R v HTM: Criminal liability for Accidents at Work
R v HTM: Criminal liability for Accidents at Work
R v HTM[2006] EWCA Crim 1156
The facts
HTM were providing traffic management services for contractors (L) who were resurfacing the A66. There were contraflow works, lit at each end by HTM’s mobile telescopic towers which were 9.1 metres tall. 20,000 volt electricity cables passed overhead, dipping to 7.5 metres above the ground. HTM had two employees on site, C and D, who took their day to day instructions from L. C and D were told to move one of the towers. They did not lower the tower under the cables (contrary, said HTM, to their training and to instructions on the tower) and the inevitable happened, with fatal consequences for both employees.
The criminal proceedings
HTM were charged with failing to discharge their duty under s.2(1) of the Health and Safety at Work Act 1974, namely failing to ensure, so far as was reasonably practicable, the health, safety and welfare at work of all its employees, including C and D.
HTM has the burden of proving that it was not reasonably practicable to do more than it did (s.40 HSWA). As part of this, HTM wanted to call evidence to show that the accident was C and D’s fault and that it could not be foreseen that their employees would act in this way such that further precautions should have been taken.
The prosecution response was (1) foreseeability had no role in determining breach of duty and (2) HTM could not rely on C and D’s acts or defaults to avoid criminal liability, given Reg. 21 of the Management of Health and Safety at Work Regulations 1999 (below).
At a preparatory hearing, the judge ruled in favour of HTM on both points. The prosecution’s appeal was unsuccessful.
Foreseeability
The Crown’s submissions, in summary, were as follows:
(a) The purpose of the legislation was to “secure” the health and safety of persons at work (s.1(a)). Foreseeability does not arise when considering whether the s.2 duty has been met. It is only an issue where it is specifically mentioned (e.g. Reg. 1(2) of the Confined Spaces Regulations 1997) or when considering risk assessment under the discrete duty imposed by Reg. 3 MHSWR.
(b) The inspection and enforcement regime under the Act would be difficult to implement if there was an argument on foreseeability of risk, as there would be an inevitable element of subjectivity.
(c) The Court of Appeal (Civil Division) had held in Dugmore v Swansea NHS Trust [2003] 1 All ER 333 that the obligation on an employee under Reg. 7 of COSHH to “ensure that the exposure of his employees to a substance hazardous to health is either prevented, or, where this is not reasonably practicable, adequately controlled” was still breached even when the defendant showed that it was not reasonably foreseeable at the time that the substance was in fact hazardous to health. The absolute nature of the duty was made clear by the use of “ensure”. A similar approach should be taken for s.2 HSWA.
However, in Hatton Traffic Management, the Court of Appeal concluded that the relevant wording in Dugmore was significantly different. The other arguments were not really addressed in the judgment, as the Court of Appeal concentrated on the phrase “so far as reasonably practicable” as discussed by Lord Goff in Austin Rover Group v HM Inspector of Factories [1990] 1 AC 619. He had reviewed previous authority and said that in cases where the statutory duty is qualified by these words, “the risk of accident has to be weighed against the measures necessary to eliminate the risk, including the cost involved.” He later said that in considering whether the defendant had discharged the burden upon it, “there has to be taken into account (inter alia) the likelihood of risk eventuating. The degree of likelihood is an important element in the equation. It follows that the effect is to bring into play foreseeability in the sense of likelihood of the incidence of the relevant risk, and that the likelihood of such risk eventuating has to be weighed against the means, including cost, necessary to eliminate it.”
The Court of Appeal decided that this analysis was correct and authoritative. Latham LJ, giving the leading judgment, warned that foreseeability “is not a means of permitting a defendant to bring concepts of fault appropriate to civil proceedings into the equation by the back door; still less does it mean that the phrase “reasonably foreseeable” in itself provides the answer to the jury question.” However, defendants could not be prevented from adducing evidence as to the likelihood of the risk coming about in support of its case that it had take all reasonable means to eliminate the risk.
Reg. 21
Could HTM rely on C and D’s actions as a defence? Looking at Reg. 21 MHSWR 1999, you might at first think not:
“Nothing in the relevant statutory provisions shall operate so as to afford an employer a defence in any criminal proceedings for a contravention of those provisions by reason of any act or default of –
(a) an employee of his .....”
Reg. 21 was a reaction to R v Nelson Group Services [1999] 1 WLR 1526 (a s.3 HSWA case) where it was said that the fact that an employee had done the work carelessly did not itself preclude the employer from establishing that everything that was reasonably practicable had been done by the employer to ensure that third persons were not exposed to risks to their health and safety. It was not enough for the Crown to show that third parties were exposed to risks to their health and safety by the acts or omissions of someone for whose actions the defendant would be vicariously liable in civil proceedings.
The Court of Appeal said that Nelson Group Services was binding, subject to the effect of Reg. 21. The question was then whether “so far as is reasonably practicable” is a defence (in which case Reg. 21 would prevent HTM from using C and D’s actions to shield themselves from criminal liability) or whether the phrase qualified the duty that was imposed on HTM in the first place. Following previous authority, it was held that s.2 imposed a qualified duty, not a duty subject to a defence of reasonable practicability. Reg. 21 therefore did not apply.
Comment
There are clearly competing policy factors at work here. On the one hand, given the high numbers of accidents at work every year, the need for strict standards backed by the criminal law to protect vulnerable employees from injury and death is clear. On the other hand, punishing employers in situations where no-one before the accident (including an HSE inspector) could have foreseen the accident happening, or where an employer is only in breach because of a stupid or irresponsible employee who deliberately ignores his training and instructions, hardly helps matters. Criminalising the morally blameless employer may well be thought to be unfair, even in the context of striving for higher safety standards. In contrast, getting the morally blameless employer’s insurers to pay compensation for an unforeseeable COSHH risk is rather different and can be defended on risk-spreading grounds.
Despite the Court of Appeal’s warning that the use of foreseeability as part of the “reasonably practicable” qualification of the duty is not to be used to bring civil concepts of fault into criminal trials through the back door, this may be difficult to prevent. At any rate, the picture risks getting messier as defendants point the finger elsewhere. However, few risks are genuinely completely unforeseeable - even the risk of an employee not following his training can be foreseen. The focus has to be not just on the likelihood of the risk but also on the ease and cost of avoiding it.
As for the Reg. 21 point, further legislative changes may well follow. In the meantime, civil practitioners should note and adopt the more precise terminology used by the Court of Appeal: “so far as is reasonably practicable” turns up frequently in health and safety regulations (e.g. Reg. 4(1)(a) Manual Handling Operations Regulations 1992) and it should be remembered from now on that it is not a defence but a qualification of the underlying duty.