R v British Steel Plc
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE STEYN,MR JUSTICE COLLINS |
| Judgment Date | 20 December 1994 |
| Judgment citation (vLex) | [1994] EWCA Crim J1220-9 |
| Docket Number | No. 93/2597/Y5 |
| Court | Court of Appeal (Criminal Division) |
| Date | 20 December 1994 |
[1994] EWCA Crim J1220-9
IN THE COURT OF APPEAL CRIMINAL DIVISION
Before: Lord Justice Steyn Mr Justice Mantell and Mr Justice Collins
No. 93/2597/Y5
MR A GOLDSAUB QC appeared on behalf of the Appellant
MR H CARLISLE QC appeared on behalf of the Crown
This is the judgment of the Court to which all members of the Court have contributed. On 29th July 1990 a fatal accident occurred at a plant of British Steel PLC in Sheffield. In April 1993 British Steel pleaded not guilty to a charge of failing to discharge the duty imposed upon them by section 3(1) of the Health and Safety at Work Etc. Act 1974 to a person not in their employment, contrary to section 33(1) of the 1974 Act. Section 3(1) reads as follows:
"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 or safety."
The burden of proving that it was not reasonably practicable to do more than was in fact done rested on British Steel: section 40. The particulars of the offence charged against British Steel were as follows:
"British Steel PLC on the 29th day of July 1990 being an employer failed to conduct their undertaking including their British Steel Stainless Plant at Shepcote Lane, Sheffield in such a way as to ensure so far as was reasonably practicable that Mark Gasgoigne and John Coullie being persons not in the employment of British Steel PLC were not thereby exposed to risks to their health and safety."
After a five day trial before His Honour Judge Crabtree and a jury, British Steel were convicted of the offence charged by a majority verdict of ten to two. They were sentenced to a fine of £100.
The trial
At the trial there was no dispute about the cause of the accident. In July 1990 British Steel wanted to reposition a 7.5 tonne section of steel platform at their plant at Shepcote Lane, Sheffield. The operation involved cutting the platform free of its supports and moving it by crane to a new position. Subcontractors provided two men to carry out the repositioning of the platform. The men were Mr. Coullie, a welder, and Mr. Gascoigne, a plater. The subcontract was on a labour only basis, with equipment and supervision being provided by British Steel. Mr. Crabb, a section engineer in the employment of British Steel, was responsible for the supervision of the repositioning of the platform. On 29th July 1990 the two men cut the platform free of nearly all its supports. They neglected to secure it to a crane or by means of temporary props. The platform was unstable. Mr. Coullie worked immediately underneath the platform. Mr. Gascoigne stepped onto the platform. It collapsed and fell on Mr. Coullie causing him fatal injuries.
The central plank of the prosecution case was the accident itself. But the prosecution also called Mr. Purtee, a specialist building inspector, who carried out an investigation into the accident. He said that after the platform was cut free of most of its supports it was liable to collapse at any time. He likened the platform in that state to attempting to balance a table mat on four pencils. He emphasised that the repositioning operation was inherently dangerous. He said that clear instructions and periodic inspections were required. He said that British Steel's delegation of responsibility for supervision to Mr. Crabb was perfectly acceptable. He was an experienced section engineer with a grade immediately above foreman. On the other hand, Mr. Purtee said that Mr. Crabb did not plan and supervise the operation properly. Moreover, he said that if Mr. Crabb had made proper visits to the site he would have detected that essential safeguards were not being followed. The prosecution also called Mr. Gasgoigne. He explained what he and Mr. Coullie had done. He said that Mr. Crabb had given him no instructions.
British Steel called a number of witnesses. Mr. Crabb said that he told the two men to fit brackets to the main building and not to remove the four main columns until the crane had taken the weight of the platform. He told them that nothing further was to be done, after the brackets had been fitted, until the arrival of the crane. He assumed that the men were skilled and competent. He assumed that his instructions would be carried out. It never occurred to him that a craftsman would cut through four legs of the platform underneath which he was working. British Steel then called Mr. Evans, their safety director, and Mr. Newbourne, their general manager. They described the care that was taken by directors and senior managers about safety. But they said that inevitably British Steel had to entrust responsibility for supervision to somebody. That person was Mr. Crabb. He was very experienced. It had to be left to him to decide whether inspection should be made. They emphasised that British Steel were entitled to assume that the subcontractors would supply only competent employees. They defended Mr. Crabb's performance of his duties. It appeared from their evidence that British Steel had 40 plants, 50,000 employees and some 2,900 employees at Mr. Crabb's level.
Mr. Wickham, a former senior principal inspector in the Health and Safety Executive, said that British Steel were entitled to rely on Mr. Crabb and that they could not have done more. Mr. Briggs, a consultant engineer, also considered that the appellants could not have done more to keep the men safe. He said that there was a limit to the degree of supervision that could be given by a line manager or section engineer.
It was common ground at the trial that the repositioning operation was inherently dangerous. The defence case was as follows: (a) Mr. Crabb carried out his duties of supervision properly. He gave sufficient instructions and supervised the two men properly. The accident took place because the two men disobeyed instructions and went about the work in an extraordinary and unforeseeable manner. (b) In any event, even if Mr. Crabb was at fault, British Steel, a company, had at the level of its "directing mind" taken reasonable care. Accordingly, British Steel was not responsible under section 3(1) for Mr. Crabb's actions.
It is now necessary to explain how the legal framework of the case was approached at the trial. Counsel for the prosecution and the defence agreed that the happening of the accident put British Steel in prima facie breach of section 3(1) of the 1974 Act. They also agreed that the words "so far as is reasonably practicable" enabled the defence to submit that if British Steel at "directing mind" level (or senior management level) had taken all reasonable care to delegate supervision of the operation to Mr. Crabb, then they were entitled to be acquitted. Counsel thought that the decision in Tesco Supermarkets Ltd v. Nattress [1972] A.C. 153 warranted this view.
The judge disagreed with this view of the law. He was critical of the approach of the prosecution. He indicated that if the prosecution maintained this approach he was minded to direct an acquittal. He asked the prosecution to consider their position overnight. After further submissions on the next day he gave a ruling that the decision in Tesco was inapplicable and that the defence of proper delegation did not arise. He explained the directions he proposed to give to the jury and that he was no longer prepared to direct an acquittal.
The summing-up
Consistent with his ruling the judge directed the jury as follows:
"Mr Goldstaub was at pains to make it clear that British Steel had appointed Mr Crabb, the section engineer, to look after this job. He was one of their most experienced, best qualified, men. It is beyond dispute he was competent and qualified to give proper instructions for this sort of job and to exercise adequate supervision to make sure the job was done safely…
I have to tell you as a matter of law that is fundamentally wrong. British Steel, as with any other employer, has a duty under this section to make sure that their operations are conducted, at least so far as is reasonably practicable and I will come to that later. The basic duty is to ensure that their undertaking, their operations, are conducted safely so as not to expose visitors to risk as a result of their operations. In law the employer, British Steel, cannot delegate this duty to some manager, section engineer or foreman, and wash their hands of it if it all goes wrong. The basic duty is upon the defendant company to make sure their business is operated in such a way that other people are not exposed to risk. If somebody, a visitor like Mr Coullie (the poor man who was killed) is put at risk because of some failure on the part of British Steel, including a failure on the part of the person that British Steel appointed to conduct this tiny part of their undertaking, then if that happens British Steel are guilty of this offence unless they can get out of it by use of that proviso that it was not reasonably practicable to ensure people's safety."
Turning to the words "so far as is reasonably practicable" in section 3(1) the judge said:
"Really you may think - though this is for you to decide and not for me - once it is proved that Mr Crabb failed to conduct this part of British Steel's undertaking so as to do it without foreseeable risk to these men, it is difficult to see how anybody could arguable that it was not reasonably practicable to avoid the risk. All it needed was that the man actually look at the job whilst he was there and to say, 'Get...
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