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R v Chargot Ltd, House of Lords, 10 December 2008

2 February 2009
The issues

Criminal liability for health and safety breach – minimum to be proved by the prosecution.

The facts

Fatal accident on construction site when dumper truck rolled over as the deceased drove it, laden with spoil, down a ramp which had been made for the purpose. The precise cause of the accident was never established. Nor was the way in which the deceased finished up underneath the spoil. There had been no risk assessments or training, and the deceased was not wearing a helmet or seat belt. The employing contractors, the main contractors and a director of the main contractor were each fined “75,000.00 to £100,000.00 for breach of the general health and safety duties imposed by the Health and Safety at Work Act 1974:-

Section 2(1) – ‘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) – ‘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 or safety’.

The Defendants appealed unsuccessfully. As with civil claims, once the prosecution had shown that there was, on the face of it, a breach of the above duties, it was for the Defendants to prove they had done all that was reasonably practicable. What did the prosecution have to do before the burden shifted to the Defendant?

The decision

Giving the lead Judgment, Lord Hope said it was not enough for the prosecution to make the bald assertion that there had been a breach. Here, the prosecution had “stated that the risks to the employees’ health and safety at work were in relation to the driving or use of dumper trucks. It was not necessary for the prosecution to go further and specify the respects in which risks were associated with that activity or to identify the cause of the accident….It was common ground that…the case arose out of Mr Riley’s fatal accident when he was driving the dumper truck….[this] demonstrated….that the first appellant failed to ensure Mr Riley’s health and safety and that the second appellant failed to ensure that he was not exposed to risks to his health and safety. It was then for these defendants to prove….that they had done all that was reasonably practicable to protect him against that risk”.

As to the criminal liability of an individual company director, a company officer will be liable if the company’s offence was committed “with his consent or connivance or its commission was attributable to any neglect on his part. There are things relating to his state of mind that must be proved against him…where the officer was in day-to-day contact with what was done [on site]…very little more may be needed”.

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