Jobs with high injury risk pose greater issues for employers

R v Chargot Ltd (t/a Contract Services) and others (House of Lords - 10 December 2008)

A dumper truck driver was killed when the vehicle he was driving overturned. There were no witnesses to the accident, and the precise cause was never established. Despite this, a successful prosecution was brought against Chargot Ltd for breach of s2(1) of the Health & Safety at Work Act 1974, and against another defendant for breach of s3(1) of the act. The prosecution argued that it was sufficient to identify and prove a risk of injury to the deceased arising from a state of affairs at work (for instance, that driving a dumper truck carries inherent risks).

The House of Lords held that it was not necessary for the prosecution to identify, allege and prove specific breaches of duty on the employer's part. The prosecution had to prove that the result the provisions of HSWA describe was not achieved or prevented - the result to be achieved under s2(1) HSWA is ensuring the health and safety of employees, so far as is reasonably practicable. Once done, a prima facie case of breach is established. The onus then passes to the defendant to prove that they had done all that was reasonably practicable to protect the health and safety of the deceased.

The House of Lords endorsed the Court of Appeal's view that the prosecution had clearly established the relevant risk of injury caused by driving the dumper truck. The Court of Appeal said it "was a real risk, as opposed to a purely hypothetical one ... established by the fact there was an accident".