In June 2000 Denton Wilde Sapte advised a large insurance company that had provided an employers' liability policy to cover the cost of legal fees arising out of a health and safety prosecution.

The Health and Safety Executive (HSE) decided to prosecute a dockside operator following an accident where the driver of a dockside crane was ejected through the cab windscreen when the cab tipped forward. This was caused when four bolts holding the cab failed. The operator fell 10ft to the ground, suffering severe head and back injuries. Luckily he made a full recovery.

At the trial at Barking Magistrates Court, the defendant was found not guilty of all contested charges. This was achieved through complex expert evidence to prove that the defendant had taken every step “so far as

is reasonably practicable” to ensure that the premises were safe and without risk to health. This notion qualifies the general duties imposed by Sections 2 to 4 of the Health and Safety at Work Act (HSWA). The mere occurrence of an accident means that the working environment was not “safe and without risk to health”, but that does not automatically mean that the defendant breached its duty.

Striking a balance

The working environment must be assessed for risks and, as part of that, a particular risk must be weighed against the steps required to avert that risk. In other words, ensuring “so far as reasonably practicable” that the working environment is safe, means identifying a risk and balancing it against the time, trouble, cost and physical difficulty of taking measures to avoid it. Obviously where the consequences of these risks are high, the burden becomes a heavy one.

The defence is not easy to argue, particularly to a court armed with the benefit of hindsight. The defendant has the burden of proving it did all that was reasonably practicable to avert this risk but that in this specific case, unfortunately, it was not enough. In this case, the court awarded £45,000 out of central funds towards the defendant's costs, so the insurer was delighted.

Aside from the obvious penalties if a defendant is convicted, a successful prosecution under the HSWA 1974 can pave the way for subsequent civil action for damages.

Although the health and safety legislation is aimed primarily at employers, it is also manufacturers, suppliers, designers and importers of machinery that are subject to general duties to ensure, so far as is reasonably practicable, that machinery is designed and constructed to be safe, without risks to health when properly used (Section 6 HSWA).

In a case at Teesside Magistrates Court in November 2000, a manufacturer of a plastic press was fined a total of £45,000 after an employee of a company supplied with the machine received extensive arm injuries.

It was found that the machine had not been constructed so as to be safe when used at work. This was because safety switches on the machine were not properly wired, and could have failed at any point.

In addition the defendant had not supplied an operating manual with the machine, so it had failed to provide the user with adequate information on its use.

  • Jacqui O'Keeffe is a partner at Denton Wilde Sapte.