R v (1) Chargot Ltd (t/a Contract Services) & Ors  UKHL 73
In proceedings brought under the Health and Safety at Work etc Act 1974 s.2(1) and s.3(1), the prosecution only had to prove that the result described in those sections had not been achieved or prevented. Once the prosecution has proved that a prima facie case of breach is established. The onus then passes to the defendant to make good the 'reasonable practicability' defence set out in s.40. The court went on to consider what would need to be proved to prosecute an officer under s.37 of the Act. To read the judgment, click here.
R v Chargot: In a prosecution under s.37 of the Act, there was no fixed rule as to what had to be proved to establish that an officer’s state of mind had amounted to consent, connivance or neglect. Where the officer’s place of activity was remote from the work place, or what was done there was not under his immediate direction or control, quite detailed evidence might be required, of which fair notice would have to be given. Where the officer was in day-to-day contact with the place of activity, little more than the evidence required to establish a breach under s.2 or s.13 might be needed. The prosecution must prove that the officer knew the material facts that constituted the offence by the body corporate and agreed to its conduct on the basis of those facts, but consent could be established by inference as well as by proof of an express agreement. The state of mind contemplated by the words ‘connivance’ and ‘neglect’ could also be established by inference.
Shaun Riley, in the course of his employment, was asked by his foreman to take over the driving of a dumper truck when the usual driver had to leave to attend to a family emergency. He made two trips carrying spoil from the car park being constructed to the depression that was being filled without incident but on the third trip the dumper truck tipped on its side and he was buried by the load of spoil he was transporting. He died as a result. There were no witnesses to the accident and the precise cause of it was never established.
The prosecution based its case on the proposition that it was sufficient to identify and prove a risk of injury arising from a state of affairs at work. Since Mr Riley had been injured at work, his injury clearly arose from a state of affairs at work and the prosecution did not need to prove the acts and omissions by which it was alleged there had been a breach of duty: ‘In cases such as the present, where a person sustains injury at work, the facts will speak for themselves. Prima facie, his employer, or the person by whose undertaking he was liable to be affected, has failed to ensure his health and safety. Otherwise there would have been no accident. But a case where the alleged risk has not had this result cannot be dealt with so easily. It will be necessary to identify and prove the respects in which there was a breach of duty. This is likely to require more by way of evidence than simply an assertion that that state of affairs existed. The particular risk to which the employees, or the persons referred to in section 3(1) as the case may be, were exposed must be identified. This will require an analysis of the facts in each case. Even where an injury has occurred it may not be enough for the prosecutor simply to assert that the injury demonstrates that there was a risk. Where a prosecution is brought under section 3(1), it may be necessary to identify and prove the respects in which the injured person was liable to be affected by the way the defendant conducted his undertaking.’