• Higher Safety Higher Safety Chipmunk Data Chipmunk Data

    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.

    Latest Construction Health and Safety News

    CONTRACTS MANAGER HANDED TWO YEAR PRISON TERM

    Safety fall arrest netting would have saved life of deceased workman

    Read the rest of this article »

    Posted on 15th January 2020

    WORKER FATALLY INJURED BY CONCRETE BEAM

    Lifting operation not properly planned, managed and supervised

    Read the rest of this article »

    Posted on 15th January 2020

    TREE FELLING OPERATIONS LACKED DEFINED COMMS

    Workman struck by falling tree inside “normal” exclusion zone

    Read the rest of this article »

    Posted on 14th January 2020

    CONTRACTOR ARRESTED OVER WELFARE FAILINGS

    Recalcitrant sole trader failed to attend court hearing

    Read the rest of this article »

    Posted on 14th January 2020

    MAJOR DEMOLITION CONTRACTOR FINED £500,000

    Collapse of concrete slab caused death of worker and excavator fall

    Read the rest of this article »

    Posted on 14th January 2020

    FALL FROM LADDER WHILST CARRYING BUCKET

    Contractor failed to provide basic safe lifting aids

    Read the rest of this article »

    Posted on 14th January 2020

    FAILURE TO COMPLY WITH HSE NOTICE PROVES COSTLY

    Director given suspended jail term and company fined £60,000

    Read the rest of this article »

    Posted on 14th January 2020

    DEVELOPER FAILED TO PLAN AND CHECK COMPETENCE

    Fall caused by ad-hoc working methods and lack of monitoring

    Read the rest of this article »

    Posted on 14th January 2020

    CYLINDER LEAK TEST CAUSED FATAL INJURIES

    Corrosion inhibitor triggered failure and shrapnel ejection

    Read the rest of this article »

    Posted on 14th January 2020

    FESTIVE GREETINGS TO ALL OUR READERS

    Read the rest of this article »

    Posted on 20th December 2019

    JAIL TERM FOLLOWS ROUTINE HSE SPOT CHECK

    Director of a roofing firm handed a suspended prison sentence

    Read the rest of this article »

    Posted on 19th December 2019

    TEENAGER FELL 3M DURING BLOCK AND BEAM WORK

    Workers uninstructed and left to devise own safe system of work

    Read the rest of this article »

    Posted on 19th December 2019

    PARCEL CARRIER FINED HEAVILY OVER FLT INCIDENT

    Reversing fork lift lacked segregation from pedestrians

    Read the rest of this article »

    Posted on 18th December 2019

    CONTRACTOR FINED OVER FLOOR OPENING FALL

    Thorough risk assessment and edge protection were both inadequate

    Read the rest of this article »

    Posted on 18th December 2019

    THREE WORKERS “CARRIED ALONG” IN SEWER INCIDENT

    Mentally affected and one man treated for long-term traumatic stress

    Read the rest of this article »

    Posted on 11th December 2019

    SOLAR FIRM AND DIRECTOR SENTENCED OVER DEATH

    Brother of business owner died in fall during panel installation

    Read the rest of this article »

    Posted on 10th December 2019

    DIRECTOR AND COMPANY FINED FOR ASBESTOS RISK

    HSE refurbishment campaign inspection revealed asbestos offences

    Read the rest of this article »

    Posted on 10th December 2019

    BULK BAG COLLAPSE CAUSED BY UNSAFE STACKING

    Bulk bag collapsed onto workman when struck by fork lift

    Read the rest of this article »

    Posted on 9th December 2019

    INTERLOCKED GUARD NOT WORKING TO ISOLATE POWER

    Two workmen seriously injured when plant started unexpectedly

    Read the rest of this article »

    Posted on 9th December 2019

    STREET FURNITURE RISK TO PUBLIC FINED £1.4M

    Council prosecuted following injury to child playing on hinged bollard

    Read the rest of this article »

    Posted on 9th December 2019

    WORKMEN SUFFER SERIOUS BURNS FROM CABLE STRIKE

    Assessment and system of work failed to appreciate electrical risk

    Read the rest of this article »

    Posted on 29th November 2019

    LADDERS WERE INAPPROPRIATE FOR WORK ON ROOF

    Workman paralysed after falling whilst installing roof ladder

    Read the rest of this article »

    Posted on 28th November 2019

    FIRM FAILED TO MANAGE EXHAUST VENTILATION

    HSE enforcement notices on wood dust and welding fume ignored

    Read the rest of this article »

    Posted on 27th November 2019

    RECALCITRANT DIRECTOR BARRED FROM OFFICE

    Dangerous telehandler used despite earlier fatality and enforcement

    Read the rest of this article »

    Posted on 25th November 2019

    DIRECTOR HID UNSAFE WORKING PRACTICES FROM HSE

    Workers exposed to sprayed paints containing asthma causing isocyantes

    Read the rest of this article »

    Posted on 25th November 2019
  • Higher Safety Higher Safety Chipmunk Data Chipmunk Data

    One Response to “LANDMARK HOUSE OF LORDS DECISION”

    1. HSE PROSECUTION STRATEGY | PP Construction Safety News Desk Says:

      […] £6k in fines and costs incurred by the prosecution in addition to their own legal costs. The recent House of Lords decision in the Chargot case may provide greater impetus to this […]