In a recent case before the House of Lords HSE -v- Chargot Ltd (Trading as Contract Services) Ruttle Contracting Ltd and George Ruttle; the three appellants maintained that it was for the prosecution to prove the acts and omissions by which it was alleged that there had been a breach of duty pursuant to the Health & Safety at Work Act. It was maintained that it was not enough to simply assert that a state of affairs existed which gave rise to risk to health or safety.
The House of Lords found that the duties as set out in Section 1 of the act are general duties, namely that an employer has to ensure the Health and Safety at work of all his employees and that persons not in his employment are not exposed to risk to their health and safety.
The provisions in the act describe a result which an employer must achieve or prevent namely the exposure of employees or non-employees to risk. Those duties are not absolute because they are qualified by the words "so far is reasonable practicable". Therefore if the result is not achieved the employer will be in breach of his statutory duty unless they can show that it was not reasonably practicable for them to do more than was done to satisfy it.
A prima facie case is therefore established against an employer if the result is not achieved. The burden then passes to the defendant to make good the defence of reasonable practicability.
The Crown must therefore prove that a state of affairs existed. Therefore if an injury occurs at work prima facie the employer has failed to ensure the health and safety of the employee and a prima facie breach of Section 2 has occurred. Where an accident has not occurred but a risk is evident the Crown have to particularise that risk and prove the respects in which was there was a breach of duty. The Crown have to prove the respects in which a person was liable to be affected by the way the defendant conducted his undertaking.
Reassuringly, their Lordships found that there is an element of proportionality in that it is not the purpose of the regulations to impose burdens on employers that are wholly unreasonable. The aim of the duty under the statute is to ensure that an employer creates a safe working environment. The law does not aim to create an environment that is entirely risk free.
The House of Lords indicated that as far as the regulatory provisions are concerned the risks that exist have to be material i.e. an exposure to risk which any reasonable person would appreciate and take steps to guard against.
It is therefore arguable that we are now in the position that a test of reasonable foreseeability exists. The risk must be real not fanciful or hypothetical. The issue will of course be whether or not the foreseeability is subjective or objective. It is certainly arguable that it is subjective rather than objective.
In the advent of the new Health and Safety Offences Act 2008 with greater punishments available there is now an even greater duty on employers to ensure that policies and procedures are in place and are complied with. Risks must be assessed and policies put in place to deal with foreseeable eventualities.
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