R v Associated Octel Ltd
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE McKINNON |
| Judgment Date | 29 October 1996 |
| Neutral Citation | [1996] EWCA Crim J1029-3 |
| Judgment citation (vLex) | [1994] EWCA Crim J0719-1 |
| Docket Number | No. 93/2101/X5,No: 9601377/X5 |
| Court | Court of Appeal (Criminal Division) |
| Date | 29 October 1996 |
[1994] EWCA Crim J0719-1
Before: Lord Justice Stuart Smith Mr. Justice Kay and Mr. Justice Dyson
No. 93/2101/X5
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
MR. H. CARLISLE Q.C. appeared on behalf of the Crown.
MR. R. WALKER Q.C. and MR. J. WALTERS appeared on behalf of the Appellant.
LORD JUSTICE STUART-SMITH: On 19th March 1993, in the Crown Court at Chester before His Honour Judge Prosser and a jury, the appellant company was convicted of an offence of failing to discharge a duty to which it was subject by virtue of section 3 of the Health and Safety at Work Act 1974 ("the Act") and was fined £25,000 and ordered to pay £60,000 towards the costs of the prosecution. The appellant now appeals against that conviction with the leave of the single judge.
The prosecution arose from an accident that occurred on 25th June 1990 at the appellant's chemical plant at Ellesmere Port which resulted in serious injury to an employee of a firm of contractors carrying out work at the premises. The firm of contractors, Resin Glass Products Ltd ("RGP") was also prosecuted and admitted an offence of failing to discharge the duty imposed by section 2 of the same Act.
It was the appellant's practice to shut down the chemical plant annually for pre-planned maintenance and repair. Amongst the work planned for the 1990 shut-down was the repair of the lining of a tank within the chlorine plant, which was situated in a separate building on the site. This work was entrusted to RGP, who were specialist contractors. RGP had for many years carried out work for the appellant and indeed its employees worked at the appellant's sites virtually all the time.
The particular task was assigned by RGP to one of its employees, Eric Cuthbert. It required the grinding down of damaged areas within the tank, cleaning dust from the surfaces after grinding and the application of fibreglass matting with resin to provide a patch. To effect the work, Mr. Cuthbert had to enter the tank and it was necessary for him to take in lighting so that he could see to work. Once the grinding was complete, the cleaning was done by removing the surface debris with a brush and then washing any residue off with a solvent, acetone, applied with a paint brush. Acetone is a highly inflammable substance.
Whilst Mr. Cuthbert was inside the tank, the bulb of the light that he was using suddenly broke probably as a result of acetone dripping on to it and the electric current caused the acetone vapour to ignite. There was a flash fire and explosion which badly burned Mr Cuthbert.
Three aspects of the carrying out the work were highlighted by the factory inspectors as unsafe. The acetone was contained in an open bucket which permitted vapour to be given off. It was suggested that use should have been made of a closed container. Secondly the lamp was not a safety lamp and the prosecution contended that an air lamp should have been employed. Thirdly it was said that forced ventilation should have been provided.
Before turning to consider the grounds of appeal and the law relating to an offence of the kind alleged, it is necessary to examine the safety arrangements for the carrying out of this work that were revealed by the evidence. This information was provided by documents seized from the appellant on behalf of the Health and Safety Executive after notification of the accident and produced by a factory inspector and the evidence of Mr. Cuthbert and another employee of RGP who was working with him.
The appellant's chemical plant was designated as a "major hazard site" and as such was subject to the Control of Industrial Major Accident Hazards Regulations, Regulation 7 of which required the appellant to submit to the Health and Safety Executive a safety report. That report entitled "Safety Case, Associated Octel Company Limited, Ellesmere Port Site" was produced in evidence. Two parts of the report were highlighted by the prosecution in opening the case to the jury.
As a part of the appellant's Health, Safety and Environmental Policy contained within the Safety Case, it was stated that Works/Departmental/Establishment policy documents must recognise a number of established principles which included:
"Employees, contractors and visitors will be informed, through training and instruction, of roles, systems of work, practices and procedures so that they can carry out work without risk to themselves or others".
Paragraph 3.2 of Appendix 6 of the Safety Case contained the statement:
"Construction work is planned and co-ordinated by engineers using approved contractors. All contractors employing over two workers on site must include a supervisor. All contractors working on site must conform to the permit to work system".
The Permit to Work System operated by the appellant was proved by its booklet "Safety Certificates and Permits" which was produced in the same way. Section 5 of that booklet dealt with Contractor's Permits to Work. It stated the purpose of the system as:
"To provide for the effective control of the Contractor's employees and staff within operational areas. To ensure that all the Contractor's staff and operating personnel are informed of the adequate precautions to be taken to safeguard the persons detailed to work in operational areas".
The Contractor's Permit to Work was a three part document. Section A was to be completed by the Project Engineer, the Chief Clerk of Works or some other appointed issuing authority, Section B by the Maintenance Engineer of the area in which the work was to be done and Section C by the Safety Officer or Process Foreman.
The Procedure for Use was defined and the relevant parts read:
"Section A of the Contractor's Permit to Work is completed in order to notify Works staff that certain operations are to take place. Adequate information must be given to enable the authorising Engineer to assess the risks and prescribe safe working conditions which he does in Section B…
The issuing authority will hand the top copy to the Contractor (or his appointed representative) who will sign as having understood the provisions of the permit and will retain the top copy throughout the course of the work, returning it to the Maintenance Foreman's office each evening and collecting it next working day after it has been authorised for the current day's work…".
As well as producing this documentation relating to the appellant's system, the prosecution also produced from the appellant's records a series of documents that related to the specific work resulting in the accident. These included RGP's specification for carrying out the work which included:
"The vessel would be ground to a rough surface to give good adhesion. This will need extraction and men to wear full suit protection. We would supply the extraction".
The relevant Contractor's Permit to Work was produced. It related to four separate items of work including the one which resulted in the accident. Section A stated that the work was to be carried out by approximately two men under the control of "J. Buckley, the contractor's supervisor". The only relevant details of the work given were "refurbish ejector water tank" in Dechlorination Plant, No. 1 Cell Hall. Details required as to tools or equipment to be used were given as "Hand tools, grinder" and the question "Will any spark producing tools or equipment be used?" was answered "Yes".
Section B which was completed and signed by the Maintenance Engineer made the requirement "Each job must have its own Safety Certificate and where appropriate vessel entry and flame certificate". There was a part which was available for stipulating any additional precautions that were required but nothing additional was added in this section.
The resulting General Safety and Vessel Entry certificates were produced. The latter recorded the carrying out of a test for toxicity within the tank and the result. It provided that entry was permitted provided that safety equipment as detailed in the General Safety Certificate was worn.
The General Safety Certificate was on the appellant's standard form for such a certificate. It carried the printed requirement "All precautions detailed below must be taken before job is commenced". There were a number of pre-printed requirements that were completed either by deletion of one of the alternatives "is/is not required" or by the ticking of a box. In the former category requirements were made in relation to this work by the appellant for use of a scaffold or ladder and for a safety attendant. The wearing of safety equipment was provided for by ticking boxes for a full face air mask, a protective suit and protective gloves.
There was then a section headed "Obtain the following equipment before starting work". One item listed on the form so that it could be specified was an air lamp. None of the items were ticked and the prosecution drew attention to that fact.
A section headed "Further Precautions" was completed by adding:
"Plant shut down. Tank to be washed and drained out. Contact operator before starting work. See Vessel Certificate."
The evidence as to how these safety provisions were actually utilised was provided by Mr. Cuthbert and the fellow employee who had been working with him. Mr. Cuthbert explained that the dust extractor had been connected up the previous week. On the day of his accident, he was instructed by RGP's supervisor, Mr. Buckley, to carry out the particular piece of work. They then waited whilst one of the appellant's laboratory technicians carried out the test for toxicity referred to in the Vessel Entry certificate and...
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