Case Study: Risks in Health & Safety - Part 2 - When is a risk not a risk?

Date: 28/09/11

When is a risk not a risk?

The HSE state that they believe risk management should be about "practical steps to protect people from real harm and suffering - not bureaucratic back covering". Their website describes their approach as "seeking a balance between the unachievable aim of absolute safety and the kind of poor management of risk that damages lives and the economy". However, those on the receiving end of a HSE investigation would not always agree that the HSE are looking for anything below absolute safety. Vikki Woodfine, a Senior Solicitor at DWF looks at case law and recent press coverage on this point to try to establish the extent of the burden on employers.

The Law

The Court of Appeal case of R v Porter provided those facing prosecution for health and safety offences with another route of successfully defending themselves. In cases previously, the HSE only needed to establish that a risk or a "possibility of danger" existed (R v Board of Trustees of the Science Museum). It would then be for the defendant to prove that he had done all reasonably practicable to ensure that persons were not exposed to that risk. If he failed to do so he would be convicted under the Health and Safety at Work Act 1974 (HSWA). However, fifteen years after the Science Museum case, the Porter decision helped to crystallise the definition of risk: a ruling that we believe to be in favour of both employers and common sense.

In R v Porter, Mr Porter was represented by DWF and he was being prosecuted following an accident at Hillgrove School in Bangor; the independent school he has owned and run for the past 33 years. In July 2004 a 3¾ year old pupil jumped down some steps in the playground within an area which was out of bounds to younger children. He was doing what most children do – playing! He injured his head and died in hospital five weeks later after contracting MRSA. On 31 July 2007 Mr Porter was convicted at the Crown Court at Mold for failing to ensure the health and safety of persons not in his employment contrary to s3(1) of the HSWA. He was fined £12,500 and ordered to pay £7,500 costs.

On appeal, this conviction was quashed on 19 May 2008 as the Court's view was that there is no obligation upon an employer in the conduct of his undertaking to guard against those risks that were merely fanciful. Risk is a part of everyday life, and the real issue had to be whether an injured person had been exposed to a "real" risk.

Following this was a case called R v Chargot, where the Court of Appeal initially stated that once an accident had occurred then a "risk" existed. This decision was clearly very unhelpful for employers, and the appeal to the House of Lords confirmed that the burden of proof in health and safety cases effectively lies with the employer, not the Prosecution. This was not an altogether surprising result given the facts of R v Chargot, but was nevertheless disappointing given the increasingly sympathetic approach of the appeal courts to defendants in health and safety prosecutions running up to this case.  The one comfort to come from the House of Lords was that they upheld the decision in R v Porter that the law does not seek to create an environment that is entirely risk free. The concern is risks that are material – a real risk.

How then is the line to be drawn between those risks which are real and those which are hypothetical? The Porter case means that insignificant risks, such as those arising from routine activities associated with everyday life in general can be ignored. It is clear that there is no standard test to be applied but there will be factors which a jury are obliged to take into account to determine whether the risk is real or fanciful. The absence of any previous accident will be highly relevant, pre-accident risk assessments will become important, and hindsight should be discounted.

Unless it can be proved by the prosecution that a real risk existed, no question of the reasonable practicability of measures designed to avert that risk arises. In practice, this means that the prosecution have more to prove, before the burden of proof is then reversed to the accused. These cases reflect a significant step forward for employers looking to defends themselves against what are sometimes seen as unreasonable prosecutions.

These decisions appear to be built around solid principles of common sense where the HSE have to establish a real "risk" at the outset. On the face of things, the HSE seem to agree with this approach on their website where it is said that sensible risk management is not about "creating a totally risk free society", nor is it about "exaggerating trivial risks". However, these comments form part of the HSE's sensible risk campaign which was launched in 2006, i.e. before the HSE prosecuted Mr Porter. Therefore, employers can be forgiven for feeling cynical towards the HSE's regular comments that they are not interested in trivial risks.

Political Change

The good news is that the change in government last year saw a change in focus for health and safety, with the Conservatives looking to reduce unnecessary burdens of small businesses. David Cameron had said that “Good health and safety is vitally important. But all too often good, straightforward legislation designed to protect people from major hazards has been extended inappropriately to cover every walk of life, no matter how low risk. A damaging compensation culture has arisen, as if people can absolve themselves from any personal responsibility for their own actions, with the spectra of lawyers only too willing to pounce with a claim for damages on the slightest pretext. We simply cannot go on like this".

It was this political stance and a desire from leadership to put some common sense back into health and safety that led to a review from Lord Young. His report, "Common Sense, Common Safety" was published on 15 October 2010 and it put forward a series of policies for improving the perception of health and safety, to ensure it is taken seriously by employers and the general public, while ensuring the burden on small businesses is as insignificant as possible.  David Cameron introduced the document as something to "put a stop to the senseless rules that get in the way of volunteering, stop adults from helping out with other people’s children and penalise our police and fire services for acts of bravery". The Government want to see a health and safety overhaul where a new system is introduced that is "proportionate, not bureaucratic; that treats adults like adults and reinstates some common sense and trust".

Whilst the HSE immediately offered a press release confirming that they welcomed Lord Young's report back in October 2010, we await evidence of the implementation of the recommendations made, particularly in their decisions as to prosecutions, as we move forwards.

In March 2011, the Employment Minister, Chris Grayling, made a major announcement on the Government's approach to health and safety stating that there will be an independent review of all health and safety legislation, the number of inspections will be cut by a third by focusing more tightly on high-risk sectors and those who manage risks poorly, and companies found to be putting people at risk will be charged for the cost of their inspection and follow-up action.  This announcement is clearly building upon the 'Common Sense, Common Safety' report produced by Lord Young last autumn. 

This is a welcome step to review a whole regulatory area, rather than small changes to individual regulations.  It provides the opportunity to identify duplications and inconsistencies within current health and safety laws which have been in place and built upon for over 35 years.  

The HSE and Local Authorities are said to be more tightly focusing on proactive inspections on high hazard and high risk sectors as well as companies with poor records.  A system sometimes referred to as 'fee for fault' will be introduced to charge companies for inspection and associated work if they are found to have significant failings (but not mere technical breaches).  In principle it certainly makes sense that if someone is to pay, it should be the companies who are taking an unfair short-term advantage by putting employees at risk. 

We believe that good employers can expect to see less of the regulator, but a company who performs poorly at an inspection can expect to be charged for the privilege and will receive a poor rating from the regulator, meaning they will be on the list for future visits.

It is hoped that under continued government pressure, businesses will no longer have to operate their health and safety policies in a climate of fear. But, in reality, only time will tell. The Court of Appeal was due to hear a combined appeal from Tangerine Confectionary Ltd and Veolia in June 2011 but this was adjourned and the next hearing date is currently not known. However, when this case finally reaches court it may, once and for all, lay the issue of "what is a risk" to bed.   

For more information please contact Vikki Woodfine, Senior Solicitor, on +44 0161 603 5060 or email vikki.woodfine@dwf.co.uk