11 December 2008
Jocelyn Dorrell

In a much-anticipated judgment, the House of Lords has upheld the Court of Appeal's decision in the Chargot case, which concerns what the prosecution must prove in health and safety cases and the implications of the reverse burden of proof.

On 10 December, the Lords dismissed Chargot and Ruttle Contracting's appeal against their convictions under the Health and Safety at Work Act, and decided that the fines imposed on the companies should stand.

The ruling confirms that in safety prosecutions, where there has been an injury, the responsibility rests not with the prosecution to detail and prove specific failings, but with the defence to demonstrate that they passed the "reasonable practicability" test in managing risk. But where an alleged breach has not resulted in an injury, the prosecution may need to do more.

In November 2006, Chargot and Ruttle Contracting were found guilty of breaching Sections 2(1) and 3(1) of the Health and Safety at Work Act (HSW Act) respectively over the death of Chargot employee Shaun Riley. Riley was killed in January 2003 after the dumper truck he was driving overturned, burying him beneath a load of spoil. Chargot, his employer, was fined £75,000 and principal contractor Ruttle was fined £100,000. George Ruttle, a director of Chargot and managing director of Ruttle Contracting, was also prosecuted, under Section 37 of the HSW Act, and was fined £75,000.

The three defendants were granted leave to appeal against both their convictions and sentences. Chargot and Ruttle Contracting argued that it was for the prosecution to identify and prove particular acts or omissions that amounted to failures to comply with Sections 2 and 3. But the Court of Appeal rejected the appeals, deciding that the risk was proven by the fact of the Riley's accident, and therefore the onus was on Chargot and Ruttle to prove they had done all that was reasonably practicable.

Chargot and Ruttle pursued the case to the House of Lords. Richard Lissack QC, for the defendants, argued that it was not enough for the prosecution simply to assert that a state of affairs existed which gave rise to a health or safety risk. But Lord Hope Of Craighead rejected this assertion.

"What the prosecution must prove," he decided, "is that the result that [Sections 2 and 3] describe was not achieved or prevented. Once that is done, a prima facie case of breach is established. The onus then passes to the defendant to make good the defence which Section 40 provides on grounds of reasonable practicability."

But, he added, how much the prosecution must do will vary from case to case: "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."

On offences committed by individuals under Section 37, Lord Hope of Craighead endorsed the view "that the question, in the end of the day, will always be whether the officer in question should have been put on inquiry so as to have taken steps to determine whether or not the appropriate safety procedures were in place."

He added: "The fact that the penalties that may be imposed for a breach of this section have been increased does not require any alteration in this test. On the contrary, it emphasises the importance that is attached, in the public interest, to the performance of the duty that Section 37 imposes on the officer."

The full judgment is available here.

Categories: News, HSE



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