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    LANDMARK HOUSE OF LORDS DECISION

    Prosecution need only prove exposure to risk

    R v Chargot Limited (t/a Contract Services) and others

    Summary: Law Lords have ruled that in prosecutions under the HSW Act 1974 Sections 2 and 3 there is no requirement on the prosecution to specify how the employer failed to discharge his duties, nor prove the acts or omissions which lead to that breach. The prosecutor merely has to prove that health and safety etc was not ensured. An accident will be evidence that health and safety has not been ensured and the burden of proof shifts to the employer to show that he has done all that was ‘reasonably practicable’ to discharge the duty.

    Background: In January 2003 the driver of a dumper truck died when it overturned. Chargot Ltd was prosecuted under HSW Act Section 2, the Principal Contractor was prosecuted under HSW Act Section 3 and a Director common to both prosecuted by virtue of HSW Act Section 37. All three were convicted in November 2006 and subsequent appeals to the court of Appeal were unsuccessful. They appealed to the House of Lords and judgement was delivered on 10 December 2008.

    Issue: The House of Lords considered a question of public importance regarding prosecutions under HSW Act Sections 2, 3 and 37 offences, namely:

    • is it sufficient that the prosecution proves merely a risk of injury arising from a state of affairs at work or must they identify and prove specific breach or breaches of the duty?

    Decision: The Lords rejected the appeal saying “what the prosecution must prove is that the result that those provisions 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 (reverse burden of proof) provides on grounds of reasonable practicability.”

    The judgement also rejected the argument that allegations such as those in the prosecution’s case summary had to be specifically proved. Their Lordships stressed that HSW Section 2 and 3 impose a duty on employers to ensure health and safety, leaving it to the employers to establish, if they can, on the balance of probabilities, that it was not reasonably practicable for them to do more than they did do to achieve the required objectives of health and safety.

    Comment: The House of Lords judgement affirms the status quo in which the prosecution need only establish a risk and it remains for the defendant to prove that all reasonably practicable measures had been taken. Legal defence teams will feel the judgement leaves HSW Act prosecutions very difficult to defend whilst prosecutors will be relieved that this serious challenge to a long established principal has finally been dismissed.

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