The Health and Safety at Work etc Act 1974 (HSWA) is approaching its 40th birthday. It continues to form the bedrock of UK health and safety law, yet its two most important sections have been the subject of analysis in several cases in the last three years. These are Section 2, the duty placed on employers to ensure, so far as is reasonably practicable, the health, safety and welfare of their employees, and Section 3, the duty on employers to ensure, so far as is reasonably practicable, that non-employees are not exposed to risk by their undertaking. The Court of Appeal has now provided further clarification.
The relevant sections
Section 2(1) HSWA provides:
"It shall be the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees."
Section 3(1) HSWA provides:
"It shall be the duty of every employer to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment who may be affected thereby are not thereby exposed to risks to their health and safety."
There is a subtle difference between these two sections. Section 2 speaks of ensuring safety. Section 3 speaks of ensuring an absence of risk to safety. The Court of Appeal in Tangerine Confectionery Ltd and Veolia ES (UK) Ltd v R (which were two cases heard together) has confirmed that these two concepts are the same.
Foreseeability in relation to risk
There has been much debate about first, whether a risk needs to be foreseeable, and second whether the accident which occurred needs to be foreseeable before Sections 2 and 3 impose criminal liability. In 2008, the House of Lords in the case of R v Chargot, stated that the law "does not aim to create an environment that it is entirely risk free. It concerns itself with risks that are material". By this it meant risks which were not "trivial or fanciful" and which "any reasonable person would appreciate and take steps to guard against".
In Baker v Quantum in 2011, the Supreme Court considered whether risk is absolute and unchanging over time or whether it is a relative concept, to be judged by reference to the state of knowledge at the time of the alleged breach. It was held to be a relative concept. Lord Mance stated that "if safety is a relative concept, then foreseeability must play a part in determining whether a place is or was safe". Lord Dyson similarly stated that "safety must be judged by what might reasonably be foreseen by a reasonable and prudent employer".
In Tangerine and Veolia, the Court of Appeal held that "foreseeability of risk is indeed relevant to the question of whether a risk to safety exists". The foreseeability of some danger or injury is part of the enquiry which the jury must make in determining whether the risk was material.
Crucially, the Court went on to confirm that the prosecution need not prove that the accident which actually occurred was foreseeable. Sections 2 and 3 deal with risk. The extent to which injury is foreseeable is only part of the consideration to be made about the level of risk. It is necessary for the employer to consider all risk, not just risk which is obvious.
Foreseeability in relation to taking all steps reasonably practicable
Sections 2 and 3 require the employer to ensure safety, so far as is reasonably practicable. According to Section 40 HSWA, the accused must prove, on the balance of probability, that it was not practicable or reasonably practicable to do more than was in fact done.
In Tangerine and Veolia, the Court of Appeal confirmed again that foreseeability of danger is relevant to deciding what might have been reasonably practicable. The Court went on to say that "in most cases, we think, the principle relevance of foreseeability will be to go to the defence of all reasonable practicable precautions having been taken".
In order to secure a conviction for breach of Section 2 and 3, the prosecution needs to prove that:
- an employee (Section 2) or someone affected by the accused's undertaking (Section 3) has been exposed to a risk
- that risk was material. The foreseeability of injury is part of the enquiry about whether a material risk existed.
The vast majority of cases are brought following an accident. The prosecution does not need to prove that that accident was foreseeable and the accident will usually be strong evidence that a material risk existed. The defendant then still has the opportunity to show that it took all steps reasonably practicable. If the risk of injury was unforeseeable, its chances of success improve.
The Court of Appeal also looked at whether the Crown needs to prove that the accused's breach of Section 2 or 3 caused an injury. The two sections say nothing about injury and breach can be committed where no injury has occurred. The Court clarified that "causation of the injury is not an ingredient of either offence". The Court then went on to warn parties that arguments about causation may divert attention from the real component parts of the offences and that they are likely to be a side issue which the parties would be wise to avoid.
Causation remains a highly relevant factor in sentencing. The judge must ask what harm was done by the offence. If the breach did not cause an injury, then the sentence should be lower.
In the Veolia case, the defendant's employees were clearing litter from the side of a dual carriageway. One collector was on foot, the other driving a van at walking speed just behind his colleague. The van was struck by a lorry travelling along the nearside lane, injuring the van driver and killing the man on foot.
The defendant argued that the risk and the accident arose from the ordinary use of a road. It argued that the risk derived from the driving of the two drivers and not from the defendant's activities.
The Court of Appeal rejected this test. While it agreed that in both sections, the risk must be materially related to the defendant's activities, an additional derivation test would be unhelpful and more likely to confuse.
It seems that Sections 2 and 3 have survived to fight another day. The Court of Appeal has emphasised that they both relate to risk and that they come into play when that risk is material.
Foreseeability of risk is a relevant part in deciding whether the risk is material. As before, defendants must consider the possibility of injury and they must think deliberately about things which might not be obvious. In practice, that means a thorough, careful and up-to-date risk assessment should be carried out for all activities. There is nothing new about that; the day-to-day mechanics of risk management remain the same and are as important as ever.