, 21 March 2001 and to the fatal accident on 16 June 2001 to which we have referred.
ii) Counts 2, 4, 5, 6 and 8 alleged a breach of duty under s. 3(1) of the Act; that subsection set out the duty owed to non-employees. Those counts were in respect of incidents involving fork lift truck movements on 21 February 2001, 7 June 2001, 11 June 2001, 15 June 2001 as well as the fatal accident on 16 June 2001.
From this short summary, it can be seen that counts 7 and 8 dealt with the position of the employee and the non-employee in respect of the fatal accident on 16 June 2001.
4. The provisions of s.2(1) and s 3(1) were as follows:
"s. 2(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."
"s. 3(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 risks to their health and safety."
5. After a trial before HH Judge Jarvis and a jury, on 8 June 2004 the jury found the appellants guilty on the counts laid under s. 3(1) but not guilty under the counts under s. 2(1).
6. The appellants were subsequently fined £40,000 on count 2, £60,000 on count 4, £70,000 on count 5, £80,000 on count 6, £300,000 on count 8; the total fine was £550,00. They were ordered to pay £250,000 towards the prosecution costs.
7. The appellants appeal against conviction and sentence by leave of the single judge and renew their application for leave to appeal against conviction on one other ground.
(1) Were the verdicts of the jury inconsistent?
8. The sole ground upon which leave to appeal was given by the single judge was on the issue of whether the verdicts of the jury were inconsistent; the primary argument advanced by the appellants was that it was wholly illogical for the jury to have returned verdicts of guilty and not guilty in respect of the same fatal accident.
(a) The case for the prosecution
9. It was the prosecution case throughout that the appellants had failed to ensure that so far as was reasonably practicable the fork lift truck movements on the sales floor were tended at all times by a banksman, thereby exposing employees (in the counts involving employees) or non-employees (in the counts involving non-employees) to the risk of being struck by a fork lift truck. In presenting their case therefore the prosecution made no differentiation between employees and non-employees. It was contended that a banksman should have been employed and the appellant's failure to do so was in the circumstances a breach of duty. The indictment charged the appellants with exposing employees and non employees respectively with exposure to that risk; "risks to health and safety" are the words used in s.3 (1), though not in s 2(1).
(b)The directions to the jury
10. The judge carefully directed the jury that they should consider each of the counts separately, that the evidence on each was different and therefore their verdicts might not be the same. The judge then set out the different statutory language of s.2(1) and s 3(1) and continued:
"If the Crown has made you sure that the employer has failed in the discharge of either one or both of these duties then the employer has committed an offence. The burden of establishing the existence of this duty in this case and the failure to discharge this duty rests upon the Crown, the prosecution, and in the discharging this burden the Crown must make you sure that this duty was required in this case and that there was a failure to discharge it. It is an absolute liability subject only to the defence of reasonable practicability to which I shall refer later".
11. The Judge then referred in a little more detail to the ingredients of the offences and continued:
"As Mr Alliott, counsel for the prosecution said in his opening to you, you will have to be satisfied that B&Q is an employer. An allegation under section 2 requires that the prosecution prove that it happened at work, thus you will need to be sure when you are considering the section 2 allegations that you are sure that the allegations set out in the particulars of offence in each count took place at work.
So far as the section 3 allegations are concerned, the prosecution must make you sure that the matters complained of in the relevant particulars of offence occurred in the conduct of the defendant company's undertaking. You will then move on to consider if you are sure that to allow or fail to prevent forklift truck movements on the sales floor being attended at all times by a banksman exposed either employees in the section 2 case, or persons not in their employment in the section 3 case, to a risk to their safety, namely the risk of being struck by a forklift truck. The prosecution only have to show that there was a risk to their safety. It does not have to prove that any harm or injury actually took place.
The last ingredient you will need to consider is this. Are we sure that the defendant company to which local management at the store either allowed or failed to prevent the use of forklift trucks operating without a banksman in attendance at all times. If the Crown has not made you sure that a duty existed and that there has been a failure then that is the end of the matter on whatever count you are at that time considering."
12. Then after dealing with the burden of proof on the question of reasonable practicability the learned judge continued:
"Members of the jury, the question of what is reasonably practicable is a matter for you, the jury. The degree of risk in a particular activity or environment can be balanced against the time, cost, trouble and physical difficulties of taking measures to avoid the risk. If these are so disproportionate to the risk that it would be quite unreasonable for the persons concerned to have to incur them to prevent it, they are not obliged to do so. The greater the risk, the more likely it is reasonable to go to very substantial expense, trouble and invention to reduce it, but if the consequences and the extent of a risk are small, insistence on great expense would not be considered reasonable. It is important to remember that the size or financial position of the employer is not taken into account.
The employer's duty to take all reasonably practicable steps includes ensuring that employees have the requisite levels of skill and instruction and have been provided with safe plant and equipment, but the fact that an employee in carrying out work did so carelessly, or omitted to take the necessary precaution, does not of itself prevent the employer from establishing that he has done everything practicable to avoid risk".
13. It is clear from these directions that, although the learned judge drew no distinction between the wording of s. 2(1) and s. 3 (1), he did stress in his very clear directions that the question of duty, breach and reasonable practicability were questions for the jury.
14. No criticism was or could be made of these directions.
15. It was common ground at the trial that when the forklift truck manoeuvres were taking place an employee of the appellants should have been employed as a banksman, whether or not employees or members of the public were present. It was the evidence that the appellants had a safety system that should have provided for the employment of a banksman in such circumstances. It was the appellants' case that the management in Bournemouth had done all they could to ensure a banksman was employed when forklift truck manoeuvres were taking place; indeed some of the evidence was to the effect that banksmen were employed at the time of the incidents charged in the indictment. The case for the prosecution was that banksmen were not employed on those occasions and the management had not done all that was reasonably practicable.
(c) The respective submissions
16. It was submitted...
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