Following the decision of the House of Lords in R v Chargot Limited and Others, it has never been more important for companies and company officers to take health and safety seriously.
An employee of Chargot died when the dumper truck he was driving at the farm he worked at fell onto its side and buried him in a load of spoil. The investigation which followed revealed that there were various shortcomings in the health and safety organisation at the farm. There were, however, no witnesses to the accident and the precise cause was never established. The dumper truck itself had no defects and it was fitted with a seat belt which was not worn at the time of the accident.
Chargot was convicted under section 2(1) of the Health and Safety at Work etc Act 1974. This part of the Act imposes a general duty upon all employers to ensure, so far as is reasonably practicable, the health, safety and welfare of all their employees. It was fined £75,000 and ordered to pay costs of £37,500.
The principal contractor at the farm was convicted under section 3(1) of the Act. This requires 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, are not exposed to risks to their health and safety. It was fined £100,000 and ordered to pay costs of £75,000.
The managing director of the principal contractor (also a director of Chargot) was convicted under section 37 of the Act on the basis that through his connivance, consent or neglect, he had caused the principal contractor to commit a breach of section 3. His total penalty was £178,500, comprising a fine of £75,000 and prosecution costs of £103,500.
All three defendants appealed to the House of Lords on the basis that the prosecution had not set out exactly how they had failed in their duties under the Act. They said it had simply stated that the offences arose due to risks arising from driving or the use of dumper trucks.
The House of Lords held that what the prosecution must prove is that the result that sections 2(1) and 3(1) describe was not achieved. In cases such as Chargot this will be evidenced by the fact of the accident itself. The prosecution did not then have to identify and prove specific breaches of duty.
The burden of proof would pass to the defence to prove that reasonably practicable measures were taken. The House of Lords did, however, acknowledge that in cases where prosecution does not result from an accident it will be necessary for the prosecution to identify and prove the respects in which there has been a breach of duty.
A slightly different view was taken in relation to section 3 offences. Even where an injury has occurred it may not be enough for the prosecutor simply to assert that the injury demonstrates there was a risk. Where a prosecution is brought under section 3(1), the court decided 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 its undertaking.
Another very important issue in Chargot related to what the prosecution needs to identify and prove where a director, manager, secretary or other company officer is prosecuted under section 37 of the Act once it has been established that the company has committed an offence under the Act.
There is no fixed rule as to what the prosecution must identify and prove in order to establish that an officer's state of mind was such as to amount to "consent, connivance or neglect". In such cases we have dealt with though, a prosecution will normally only be pursued if there is clear knowledge of a failing on the part of the company or inactivity in the face of warnings of a problem.
The House of Lords made clear in Chargot that "consent" (to the company's failing) 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.
It would be a relatively short step for an inference to be drawn that there was connivance or neglect on the part of the company officer if the circumstances under which the risk arose were under the direction or control of the officer. The more remote his area of responsibility from those circumstances, the harder it will be to draw that inference.
In Chargot, the company officer was directly involved in the works, as he gave specific instructions as to how they were to be performed. He had signed a statement in which he said that his involvement in the project was considerable, that he ran the job and that he made most of the decisions.
The good news is that the decision in Chargot does not alter the existing duties on employers to ensure the health and safety of employees and persons not in their employment.
The bad news is that the fact of an accident will now be prima facie evidence of the fact that employees were exposed to a risk, in breach of section 2. The burden of proof then passes to the defence to prove that reasonably practicable measures were taken, unusually then requiring a defendant to prove innocence rather than for the prosecution to prove guilt.
The practical reality is that although the House of Lords stated that the absence of an accident may make it necessary for the prosecution to identify and prove the respects in which there was a breach of duty, it is much more common for a health and safety prosecution to follow an injury.
Use the decision in Chargot as an opportunity to keep health and safety at the top of your "to do" list and think again about how risks are managed. Consider how successfully your safety management system has been operating to date and whether any improvements in procedures for health and safety can be made. The best form of defence is to prevent accidents from occurring, fatal or otherwise.
Company officers must also take ultimate responsibility for checking that the health and safety function across the organisation is being adequately carried out.
- Ensure that the board regularly reviews health and safety issues by having it as an agenda item at every meeting.
- Where appropriate, record any discussions on health and safety matters in the minutes of the meeting.
- Ensure action points agreed upon are given a timeline for compliance and it is clearly communicated who is to be responsible for any action agreed.
- Above all, ensure the action points are completed.
The paperwork trail may be key to whether or not a defence to prosecution can be successfully maintained.