Polyflor Ltd v Health and Safety Executive

For an offence under section 2(1) of the Health and Safety at Work, etc, Act 1974, the prosecution need prove exposure to a material risk, not that the particular accident was foreseeable or caused by the employer’s breach. A risk created when unguarded moving machinery is operated may remain material even if injury results from an experienced employee’s careless or foolish act.

Once there is evidence of exposure to risk, reasonable practicability is a matter for the employer to establish. The prosecution’s evidential threshold was met where the employer’s system permitted maintenance while guards were removed from machinery with dangerous moving parts.

The appellant company was convicted unanimously at Manchester Crown Court of failing, so far as reasonably practicable, to ensure the health and safety of its employees, contrary to section 33(1)(a) of the Health and Safety at Work, etc, Act 1974. An experienced technician fractured his arm when he used a spanner near an unguarded running conveyor during maintenance.

The company renewed an application for leave to appeal after a single judge’s refusal. It contended that the trial judge should have upheld its submission of no case to answer because the technician’s admitted foolishness did not establish a material risk attributable to its system of work.

The central issue was whether the prosecution had adduced sufficient evidence of exposure to a material risk for the case to be left to the jury.

1. Leave was granted, but the appeal was dismissed. The trial judge was entitled to reject the submission of no case to answer and leave the statutory charge to the jury.

2. The Court held that the prosecution had to adduce evidence that employees were exposed to a possibility of danger amounting to a material risk. It did not have to prove that the particular accident was foreseeable, nor was causation an element of the section 2(1) offence. The Court applied R v Tangerine Confectionary Ltd & Veolia ES (UK) Ltd [2011] EWCA Crim 2015.

3. The risk that an experienced employee may carelessly, or even foolishly, depart from procedures near dangerous machinery can be material. Employee fault does not itself mean that the employer’s system created no risk. The relevant question was exposure to danger, rather than whether the employee’s precise act was sensible or foreseeable.

4. Here, the employer permitted the conveyor to run with guards removed so that maintenance could be performed. Its employees were thereby exposed to a clear, obvious and material risk from moving parts, including the consequences of their own carelessness. That was sufficient to cross the prosecution’s evidential threshold.

5. Once that threshold is crossed, the employer may establish that it did all that was reasonably practicable to avert the risk. The Court endorsed the summary of that allocation of responsibility drawn from R v Chargot Ltd (trading as Contract Services) [2008] UKHL 73. The appellant had chosen not to call positive evidence on reasonable practicability. The conviction therefore stood.

• Court of Appeal (Criminal Division): Leave to appeal against conviction was granted and the appeal was dismissed: [2014] EWCA Crim 1522.
• Manchester Crown Court: Following a jury trial, the company was convicted unanimously under section 33(1)(a) of the Health and Safety at Work, etc, Act 1974, fined £7,500 and ordered to pay £34,000 costs.