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Risk

The Court of Appeal considers ‘risk’

Vikki Woodfine, a Senior Solicitor at DWF LLP considers the questions: ‘When is a risk not a risk?’ following a combined appeal case from Tangerine Confectionary Ltd and Veolia (UK) Ltd, a long awaited decision to look at ‘what is a risk’. On the 19 August 2011 the Court of Appeal handed down its judgment in this case, clarifying this particular issue.

The judgment relates to two separate health and safety prosecutions which raised the same key issues on the correct interpretation of the duties imposed by sections 2 and 3 of the Health and Safety at Work etc Act 1974 (HSWA). Tangerine Confectionary faced prosecution under section 2 HSWA when a worker was killed after becoming entangled in a large piece of machinery. Veolia, was prosecuted under both sections 2 and 3 HSWA following the death of an agency worker and injury to a worker under taking a litter collection at the side of a dual carriageway. The workers’ vehicle collided with a HGV travelling on the dual carriageway.

Key Issues

The Appeal Court firstly considered the relationship between the term ‘safety’ used in Section 2 of the HSWA and ‘risk’ used in section 3 HSWA. It confirmed that both sections have a common goal; the avoidance of exposure to risk.

In practice this means that the issue of risk to safety will be the same irrespective of your relationship with an employee or non employee when determining your responsibility under HSWA. Employers must ensure that safety requirements are communicated to all those involved in their supply chain including suppliers, hauliers, and agency and contract drivers and that systems are in place to check that they are satisfying these requirements.

The second issue considered was whether the prosecution should be required to prove that the offence caused the injury where an injury had occurred. The Court of Appeal was clear that causation was not a requirement to establish breach of either section 2 or section 3 HSWA. This means that the sections do not require that injury has resulted from the defendant’s action or inaction and instead both sections focus on the absence of risk of injury, not of injury itself.

The prosecution do not need to prove that an injury was caused by the breach in order to prove that an offence has been committed, however conversely they cannot necessarily rely on the injury alone to demonstrate that there must have been a breach of duty by the defendant. The prosecution will have to prove beyond reasonable doubt that there was a failure to ensure safety or a failure to prevent exposure to risk by the defendant.

This is important as over the last few years prosecutors have often argued that the fact of injury means there must have been a failure to ensure safety. The Court of Appeal in this case makes it clear that this is not necessarily so. A judge should now emphasise to a jury that causation is of limited relevance when deciding whether a breach has in fact occurred.

Nevertheless, causation still remains highly relevant with regards to sentencing. Judges are required to consider the extent of harm caused by the breach when deciding what fine to impose on a convicted defendant and there are dedicated sentencing guidelines which apply when a safety breach causes death.

The Appeal Court also reviewed the extent to which the prosecution must prove that risk derives from the defendant’s activities. The court confirmed that when determining whether a risk derives from the activities of the defendant, juries must firstly consider the exposure to risk and secondly whether it was reasonably practicable to avoid it.

In the Veolia case the issue was raised whether the risk which arose was related to the defendant’s activities or from elsewhere. The court was clear that risks must relate to the activities of the defendant however, employers will still be required to take action against certain risks which are not of their own making. A risk may arise from the activities of another employer yet action still needs to be taken to protect employees from that risk.

This means that when running a project, employers must be alert to risks that may arise from activities of another company and these risks need to be sufficiently addressed. For example, employers must ensure that drivers know what hazards they may be exposed to and what rules they should follow at customer sites. Employers must consider issues such as would a driver arriving at a site know where to go, where to park safely and how to make contact with someone at the premises and whether drivers have a safe place to wait during loading and unloading.

The final issue considered by the Appeal Court was whether foreseeability was relevant to establishing if a material risk existed in the first place. Only if a material risk to safety exists does the burden then fall to the defendant to prove on the balance of probabilities that it took all reasonably practicable steps to avoid it. It is already an established principle of health and safety law that foreseeability of the risk of danger is a relevant factor when deciding whether all reasonable practicable steps had been taken to avoid an offence.

The Appeal Court concluded that the extent to which injury is foreseeable must be considered when assessing the level of risk to which the employees and non employees have been exposed. However, the prosecution do not need to prove that the accident which in fact occurred was foreseeable. The court does not need to consider the foreseeability (or likelihood) of the event occurring in the way in which it did. All that is required is that it was foreseeable that injury could occur from the risk created by the defendant’s activities.

Managing risk in practice

The Court of Appeal has provided some clarity when reviewing the extent of the burden placed on employers when managing risks and it is clear that the burden is significant and must be sufficiently addressed by employers.

Employers will need to consider hazards which, whilst not obvious, remain foreseeable. However, the risks that need to be assessed are only material risks and not those which are ‘trivial or fanciful’ as established in R v Porter.  An employer can only be criminally liable for material risks which are foreseeable.

The court confirmed that the main risks which need to be managed are those arising out of an employers’ business’ activities however, in addition to these risks, care must be taken to ensure that risks posed by the activities of other businesses you are working with are also adequately considered and control measures implemented to manage these hazards. An example is that you must consider hazards such as poor lighting in the yards that your drivers will be visiting and put steps in place to ensure that this is remedied by the site managers of these yards.

This judgment confirms that the prosecution is not required to prove either that the injury was caused by the defendant’s breach or that the way in which the accident occurred was foreseeable. However, the prosecution cannot just rely on the injury itself to prove that a risk existed. The prosecution must prove beyond reasonable doubt that a breach of duty occurred and the fact of the injury or accident will be evidence but not proof of this.

Poor control of risks may result in action from HSE or local authorities. Transport risks, falls from height and manual handling are all priority areas for enforcing authorities, and all are common causes of accidents in road haulage. Employers should focus their efforts on practical controls and improvements where needed in order to reduce and avoid exposure to health and safety risks. Regular checks are required to ensure that any precautions or procedures implemented actually work and are used.

We would advise you to look at your own company accident records and near miss reports to assess your company’s exposure to risk. Physically observing the work that goes on can also be an invaluable method of reviewing the safety of the work being conducted.

The Court of Appeal has confirmed that it is the avoidance of exposure to risk that will determine whether an employer has breached sections 2 and 3 of the HSWA. Employers must concentrate their efforts on identifying material risks that are foreseeable and implement steps to avoid them in order to ensure that they do not fall short of their legal obligations.

Vikki Woodfine
Senior Solicitor, Regulatory
For DWF LLP

lorrylawyer@dwf.law

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