Liability for Accidents at Work - A New Defense?

The Court of Appeal has provided support to employers wanting to use arguments of foreseeability and employee conduct to defend prosecutions under the Health and Safety at Work etc Act 1974 (“the Act”). This could have wide ranging ramifications for businesses as it offers a defence that has not historically met with favour in the courts.

The Facts

HTM Limited (“HTM”) provided traffic management services to contractors carrying out resurfacing works on the A66. Lighting was provided from mobile towers that extended to a maximum height of 9.1m. Power cables carrying 20,000 volts ran across the road hanging as low as 7.5m. Tragically two employees of HTM died when a fully extended tower that they were moving came into contact with one of the overhead power cables.

HTM’s position was that the tower should have been lowered prior to being moved in accordance with the training provided and instructions on the tower that made this clear. As a result they wished to adduce evidence at trial that the accident was the result of the employees own actions and that it could not be foreseen that they would act as they did. The HSE argued that:

• Forseeability played no part in determining whether there had been a breach of duty under the Act; and
  
• As a consequence of regulation 21 of the Management of Health and Safety at Work Regulations 1999 (“Regulation 21”) HTM could not use their employees own conduct as a defense.

Foreseeability

The Court of Appeal rejected the argument raised by the HSE, which, if accepted, would have meant that even the most unlikely and unforeseeable of accidents could have created a breach of duty. The court stated that a defendant (to a charge under sections 2, 3 or 4 of the Act) could not be prevented from putting forward evidence of the likelihood of the risk occurring in support of its case that it had taken all reasonable steps to eliminate the risk.

Conduct

Regulation 21 provides that an act or default by an employee cannot be used by an employer as a defence in any criminal proceedings.

After examining the law, the Court of Appeal found against the HSE on the basis that employee conduct went to the issue of “reasonable practicability” under the regulations. The court held that reasonable practicability does not operate as a “defense” so that Regulation 21 had no application to it. The practical effect of this decision was that HTM was entitled to put forward evidence to show that what happened was purely the fault of one or both of the employees who died.

Practical Implications

The decision in R v HTM Ltd will need to be carefully considered by all employers facing prosecution under the Act after an accident at work. Ultimately, there are likely to be only a relatively small number of occasions when an employer can convince the Court that the accident was entirely unforeseeable and/or purely the fault of an employee and that everything had been done to prevent the accident from happening.

Tags: breach of duty, court of appeal, defendant, health and safety, health and safety at work, hse, management of health and safety at work regulations, ramifications, safety at work