1st December, 2008

Chargot Limited

House of Lords ruling on the burden on the Prosecution in proving a case under Sections 2 and 3 of the Health and Safety at Work Act 1974

Shaun Riley was killed in an accident at work when the dumper truck, which he was driving, overturned throwing him from the driver’s seat and burying him beneath the load which the truck had been carrying.

His death resulted in the prosecution of his employers, Chargot Limited (Section 2 HSWA) the principal contractor, Ruttle Contracting Limited (Section 3 HSWA) and George Henry Ruttle, a director (Section 37 HSWA). All were convicted following a trial at Preston Crown Court. All were fined and ordered to pay costs.

The Court of Appeal dismissed their appeals but certified points of general public importance and the Appellants sought to overturn their conviction in the House of Lords.

In December 2008 the House of Lords unanimously dismissed those appeals and upheld the convictions. The decision is of crucial importance to those practising in Health and Safety cases.

The Appellants argued that in proceedings under Sections 2 and 3, the Prosecution were obliged to prove specific breach or breaches of duty and that the jury must be directed (in accordance with R v Brown) that they could only convict if they were unanimous as to which breach of duty had been made out.

The Respondent argued that the Prosecution was only obliged to prove that there was a risk to health and safety whereupon the burden of proof shifted to the Defendant under Section 40 of the Act.

The House of Lords unanimously rejected the Appellants’ argument and dismissed the appeals.

Lord Hope gave the leading judgment and agreed with the Respondent’s approach. The duty imposed by Sections 2 and 3 was to achieve or to prevent a result. Once that had been proved, the burden shifted under Section 40. Prima facie a breach of Section 2 was demonstrated where an employee was injured at work. The same was true where a person not in the duty holder’s employment but who may be affected by the undertaking suffered an injury. It was not necessary for the Prosecution to specify or to prove any specific respects in which a duty had been breached.

Lord Brown agreed and emphasised the difference between Sections 2 and 3 and the duty under Section 7. No Brown direction is required in relation to case under Sections 2 and 3.

This case is fundamental to an understanding of the primary statutory provisions and the burden and standard of proof.

Tim Horlock QC was instructed by Holdens, Solicitors and represented the Respondent in the Crown Court, the Court of Appeal and the House of Lords.



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