C-T Aviation Solutions Ltd v Regina (Health and Safety Executive)

For the purposes of section 3(1) of the Health and Safety at Work Act 1974, a risk must be real and material, rather than trivial, fanciful or hypothetical. Whether a risk is material depends on the particular undertaking and the system it created. The fact that a comparable hazard may occur in everyday life, or outside the undertaking, does not displace the statutory test.

Where there is evidence that a redesigned pedestrian crossing exposed pedestrians to conflict with moving vehicles, and that practicable design features could have reduced or eliminated that danger, the issue of material risk is for the jury. The prosecution need not prove that the breach caused an injury, although an injury may demonstrate the risk.

The appellant, a civil-engineering design company, designed and supervised construction of altered traffic and pedestrian arrangements at Luton Airport. The redesign required pedestrians travelling between the terminal and the relocated drop-off area to cross an access road used by, among others, HGVs and taxis.

Following the death of a pedestrian who was struck by an HGV on an informal crossing, the appellant was convicted at the Crown Court at Luton of an offence under section 3(1) of the Health and Safety at Work Act 1974 and of contravening regulation 11(3) of the Construction (Design and Management) Regulations 2007. It appealed with leave on the sole ground that there was insufficient evidence of a material risk and the judge should therefore have upheld its submission of no case to answer.

1. Appeal dismissed. The trial judge was entitled to leave the issue of material risk to the jury. There was ample evidence capable of establishing a real risk to pedestrians arising from the appellant’s design and supervision of the altered airport layout.

2. Section 3(1) of the Health and Safety at Work Act 1974 concerns the failure to ensure safety so far as reasonably practicable. The prosecution had to prove a material risk to persons affected by the undertaking and a material connection between that risk and the undertaking. It did not have to prove that the alleged breach caused Mrs Whiting’s death.

3. A material risk is one that is real rather than trivial, fanciful or hypothetical. The appellant’s reliance on R v Porter was misplaced. That decision concerned unexceptional steps on a school site and did not add an everyday-life qualification to the statutory test. The relevant question was whether this crossing, at this location and with its particular design features, exposed pedestrians to a material risk.

4. The prosecution evidence identified an unsafe interaction between pedestrians and moving vehicles. It included the wide gap in the guardrails, the narrow crossing, the absence of give-way markings, and the possibility that an HGV and a pedestrian could move off together without the driver seeing the pedestrian. Evidence that traffic was light, slow and used by experienced drivers, and that the crossing resembled other informal crossings, raised matters for the jury rather than requiring withdrawal of the case.

5. The parties accepted that proof of material risk was common to the section 3 count and the regulation 11(3) count. The sufficient evidence on that issue therefore defeated the no-case submission on both counts.

• Court of Appeal (Criminal Division): dismissed the appellant’s appeal against conviction: [2015] EWCA Crim 1620.

• Crown Court at Luton: the appellant was convicted after trial of failing to discharge its duty under section 3(1) of the Health and Safety at Work Act 1974 and of contravening regulation 11(3) of the Construction (Design and Management) Regulations 2007.