| HEALTH AND SAFETY — Statutory offence — Employer's liability — Duty not to expose public to risks to health or safety — Child injured when jumping down school playground steps — Whether exposed to risk by lack of supervision — Whether requirement to guard against risks of everyday life — Health and Safety at Work etc Act 1974, s 3(1)
R v Porter; [2008] WLR (D) 167
CA: Moses LJ, Openshaw J and Sir Richard Curtis: 19 May 2008
There was no obligation upon an employer in the conduct of his undertaking to guard against those risks which were merely fanciful. The fact that risk was part of everyday life went to the issue whether an injured person had been exposed to real risk by the conduct of the operation in question. There was no objective standard which applied in every case but there would be important factors which would indicate one way or the other whether there was such a risk.
The Court of Appeal, Criminal Division, so held when allowing an appeal by James Godfrey Joseph Porter against his conviction on 31 July 2007 at the Crown Court at Mold (Judge John Rogers and a jury), of failing to ensure the health and safety of persons not in his employment, contrary to s 3(1) of the Health and Safety at Work etc Act 1974, for which he was fined £12,500 and ordered to pay £7,500 towards the costs of the prosecution.
S 3(1) of the Health and Safety at Work etc Act 1974 provides: “It shall be the duty of every employer to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment who may be affected thereby are not thereby exposed to risk to their health or safety …”
MOSES LJ, giving the judgment of the court, said that the defendant was the headmaster of a private school for children aged 3 to 16. There were two playgrounds on different levels, access between which was primarily by a set of brick steps. During morning break on 7 July 2004 a number of children were in both playgrounds. There was one teacher on duty on the upper playground. K, aged 3¾ years, went down the steps to the fourth from the bottom from which he jumped. He fell and suffered a head injury. He was taken to the local hospital and from there to the children’s hospital at Alder Hey where he contracted MRSA and died. There was no dispute but that the provisions of the Health and Safety at Work etc Act 1974 imposed a duty on the defendant headmaster in respect of the children playing in the playground. The particulars of the offence alleged that the defendant had exposed the child to the risk of falling from the flight of steps. The prosecution called witnesses from two other schools who said that they operated a level of supervision of two adults to 26 children but it was not suggested that that necessarily applied to playgrounds. It was to be noted that the safety record of those two schools was far lower than that of the defendant’s school. The prosecution had to establish that the defendant had failed to ensure that a child had not been exposed to risk to his safety by the “conduct of the undertaking”. In their Lordships’ view it was not necessary to provide any paraphrase of the statutory concept of risk even though judges had in the past found it necessary to do so: see R v Board of Trustees of the Science Museum [1993] 1 WLR 1171, 1177. What was important was that the risk which the prosecution had to prove was a real risk as opposed to a fanciful or hypothetical risk: see R v Chargot Ltd [2008] ICR 517, para 26. There was no obligation to guard against those risks which were merely fanciful. How was the line to be drawn? There was no objective standard which applied to every case but one way or the other there would be important indicia or factors none of which might be determinative but many might be of importance, e g evidence of any previous accident in similar daily circumstances. Such evidence was highly relevant in the instant case. Furthermore there was nothing wrong with the construction of the steps themselves and there had been no previous accident despite the fact that there were numerous steps from which a child might have chosen to jump. There were many considerations demonstrated by the evidence in this case which suggested that there was no real risk of the kind statutorily contemplated. The fact that risk was a part of everyday life did go to the issue whether the injured person was exposed to the risk by the conduct of the operation in question. In the light of that conclusion, unless it could be said that this child was exposed to a real risk by the conduct of the school no question as to the reasonably practicable measures taken to meet risk arose. The conviction was unsafe and the appeal would be allowed.
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