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Appeal win is good news for defendant companies

05 August 2008

A recent Court of Appeal decision has clarified the position with regard to s.3(1) of the Health and Safety at Work Act 1974 and specifically the concept of ‘risk’.

The case involved a three-year-old child who died from MRSA contracted in hospital.

He had been receiving treatment for a head injury suffered after falling down playground steps. At the time of the accident the only teacher supervising the 59 children at play was absent for approximately 30 seconds.

Under s.3(1) of the 1974 Act the employer (the headmaster) has a duty ‘to conduct his undertaking in such a way as to ensure so far as is reasonably practicable that persons not in his employment…are not exposed to risks to their health or safety’.

The prosecution only has to establish that there is a risk to health and safety, and that the risk is a real risk as opposed to a fanciful or hypothetical one. Once this risk is established, it falls to the defence to prove that it took all reasonably practicable measures to alleviate the risk.

At the first hearing, the headmaster was convicted after the particulars of the offence were put forward as being that the risk to safety was ‘falling on a flight of stairs’.

The Court of Appeal has overturned the decision, confirming that it is for the prosecution to establish that the child had been exposed to a risk caused by the ‘conduct of the undertaking’, which in this case is the school.

Expert evidence confirmed that there was no fault with the construction of the steps themselves, and no previous accident had occurred elsewhere in the playground, despite the fact that there were numerous places from which a child might choose to jump. No suggestion was put forward by the prosecution that the children should be supervised constantly.

All evidence pointed to the fact that there was no real risk. The prosecution suggested that greater supervision would have reduced the risk of the three-year-old jumping, but it would not have removed the risk.  Unless it can be said that this child was exposed to a real risk arising from the conduct of the school, then no question of the reasonable practicability of measures designed to avoid that risk arises.

The Court of Appeal confirmed that where the risk can truly be said to be part of the incidence of everyday life, it is less likely that the injured person could be said to have been exposed to risk by the conduct of the operations in question.  The headmaster’s appeal was allowed.

This case is good news for defendant companies, as it places a greater burden on the prosecution to establish that a ‘real’ risk caused by the undertaking existed and not just a fanciful or everyday risk.

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Michael Murray

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