R v Chargot Ltd (t/a Contract Services) and Others

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLORD NEUBERGER OF ABBOTSBURY,LORD HOFFMANN,LORD HOPE OF CRAIGHEAD,LORD SCOTT OF FOSCOTE,LORD BROWN OF EATON-UNDER-HEYWOOD
Judgment Date10 December 2008
Neutral Citation[2008] UKHL 73
Date10 December 2008

[2008] UKHL 73

HOUSE OF LORDS

Appellate Committee

Lord Hoffmann

Lord Hope of Craighead

Lord Scott of Foscote

Lord Brown of Eaton-under Heywood

Lord Neuberger of Abbotsbury

R
and
Chargot Limited (t/a Contract Services)

and others

(Appellants) (On appeal from the Court of Appeal Criminal Division)

Appellants:

Richard Lissack QC

Ben Compton

Maya Lester

Kate Edwards

(Instructed by Keoghs LLP)

Respondent:

Tim Horlock QC

Richard Matthews

Jamas Hodivala

(Instructed by Holdens)

LORD HOFFMANN

My Lords,

1

I have had the advantage of reading in draft the speech of my noble and learned friend Lord Hope of Craighead. For the reasons he gives, with which I agree, I too would dismiss these appeals.

LORD HOPE OF CRAIGHEAD

My Lords,

2

On 10 January 2003 Shaun Riley was working in the course of his employment with the first appellant, Chargot Ltd, at Heskin Hall Farm, near Chorley in Lancashire. Extensive works were being carried out on the farm, which was owned by the Ruttle Group of companies. The second appellant, Ruttle Contracting Ltd, a member of the group, was the principal contractor. The third appellant, George Henry Ruttle, was a director of the first appellant. He was also the second appellant's managing director. The works included the construction of a car park. This required the excavation from the site of a quantity of topsoil. A dumper truck was then used to move the spoil over a distance of about 500 yards to a depression in a field, beside which a ramp had been created to provide the dumper truck with a means of access.

3

During the previous day and for part of the morning on the day in question the dumper truck was driven by another employee. But he left the farm after receiving a telephone call telling him that his mother had been injured in a road accident. Shaun Riley was asked by the foreman to take over the driving of it. He made two trips carrying spoil from the car park to the depression without incident. While he was making a further trip that afternoon he met with an accident. The dumper truck tipped over on its side and he was buried by the load of spoil that he was transporting. It was some time before he could be pulled out, and attempts to revive him were unsuccessful. He died the following day in hospital.

4

The investigation which followed the accident revealed that there were various shortcomings in the health and safety organisation at the farm. But there were no witnesses to the accident, and the precise cause of it was never established. The dumper truck itself had no defects, and it was fitted with a seat belt. Unfortunately Mr Riley was not wearing the seat belt at the time of his accident.

5

Criminal proceedings were brought against the first appellant under section 33(1)(a) of the Health and Safety at Work etc Act 1974 alleging a breach of section 2(1) of the Act. The case against it was that it had failed to ensure, so far as was reasonably practicable, the health and safety at work of its employees. As the operations were under its control the second appellant was also prosecuted. In its case the allegation was that there had been a breach of section 3(1). This was because it had failed to conduct the undertaking in such a way as to ensure, so far as was reasonably practicable, that persons not in its employment who might be affected thereby were not exposed to risks to their health and safety. The third appellant was prosecuted under section 37 of the 1974 Act in respect that, through his connivance, consent or neglect, he had caused the second appellant to commit a breach of section 3(1) in failing to ensure, so far as was reasonably practicable, that persons not in its employment were not exposed to risks to their health and safety. In each case the particulars of the offence identified the date and place where these risks were said to have arisen, and they said that this was in relation to the driving or use of dumper trucks. In their defence the appellants maintained that they had done everything that was reasonably practicable to ensure the health and safety of persons working on the site, including Mr Riley.

6

On 10 November 2006 the appellants were found guilty of the charges that had been brought against them. 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 was fined £75,000 and ordered to pay £103,500 costs. They were granted leave to appeal against both conviction and sentence. On 13 December 2007 the Court of Appeal, Criminal Division (Latham LJ, Gibbs and Jones JJ) dismissed the appeals [2007] EWCA Crim 3032; [2008] ICR 517.

7

The principal issues in the appeal were directed to the way in which the case for the prosecution had been presented to the jury. In simple terms, the prosecution based its case against the first and second appellants on the proposition that it was sufficient for it to identify and prove a risk of injury arising from a state of affairs at work. The contention for the appellants was that it was for the prosecution to identify and prove particular acts or omissions consisting of a failure or failures to comply with the duties laid down in sections 2 and 3 of the Act respectively. The Court of Appeal held that the policy of the 1974 Act was to impose a positive burden on employers, rather than simply disciplining them for the breach of specific obligations. That being so, the prosecution was entitled simply to point to a state of affairs as amounting to a breach of the statutory duty: paras 22 and 23. In this case the relevant risk was the risk of injury caused by driving the dumper truck. That this was a real risk, as opposed to a purely hypothetical one, was established by the fact that there was an accident. That was sufficient to justify the requirement that the first and second appellants should have the burden of proving that they had done all that was reasonably practicable to protect against that risk: para 26.

8

The case against the third appellant was that he was directly involved in the works, as he gave specific instructions as to how they were to be performed. He had signed a statement in December 2004 in which he said that his involvement in the project at Heskin Hall Farm was considerable, that he ran the job and that he made most of the decisions. It was submitted on his behalf that the judge gave no guidance to the jury as to how the words "neglect, connivance or consent" in the charge against him could be relevant to the facts of the case. But there was no submission that he had no case to answer, and the court said that the only sensible inference was that, if it was established that the company had committed an offence, he willingly allowed it to do so or knowingly turned a blind eye to it. The jury could not have been in any doubt about what those words meant in the context of this case: para 15

9

The Court of Appeal certified that the following points of law of general public importance were involved in the decision:

"i. In proceedings against an employer under section 2 of the Health & Safety at Work etc Act 1974 is it sufficient that the prosecution proves merely a risk of injury arising from a state of affairs at work, or, need it go on to identify and prove specific breach or breaches of duty;

ii. In proceedings against an undertaking under section 3 of the Health & Safety at Work etc Act 1974 is it sufficient that the prosecution proves merely a risk of injury arising from a state of affairs at work, or, need it go on to identify and prove specific breach or breaches of duty;

iii. In proceedings against a person under section 37 of the Health & Safety at Work etc Act 1974 is it sufficient as regards the predicate offence under section 3 of the Act that the prosecution proves merely a risk of injury arising from a state of affairs at work, or, need it go on to identify and prove specific breach or breaches of duty."

The statutory provisions

10

The 1974 Act was designed to give effect to the recommendations of the Report of the Robens Committee on Safety and Health at Work 1970-72 (July 1972) (Cmnd 5034). Among its main recommendations was the revision and re-organisation of the statutory provisions dealing with safety and health at work within the framework of a single comprehensive enactment. It recommended that there should be a new statute which should be primarily enabling in character. It should be limited to matters that would not require frequent amendment but would provide a foundation for a practical and efficient code of occupational health and safety: para 127. The law as it then stood lacked any central statement of general principle governing the wide variety of detailed provisions on specific matters, which were spread over a number of main statutes and a host of subordinate statutory instruments: para 128. So it recommended that the general principles of safety responsibility and safe working should be embodied in a statutory declaration which would set all of the detailed statutory and other provisions in a clear perspective, and that the Act should begin by enunciating the basic and over-riding responsibilities of employers and employees: para 129.

11

Part I of the 1974 Act, in which all the provisions that are relevant to this case appear, is designed broadly to follow these recommendations. It begins with a preliminary section which sets out the general purposes of that Part. Section 1, so far as relevant to this case, provides:

"(1) The provisions of this Part shall have effect with a view to -

  • (a) securing the health, safety and welfare of persons at work;

  • (b) protecting persons other than persons at work against risks to health or safety arising out of or in connection with the activities of persons...

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