The recent decision in C-T Aviation Solutions Limited v Regina (Health and Safety Executive)  EWCA Crim 1620 sets out the guidance on what is a material risk and therefore when an organisation should implement control measures sufficient to control it. In this case the risk was to a pedestrian crossing an airport road.
C-T Aviation Solutions Limited is a civil engineering design company which specialise in traffic management designs for airports. It was contracted to redesign the vehicle and pedestrian arrangements at Luton Airport between 2008 and 2009.
However, following implementation of the redesign, a pedestrian died when she was run over by an HGV lorry while walking between the Terminal and the Drop Off Zone.
C-T Aviation Solutions were prosecuted for undertaking their design in a way that exposed pedestrians to a material risk to their health and safety and that they failed to avoid foreseeable risk when preparing their design.1
The prosecution’s case was that pedestrians should be segregated from traffic to the maximum extent possible, and had that been done, pedestrians would not be crossing a vehicle access road. However, if segregation was unachievable, then any crossing built had to eliminate risk to pedestrians so far as reasonably practicable. In this respect, the HSE made a number of criticisms of the crossing where Mrs Whiting was killed:
- The absence of “give way” lines, which should have been present and at least the 1.1 metres specified minimum distance in the Zebra, Pelican and Puffin Pedestrian Crossings Regulations and General Directions 1997 (the “Pedestrian Crossing Regulations”);
- The incident crossing was 2 metres wide which is narrower than the originally designed 2.5 metres and less than the minimum width of 2.4 metres specified in the Pedestrian Crossing Regulations;
- There was a gap in the guard railings which permitted pedestrians to enter the road before the designated crossing;
- The access road carried two-way traffic, but the absence of road markings created the false impression that pedestrians were crossing a one-way road; and
- The exit carriageway on the road had a vehicle barrier close to the crossing which created a ‘blind spot’ for drivers of large vehicles to pedestrians already on the crossing.
C-T Aviation Solutions were found guilty on both charges, fined £70,000 and ordered to pay £30,000 towards costs.
An incident of everyday life?
C-T Aviation Solutions appealed the decision on the grounds that the Judge should not have denied their submission that it had no case to answer as there was no or insufficient evidence of material risk.
C-T Aviation Solutions argued that a pedestrian crossing the road and colliding with a vehicle was an “incidence of everyday life that is tolerated by society”. Therefore in absence of evidence that the ordinary risk was increased for a particular reason, a person being hit by a vehicle while crossing a road could not be a material risk under the legislation.
When reviewing the appeal the Court referred to the case of Porter 2 where there was a successful appeal against the conviction of a school headmaster following injury to a boy who jumped from some playground steps. In that case the Court determined that the risk of a child jumping down steps and hurting themselves in the grounds of a school was unremarkable. It was a trivial or everyday risk.
The issue for C-T Aviation Solutions was whether the crossing designed with the particular features it had, or did not have, had exposed pedestrians to a material risk to their health and safety.
In dismissing the appeal the Court considered that while pedestrians crossing a public road and colliding with a vehicle may be an “incidence of everyday life that is tolerated by society”; that unlike the facts in Porter this was not a trivial or unremarkable incident. The crossing was situated on private land and C-T Aviation Solutions had been specifically contracted to redesign the parking and pedestrian arrangements.
Specifically, this crossing was quite different from those on a public road in that pedestrians at an airport were either the airports’ guests or employees and present as part of its business, as was vehicle traffic, for which the roads and parking were provided. Therefore pedestrians and vehicles were brought together on the land for the airports’ business; the material risk created being “pedestrian and vehicle conflict” which could cause serious injury or death.
The combination of an overly wide gap in the crossing guard rail (coupled with the pedestrian direction of approach), together with an absence of “give way” lines, had led to a situation where pedestrians trailing suitcases could enter the crossing and not be seen by an approaching vehicle. The Court described this as ample evidence of material risk.
What does this mean?
What is a material risk will always be very fact specific. However, in cases where an organisation is specifically contracted to design something then it is implied that they must consider the risks in the design and take all steps to reduce the risk to a level that is as low as reasonable practicable. An unsafe situation created by a poor design which increases the risk or fails to include measures which are reasonably practicable to control that risk may result in a prosecution. It is unlikely to be a defence to say that you have no duty to control risks you were contracted to mitigate simply because it is of a type which may be experienced everyday by the public at large. Ultimately, if you are contracted to design or remodel any project you should conduct a full risk assessment to identify all foreseeable risks and either eliminate, mitigate reduce or control them. When operating on private land, awareness and adherence to any relevant regulations is essential to demonstrating that all steps to reduce the risk to a level that is as low as reasonable practicable were satisfied.