Both companies appealed their convictions for HSWA offences following trials which took place earlier this year. Tangerine had been convicted of a section 2(1) offence after a worker was killed whilst attempting to unblock a sweet making machine, and the company was fined £300,000. Veolia was convicted of section 2(1) and 3(1) offences and fined £225,000 after an incident where an agency worker collecting litter from the side of a road was killed following a collision involving a vehicle which had been driven by a member of the public. The appeals centred around the foreseeability of risk in the context of the defendant needing to prove they did all that was reasonably practicable. In Tangerine, it was argued that it was unforeseeable that an employee would not isolate the machine before working on it, contrary to his training and in Veolia it was allegedly unforeseeable that a member of the public would drive negligently and cause a collision.
The Court of Appeal dismissed both appeals. It was held that following Baker, foreseeability of risk at the time of the incident was relevant. However, it was only the risk that needed to be foreseeable rather than the mechanics of the actual incident itself. The duty was on employers “to think deliberately about things which are not obvious.” It was also stressed that causation of the accident itself was not an element of the offence but was an issue relevant to sentencing. The jury was therefore required to concentrate on whether employees or others were exposed to a risk and, if so, whether the defendant did everything that was reasonably practicable to avoid that risk, rather than whether that risk caused the incident which gave rise to the initial investigation.