HTM, R v

For a duty to ensure safety so far as is reasonably practicable, the likelihood of the relevant risk eventuating is a material part of the assessment. It must be weighed against the measures needed to eliminate the risk, including their cost. Foreseeability is admissible only as a tool for assessing that likelihood. It does not introduce a civil-fault test or itself answer the statutory question.

The qualification forms part of the duty imposed by Health and Safety at Work etc Act 1974. It is not a separate defence. Accordingly, regulation 21 of the Management of Health and Safety at Work Regulations 1999 does not prevent an employer from relying on employees’ acts or defaults to show that all reasonably practicable measures were taken.

The respondent company was charged under section 2(1) of the Health and Safety at Work etc Act 1974 after two employees were fatally injured when a mobile lighting tower contacted overhead electricity cables.

At a preparatory hearing, the Recorder of Middlesbrough ruled that evidence bearing on foreseeability was admissible when assessing reasonable practicability. He also ruled that regulation 21 of the Management of Health and Safety at Work Regulations 1999 did not bar reliance on the employees’ acts or defaults. The Health and Safety Executive appealed those rulings. The central issues were the relevance of foreseeability and the effect of regulation 21.

1. Appeal dismissed. The Recorder correctly answered both questions in the negative.
2. Under section 2(1) of the Health and Safety at Work etc Act 1974, the words so far as is reasonably practicable require a balance between the likelihood of the relevant risk eventuating and the measures required to eliminate it, including cost. The court approved and applied the analysis in Austin Rover Group Ltd v HM Inspector of Factories [1990] 1 AC 619.
3. Foreseeability is relevant only in the confined sense that it assists the jury to assess the likelihood of the risk. It does not permit concepts of civil fault to be introduced into the statutory inquiry. The company could therefore adduce evidence about the likelihood of the accident and the precautions it had taken.
4. The court distinguished Dugmore v Swansea HS Trust and Anr [2003] 1All ER 333. Regulation 7(1) of the COSHH Regulations imposed an absolute primary duty to ensure that exposure was prevented or controlled. Its wording differed materially from section 2(1), where the reasonable-practicability qualification attached to the duty to ensure safety.
5. The qualification in section 2(1) defines the scope of the duty and the breach. It is not a defence, despite section 40 placing the legal burden on the accused to prove that no further reasonably practicable steps could have been taken. Regulation 21 therefore did not apply. The company remained entitled, consistently with Gateway Food Markets Ltd [1997] 2 Cr App R 40 and R v Nelson Group Services (Maintenance) [1999] 1 WLR 1526, to rely on employee carelessness in showing that all reasonably practicable steps had been taken.

• Court of Appeal (Criminal Division): Dismissed the Health and Safety Executive’s interlocutory appeal and upheld both preparatory rulings.
• Crown Court, Recorder of Middlesbrough: At a preparatory hearing on 23 March 2006, answered “No” to whether foreseeability evidence was inadmissible and whether regulation 21 barred reliance on the employees’ acts or defaults.