R v Chargot Ltd and others: [2007] EWCA Crim 3032

CA: Latham LJ, Gibbs and Lloyd Jones LJJ: 13 December 2007

The first and second defendants were members of a group of companies, of which the third defendant was the managing director. The second defendant owned land on which a car park was being constructed. The first defendant employed workmen on the site. One of the workmen was asked by the foreman to drive a dumper truck with a load of spoil to a hole into which it was to be deposited. As the workman was driving down a ramp the dumper truck fell on its side, the workman was buried under the spoil and died. The first defendant was charged with contravening section 2(1) of the Health and Safety at Work etc Act 1974, and the second and third defendants were charged with contravening section 3(1) of the Act. The prosecution case against the three defendants was that the first defendant, as the employer of the deceased, had failed to ensure his safety; that the second defendant, as the company carrying on the undertaking, had failed to ensure that the project was not carried on in such a way as to expose the deceased and others not in the company’s employment to risks to their safety; and that, for the purposes of section 37(1), the third defendant, as a director of the second defendant, had consented to or connived in or neglected to prevent the commission of the section 3 offence. The defendants accepted that in relation to the use of the dumper truck there had been no risk assessments, no training and no safety helmets provided, but they nevertheless maintained, pursuant to section 40 of the Act, that they had done everything that was reasonably practicable to ensure the safety of the deceased and other workers. The defendants were each convicted.

The defendants appealed against conviction on the ground that the prosecution had failed to identify the scope of the duty alleged to have been breached by reference to specific criticisms of the way in which the work had been conducted.

The Court of Appeal held:
The policy behind the Health and Safety at Work etc Act 1974 was to impose a positive burden on employers rather than merely to discipline them for breaches of specific obligations. The prosecution had therefore been entitled to point to a state of affairs, namely the risk to the health and safety of employees or members of the public arising out of the use of dumper trucks, as amounting to a breach of the statutory duty under sections 2 and 3. Once that risk had been established, as it was by the fact that there was the accident, the onus was on the defendants under section 40 to prove that they had done everything reasonably practicable to protect against that risk. Accordingly, there had been no misdirection in the way in which the prosecution case had been left to the jury.

The appeals were dismissed.

Appearances: Richard Lissack QC and Ben Compton (Keoghs LLP, Bolton) for the defendants; Timothy Horlock QC and Gary Woodhall (Holdens, Lancaster) for the Crown.