R v Chargot Ltd (t/a Contract Services) and Others
Jurisdiction | England & Wales |
Judge | Lord Justice Latham,Mr Justice Gibbs,Mr Justice Lloyd Jones |
Judgment Date | 13 December 2007 |
Neutral Citation | [2007] EWCA Crim 3032 |
Court | Court of Appeal (Criminal Division) |
Date | 13 December 2007 |
Docket Number | Case No: 2000/6425C1/24C1/23C1 |
[2007] EWCA Crim 3032
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
Lord Justice Latham
Mr Justice Gibbs and
Mr Justice Lloyd Jones
Case No: 2000/6425C1/24C1/23C1
Richard Lissack QC and Ben Compton (instructed by Keoghs, Solicitors, Bolton) for the Appellants
Timothy Horlock, QC and Gary Woodhall (instructed by Holdens, Solicitors, Lancaster) for the Respondents
Hearing dates: 7 th November 2007
On the 10 th November 2006 in the Crown Court at Preston, before the Recorder of Preston, the first appellant, Chargot Ltd, was convicted of contravening section 2(1) of the Health and Safety at Work Act 1974 (the Act); the second appellant Ruttle Contracting Ltd, was convicted of contravening section 3(1) of the Act; and the third appellant, George Henry Ruttle was also convicted of contravening section 3(1) of the Act. The first appellant was fined £75,000 and ordered to pay £37,500 costs. The second appellant was fined £100,000, and ordered to pay £75,000 costs. The third appellant, George Henry Ruttle, was fined £75,000 and ordered to pay £103,500 costs. They appeal against conviction by limited leave of the single judge, and renew their applications for leave to appeal against sentence.
At the material time, the first and second appellants were members of the Ruttle Group of companies, of which the third appellant was the managing director. The Ruttle Group owned Heskin Hall Farm near Chorley in Lancashire. Between October 1998 and January 2003 extensive project work was carried out at the farm which included building a car park. Notice of this project had not been given in accordance with the provisions of the Construction Regulations 1994 prior to the work commencing.
On the 10 th January 2003, Shaun Riley was driving a dumper truck at the farm in relation to the construction of the car park. It does not appear that he was the usual dumper truck driver. He had been asked to drive it that day by Barry Draper, whose was the foreman on the site. The task at the relevant time was to take a load of spoil approximately 500 yards to a hole into which it was to be deposited. As Shaun Riley was driving down a ramp, the dumper truck fell onto its side; and for reasons which were never fully resolved, he was buried under the spoil and died.
Put shortly, the prosecution case against the three appellants was that as far as the first appellant was concerned, it was the employer of Shaun Riley and the other workmen on the site, and had failed to ensure their safety. As far as the second appellant was concerned, it was the company carrying on the undertaking, namely the project at Heskin Hall Farm and had failed to ensure that the project was not carried on in such a way as to expose Shaun Riley and others who were not in the company's employment, to risks to their safety. As far as the third appellant was concerned, he was a director of the second appellants and the offence that it committed was committed with his consent or connivance or was attributable to neglect on his part.
The appellants' defence was that, whilst accepting that, in particular in relation to the use of the dumper truck, there had been no risk assessments, no training and that no safety helmets had been provided, they had nonetheless done everything which was reasonably practicable to ensure the safety of Shaun Riley and the other workers. There were no appreciable or significant dangers in the project, particularly in relation to the driving of dumper trucks. The dumper truck was itself a perfectly simple piece of equipment which Shaun Riley appeared to be perfectly competent to drive. The first appellant said that in any event its only function was to hire men to carry out the work in which they would be subject to the control of the principal contractor. As far as the second appellant was concerned, it denied that it was the principal contractor or carrying out the undertaking. It said that the contractor carrying out the undertaking was Ruttle Plant Hire Ltd, a company which was no longer trading. The third appellant denied that he had assumed any responsibility for what was taking place on site. He therefore did not connive at or consent to anything which was capable of amounting to a breach of his companies' obligations under the Act, nor was he guilty of any neglect to which any such breach could be attributed.
The relevant provisions of the Act are as follows:
“Section 2: General duties of employers to their employees.
(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.
(2) Without prejudice to the generality of an employer's duty under the preceding sub-section, the matters to which that duty extends include in particular –
a. the provision and maintenance of plant and systems of work that are so far as is reasonably practicable and safe without risk to health;
b. arrangements for ensuring, so far as is reasonably practicable, safety and absence of risks to health in connection with the use, handling, storage and transport of articles and substances;
c. the provision of such information, instruction, training and supervision as is necessary to ensure, so far as is reasonably practicable, the health and safety at work of his employees;
d. So far as is reasonably practicable as regards any place of work under the employer's control, the maintenance of it in a condition that is safe and without risks to health and the provision and maintenance of means of access to and egress from it that are safe and without such risks;
e. the provision and maintenance of a working environment for his employees that is, so far as is reasonable practicable, safe without risks to health and safety, and adequate as regards facilities and arrangements for their welfare at work.
…….
Section 3: General duties of employers and self employed to persons other than their employees.
(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 risk to their health or safety,
…..
Section 33: Offences:
(1) It is an offence for a person –
(a) to fail to discharge a duty to which he is subject by virtue of sections 2 to 7;
……
Section 37: Offences by bodies corporate.
Where an offence under any of the relevant statutory provisions committed by a body corporate is proved to have been committed with the consent or connivance of, or to have been attributable to any neglect on the part of, any director, manager, secretary or other similar officer of the body corporate, or a person who was purporting to act in any such capacity, he as well as the body corporate shall be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
…..
Section 40: Onus of proving limits of what is practicable etc.
In any proceedings for an offence under any of the relevant statutory provisions consisting of a failure to comply with a duty or requirement to do something so far as is practicable or so far as is reasonably practicable, or to use the best practicable means to do something, it shall be for the accused to prove (as the case may be) that it was not practicable or not reasonably practicable to do more than was in fact done to satisfy the duty or requirement or that there was no better practicable means than was in fact used to satisfy the duty or requirement.”
These appeals raise an important question as to the effect of the burden placed on the defence under section 40 on what the prosecution has to prove in order to establish the prima facie breach of duty triggering the need for the defence to establish that it was not practicable or not reasonably practicable to do more than was in fact done to satisfy the duty. That will require consideration in this case of the way in which the prosecution presented its case and the way in which the judge summed it up to the jury.
Before turning to this issue, we should dispose of two discrete issues which ultimately turn on the particular facts of this case. Also, we should mention for the sake of completeness that the appellants made an application at the commencement of the trial for it to be stayed as an abuse of process. The judge's ruling dismissing this application was the subject of a ground of appeal for which leave was refused. It was indicated at one time that the appellants wished to renew the application for leave in respect of this ground. But, ultimately, the matter was not pressed before us.
The first discrete issue arises out of the judge's rejection of a submission at the end of the prosecution case, that the second appellant had no case to answer. The judge rejected this submission on the basis that there was material before the jury from documents which were prepared by the Ruttle Group itself stating that the second appellant was the principal contractor. The submission of Mr Lissack, QC is that, firstly, the judge failed to recognise that the fact that the second appellant was the principal contractor, did not, of itself, answer the question as to whether or not it was carrying on the undertaking which resulted in the alleged breach of duty for the purposes of section 3 of the Act. And it is submitted that, in any event, the evidence before the jury was equivocal. Although there were documents in which the...
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