Chargot Ltd (t/a Contract Services) & Ors, R. v

For offences under sections 2 and 3 of the Health and Safety at Work Act 1974, the prosecution must prove that the defendant owed the relevant duty and that employees or others were exposed to a real risk arising from the employment or undertaking. It need not identify and prove particular precautions which the defendant failed to take.

Once that risk is proved, section 40 places the legal burden on the duty holder to prove, on the balance of probabilities, that it was not reasonably practicable to do more. Section 40 does not apply to the separate liability of a director under section 37.

Following a fatal dumper-truck accident during construction work at Heskin Hall Farm, Chargot Ltd was convicted under section 2(1), and Ruttle Contracting Ltd under section 3(1), of the Health and Safety at Work Act 1974. Their managing director, George Ruttle, was convicted under section 37(1).

At Preston Crown Court the companies received substantial fines and costs orders. They appealed against conviction and renewed applications for permission to appeal their sentences.

The principal issue was whether, before section 40 shifted the burden to the defence, the prosecution had to particularise the precise safety measures that should have been taken, rather than prove exposure to a risk arising from the use of dumper trucks.

1. The appeals against conviction were dismissed. Leave to appeal against sentence was granted, but the sentence appeals were also dismissed.

2. Sections 2 and 3 of the Health and Safety at Work Act 1974 impose a continuing duty to secure a state of safety so far as reasonably practicable. The prosecution had to prove the relevant duty and a real risk to health or safety arising from the employment or undertaking. It was not required to formulate particular alleged failures in safety arrangements before the burden under section 40 arose.

3. The risk of injury from driving the dumper truck was proved. The fatal accident showed that it was real rather than hypothetical. The companies therefore had to prove that it was not reasonably practicable to do more to protect against that risk. The route-to-verdict direction correctly reflected that structure. The phrase more likely than not did not impose a standard higher than the balance of probabilities.

4. There was sufficient evidence that Ruttle Contracting Ltd was the principal contractor. On the facts and the parties’ accepted direction, that was sufficient to establish a prima facie case that it conducted the undertaking for section 3 purposes.

5. The judge wrongly invited the jury to apply section 40 to the director’s section 37 charge. However, the direction came only after the jury had been directed to find the company’s breach and the director’s consent, connivance or neglect. It was surplusage and could not make the conviction unsafe.

6. The fines were not manifestly excessive. The serious absence of health-and-safety consideration justified substantial fines within the appellants’ means.

• Court of Appeal (Criminal Division) — in [2007] EWCA Crim 3032, dismissed the appeals against conviction. It granted leave to appeal against sentence but dismissed those appeals. It certified questions of general public importance but refused leave to appeal to the House of Lords.
• Crown Court at Preston — on 10 November 2006, convicted Chargot Ltd under section 2(1), Ruttle Contracting Ltd under section 3(1), and George Ruttle under section 37(1) of the Health and Safety at Work Act 1974.