Employees inexplicable actions led to their deaths, says court

Three years ago proceedings were raised against Hatton Traffic Management Ltd (HTM) following the death of two employees. The case has been slowly making its way through the courts until February this year, when HTM were eventually acquitted of offences under the Health and Safety at Work Act 1974 (HSAW) by the unanimous verdict of a jury at Teesside Crown Court.

On 16 January 2002, Fred Cook and John Crimmins were asked to move a mobile tower light – a lighting tower used to illuminate contra-flows on motorway construction works – from the work site, to allow surfacing work to be done during the daytime. The men were under no time pressure and both were well experienced in moving such equipment, in what was a plainly accepted practice of lowering the lights first, retracting their stabilisers and then tying them to the towing eye of a van.

However, they chose to move the lights in their raised position – directly into overhead power lines, causing them both to be fatally electrocuted. Throughout the entire case, no explanation could be given by either Prosecution or Defence as to why the men did this.

The Prosecution argued that the placement of a tower light in the vicinity of overhead power lines represented a risk that warranted a formal assessment along with specific measures to prevent or reduce the risk of such an outcome. 

Whilst the Defence accepted that overhead power lines represented a hazard, they argued that the risk of contact was not significant enough to justify inclusion on a risk assessment, nor was there a need to adopt measures over and above those already in place. The measures already in place included the use of highly trained personnel – trained specifically to be aware of the dangers of overhead power lines and not to move the lights in their raised position. Signs were also placed on the tower lights themselves, warning against moving the equipment in its erect state due to the risk of coming into contact with overhead power lines.

The Defence argued, therefore, that it was simply not foreseeable that employees would not only disregard training and warning signs on the equipment, but also act in such an illogical manner so as to endanger their own lives. That which is not foreseeable is not, therefore, capable of being prevented by reasonably practicable measures such as inclusion on a risk assessment.

A day or so before the trial was due to commence at Teesside Crown Court, the Prosecution served a skeleton argument that that forseeability played no part in the reasonable practicability defence, and that employers are still required to take steps against unforeseeable risks stemming from the acts of an employee, citing the Management of Health, Safety and Welfare Regulations 1999, Regulation 21: “any act or default of an employee will not afford an employer a defence”.

Had the Prosecution argument been successful, and Regulation 21 been interpreted as capable of qualifying another statute (i.e. the HSAW), it would essentially have rendered the ‘reasonable practicability defence’ redundant, except in certain rare situations.

The matter, however, was taken to a pre-trial preparatory hearing, where the trial judge found in favour of the Defendant; that HTM could not have foreseen what was going to happen, that this was an acceptable approach, and that Regulation 21 did not remove the defence of reasonable practicability under the HSAW.

The Crown then appealed to the Court of Appeal, who upheld the decision of the trial judge. Concerns were raised following the Court of Appeal case, that it might have had huge implications for the HSE and for the entire approach to risk management, in that it effectively reversed the burden of proof by requiring the Prosecution to set out what reasonably practicable steps a defendant should have taken (rather than the Defence). In reality, however, the HSE will generally have sufficient evidence to establish pre-accident failures on the part of Defendants, making the effect of the decision somewhat limited.

To view the Law-Now article on the Court of Appeal case click here.

The trial then got off to rather a false start. It was due to commence in July 2007 but was aborted because the Defence sought particulars of what the Prosecution were contending was reasonably practicable. Although the Prosecution argued it was under no duty to disclose these particulars, the trial judge agreed with the Defence that they were entitled to know what they were reasonably expected to have done.

A new trial date was then fixed for January 2008. There, the Judge accepted the Defence argument that the issue of reasonable practicability had to be approached by looking at four key factors:

1.    whether there was an appreciable risk to employees’ safety;

2.    insofar as there was risk, what the incidence of that risk was;

3.    how that risk had been addressed by measures already in place; and

4.    how effective and costly it would be to implement further measures.

The jury unanimously agreed to acquit HTM of the charges against it under the HSAW. The rationale behind the acquittal was that this was not simply a case of employees acting contrary to their training; rather, their actions were inexplicable. That employees may take a shortcut is to be anticipated when there is a foreseeable benefit, but here, there was no such foreseeable benefit – if anything, to drag a ¾ tonne tower light 15m was more difficult than simply lowering it and driving it off site.

This case shows that it is possible to present a defence of reasonable practicability, despite the fact that where there has been a death in the workplace there will usually be an inevitable bias against a corporate defendant.

Article first published on Law-Now, CMS Cameron McKenna’s free online information service, reproduced with kind permission. For more information about Law-Now, please go to www.law-now.com.