Kent County Council v Health and Safety Executive

Under regulation 11 of the Provision and use of Work Equipment Regulations 1998, an employer must provide effective measures preventing access to dangerous machinery parts. Where guarding is practicable, a guard kept at a depot may not suffice when machinery is operated elsewhere. The offence is absolute. Training, supervision and reasonable precautions may mitigate but do not provide a defence where the required guard was not provided. Magistrates may draw reasonable factual inferences from circumstantial evidence when deciding whether a guard was available.

Kent County Council was convicted by magistrates of an offence under regulation 11(1)(a) of the Provision and use of Work Equipment Regulations 1998. An employee was injured when clothing caught on an unguarded power take-off shaft attached to an auger. The Council sought to remit the Case Stated so that further evidence could be added, arguing that the magistrates’ findings concerning the availability of a guard and the adequacy of training were unsupported.

The central issues were whether the magistrates were entitled to find that no guard was available at the depot, whether the evidence supported their training findings, and whether those findings affected the conviction.

1. Application refused; Case Stated withdrawn. The conviction could not realistically be challenged, even if the additional evidence were annexed.
2. Regulation 11(1)(a) creates an absolute duty. It is breached where the required guard is not provided. The employer must satisfy both the guarding and related protective-measures requirements in regulation 11(2).
3. It was practicable to guard the rotating shaft. The magistrates were entitled to infer from the evidence that no guard was available at the depot at the material time. Their finding that no guard was fitted when the accident occurred was plainly open to them.
4. The judge expressed the provisional view that having a guard at a depot would not satisfy the duty when the machinery was operated elsewhere. He had not heard detailed argument on that point, so the observation was not finally determined.
5. Employee dereliction of duty did not prevent the magistrates from finding that the guard was unavailable. Training, information and supervision could not cure the failure to provide the necessary guard. Even if all reasonable steps had been taken, system failure would not constitute a defence to an absolute offence, although it could amount to mitigation.
6. The training challenge was unnecessary to decide because the absence of a guard independently disposed of the matter. The claimant was ordered to pay the defendant’s costs, subject to detailed assessment if not agreed.

The judgment records a conviction by magistrates at Sevenoaks Magistrates’ Court. The High Court refused the application to remit the Case Stated, after which it was withdrawn.