R v Nelson Group Services (Maintenance) Ltd

JurisdictionEngland & Wales
JudgeLORD JUSTICE ROCH,MR JUSTICE THOMAS
Judgment Date30 July 1998
Judgment citation (vLex)[1998] EWCA Crim J0730-4
Docket NumberNo. 9704750 W4 9706764 W4 9707131 W4
CourtCourt of Appeal (Criminal Division)
Date30 July 1998

[1998] EWCA Crim J0730-4

IN THE COURT OF APPEAL CRIMINAL DIVISION

Royal Courts of Justice

The Strand

London WC2A 2LL

Before:

Lord Justice Roch

Mr Justice Bennett

and

Mr Justice Thomas

No. 9704750 W4 9706764 W4 9707131 W4

Regina
and
Nelson Group Services

MR RM OWEN QC & MR C PARRY (30.7.98) appeared on behalf of the Appellant

MR N WOOD appeared on behalf of the Crown

1

Thursday 30th July 1998

LORD JUSTICE ROCH
2

The appellants, Nelson Group Services (Maintenance) Ltd are a company involved in the installation, servicing and maintenance of gas appliances. Their clients include British Gas who employ them to install gas appliances which British Gas has sold to others, Local Authorities and Housing Associations together with other major organisations, including commercial undertakings that use gas. In addition the appellants have maintenance contracts with a few private individuals.

3

Prior to the convictions against which the appellants appeal they had no conviction. Between June 1997 and January 1998 the appellant company faced six indictments for offences under the Health and Safety at Work Act etc 1974. The appellant company was acquitted on three of those indictments. It was convicted of one or more offences on the other three indictments and we shall set out the particulars of those offences and the facts giving rise to them a little later in this judgment.

4

The appellant company is a national company employing between 800 and 900 fitters, in addition to supervisory staff and office and management personnel. The appellant company has its own training centre for training its employees.

5

The main issue which arises in two of these three appeals is the extent of the duty placed upon an employer by s. 3(1) of the 1974 Act. The directions given to the jury on the nature and extent of the duty under this section were not the same in each case. In the first and third of the appeals the appellants accept for the purpose of the appeals that one of their fitters, in the first case installing a gas cooker at a private house, and in the third case in removing a gas fire which had become dangerous from the living room of another private house, did not perform their work as fitters properly. In the first case it is accepted that a proper test for gas leaks in the system following installation was not carried out, and in the third case that the end of the pipe supplying gas to the fire where that pipe was broken to allow removal of the gas fire was not properly capped. It is accepted by the respondent that in those cases the fitters concerned were properly trained, properly certificated, had as necessary undergone refresher courses, received proper instructions and been supplied with proper equipment which would have allowed them to discharge their work as fitters satisfactorily and safely. On the other hand, it is now common ground that the gas fittings, which include gas appliances, (see Regulation 2 of the Gas Safety (Installation and Use) Regulations 1994) were left in such a condition that the occupiers of the private houses were exposed to risk to their health or safety.

6

The question which arises is whether that fact alone renders the appellant in breach of their duty under s. 3(1) and guilty of a criminal offence under s. 33(1)(a) or whether either of two submissions made on behalf of the appellants offers a defence. The first is that the negligent act by the fitter is not "the employer conducting his undertaking". The second is that the employer is not prevented from showing that he has so far as is reasonably practicable conducted his undertaking in such a way as to ensure that persons not in his employment who may be affected thereby are not thereby exposed to risk to their health or safety by the fitter's negligent act or omission.

7

This issue is not the sole ground of appeal raised in these three appeals. Consequently it is necessary to set out the three cases in some detail so that the other grounds and our decisions on them may be understood.

8

In the first case, the appellants faced an indictment containing four counts. The first count charged the appellants with failing to discharge the duty imposed on them by s. 3(1) of the 1974 Act contrary to s. 33(1)(a) of that Act. Count 2 charged the appellants with contravening Regulation 26(5) of Gas Safety (Installation and Use) Regulations 1994, hereafter referred to as the Regulations, contrary to s. 33(1)(c) of the 1974 Act. Both those counts were based on an allegation that a gas cooker installed at 23, Highfield Road, Petersfield by the appellants had been left connected to the gas supply by fittings which were not gas tight. Count 3 charged the appellants with contravening Regulation 3(5) of the same Regulations contrary to s. 33(1)(c) of the 1974 Act. The particulars of this charge were that the appellants failed to ensure that one of their fitters, Frederick Thorpe, had complied with Regulation 26(5) of the Regulations, he being a person on whom a duty was imposed by that Regulation. Count 4 in the indictment charged Frederick Thorpe with contravening Regulation 26(5) of the Regulations contrary to s. 33(1)(c) of the 1974 Act. The particulars were that Mr Thorpe had installed a gas cooker at 23, Highfield Road, Petersfield and left it connected to the gas supply when it could not be used safely.

9

The case against the appellants and Mr Thorpe was heard by a jury at the Portsmouth Crown Court in a trial presided over by HHJ Shawcross between the 17th and 25th June 1997. Count 4 against Mr Thorpe was dismissed because Mr Thorpe was one of two fitters who had installed the gas cooker at 23, Highfields Road, the other being a Mr Quested, and the prosecution were not able to establish which of those two fitters had been in breach of Regulation 26(5). As a consequence of the jury being directed to acquit Mr Thorpe on Count 4, the jury were directed, in our view correctly, to acquit the appellants on Count 3.

10

The appellants were found guilty on Counts 1 and 2 and were fined £250 in respect of each count.

11

The facts were these: the gas cooker had been purchased by the occupiers of 23, Highfield Road, Mr & Mrs Porter from British Gas who employed the appellants to install it and had been installed by a fitter employed by the appellants on the 2nd October 1995. There was no defect in the gas cooker itself, nor in the connection made by the appellant's fitter between the bayonet fitting and the gas cooker. Part of the pipe work behind the gas cooker included a back plate elbow. The joint between the pipe leading to the back plate elbow and the back plate elbow was found to be leaking by a fitter employed by Transco later on the 2nd October 1995 when he was called to 23, Highfield Road by Mr & Mrs Porter. Mr and Mrs Porter had smelled gas and called the emergency number. The jury by their verdicts must have been satisfied that that joint had been disturbed by the work of installing the gas cooker and that one or other of the appellant's fitters should have discovered the leakage from that joint by pressure testing the system after their work of installation was complete. There was an issue as to whether the leak found by the Transco fitter exposed Mr & Mrs Porter to risks to their health or safety. Again on the jury's verdicts it must be assumed that the jury were sure that such a risk existed on the 2nd October 1995.

12

The first point taken by the appellants relates to Count 2 in the indictment and has been conceded by the respondents, namely that Regulation 26(5) of the Regulations does not place a duty on the employers. Because both sides to this appeal wish to have guidance on the scope of the duties under the Regulations and under the Act, we shall state shortly why we consider that the point taken by the appellants under Regulation 26(5) is sound and that the concession of the point by the respondents is properly made.

13

Regulation 26(5) provides that:

"No person carrying out the installation of a gas appliance shall leave it connected to the gas supply unless the appliance can be used safely."

14

The Regulations clearly distinguish between "any person carrying out any work" in relation to a gas fitting and the "employer of any person" see in particular Regulations 3 and 4. Moreover, the Regulations distinguish between the duties imposed upon the person who carries out the work in relation to gas fitting, and the duties imposed upon the employer of such a person. The Regulations impose a series of obligations upon the person who carries out the work in relation to a gas fitting. They specify the result to be achieved, and impose strict liability subject to Regulation 37. Regulation 37 provides:

"No person shall be guilty of an offence by reason of contravention of Regulation 3( 2) or (5), 5(1), 7(3), 15, 16( 2) or (3), 17, 30, 33( 1), or 35 in any case in which he can show that he took all reasonable steps to prevent that contravention."

15

Regulation 3(2) and (5) create duties on the part of the "employer of any person carrying out work" to ensure that a certain result is achieved. The employer is given a defence under Regulation 37 in respect of both of those provisions. Regulation 4 also places a duty on an employer who requires any work in relation to a gas fitting to be carried out at any place of work under his control, to take reasonable steps to ensure that the person undertaking that work is suitably qualified. Again the distinction is drawn between the employer on the one hand, and the employee who carries out the work on the other. The person who carries out the work has, save in those cases provided in Regulation 37 an absolute duty to achieve...

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