The Court of Appeal recently dismissed appeals brought by Balfour Beatty and Enterprise following the death of a member of the public driving through a temporary traffic management system on the A50. The case reaffirmed some well-known principles but is a timely reminder of the factors considered in health and safety prosecutions. This is particularly apposite given the recent sentencing guidelines consultation (this proposes a tariff system for fines based on a company's turnover meaning a significant increase in the level of fines).

The Defendants were convicted, but subsequently appealed their fines of £325,000 each.

The maintenance in question was a double lane closure on the A50. The Defendants sought to rely on the police collision report which had concluded that fatigue was a "very likely" cause of the accident. They also highlighted that 349 vehicles had used the road diversion unscathed and that this indicated that the risk caused by it was not "Material". They argued that the law recognises that driving is not free from risk and thus a traffic management system could be seen as an everyday risk (as opposed to a material risk).

The Court of Appeal did not accept that the risk created by the management system could be distinguished from a material risk. The Court reaffirmed the "Tangerine" principle that the prosecution only had to show that the risk was not trivial or fanciful.  It was not necessary for them to establish that the risk was appreciable or foreseeable. Foreseeability of the risk will only be relevant to the statutory defence of whether all reasonably practicable precautions were taken.  In a nutshell, one accident could be sufficient evidence to find a system fails to adequately control a material risk regardless of the conclusions of other factors, in this case those concluded in the police collision report.

The Court of Appeal concluded that both companies should be dealt with in the same way. Enterprise had failed to make a suitable and sufficient risk assessment and Balfour Betty had failed to provide adequate risk assessment drawings that focussed on the specific risks relevant to these works. In addition Balfour Beatty had a previous conviction which related the operation of another traffic management system and the court considered that they had failed to implement procedures for managing subcontractors during the installation of a traffic management system.

The Court noted that the fine was not out of line with the sentencing decisions from the Court of Appeal but they recognised the absence of a tariff for sentencing (which based on the new proposals could have led to a significantly increased fine).