Risk not want not

On the 13^th October the Court of Appeal dismissed the appeal of C T Aviation in the case of R (on the application of Health and Safety Executive) v C T Aviation Solutions Ltd [2015] EWCA Crim 1620. C T Aviation solutions had been convicted of one offence under Section 3(1) of the Health and Safety at Work Act 1974 Act (Count 4) and Regulation 11(3) of the Construction (Design and Management) Regulations 2007 (Count 5).

A co-defendant, London Luton Airport Company Operations Limited, ‘LLAOL’, was convicted of (i) failing to discharge their duty under Section 3(1) of the 1974 Act contrary to Section 33(1) (a) of the 1974 Act (Count 1) and (ii) contravening regulation 3(1)(b) of the Management of Health and Safety at Work Regulations 1999 (The 1999 Regulations provide that every employer shall make a suitable and sufficient assessment of the risks to the health and safety of persons not in its employment arising out of or in connection with the conduct by him or his undertaking, for the purpose of identifying the measures he needs to take to comply with the requirements and prohibitions imposed upon him by or under the relevant statutory provisions and by Part II of the Fire Precautions (Workplace) Regulations 1997) (Count 2) and (iii) between 30 September 2009 and 25 May 2010 contravening a requirement imposed by an improvement notice served under section 21 of the 1974 Act contrary to section 33(1)(g) of the 1974 Act.

On 18 October 2013, the appellant was fined £70,000 and ordered to pay £30,000 costs on Count 4. No separate penalty was imposed on Count 5. LLAOL was fined a total of £75,000 and ordered to pay £197,595 costs.

The company specialised in traffic management designs for UK airports. It had produced designs for the airport in respect of changes in pedestrian and vehicular arrangements following the terrorist attack at Glasgow Airport in 2007 airport. A elderly lady had died after being hit by a lorry when she was crossing an access road. The prosecution alleged that the appellant had delivered a demonstrably unsafe system. It considered the crossing point to have been constructed in such a way that there was a material risk that people on the crossing could not be seen by lorries, which used it regularly, and that there were simple features which could have been incorporated into the design to reduce or eliminate that risk. The lorry driver was acquitted of causing death by careless driving. He gave evidence for the prosecution to the effect that the victim had crossed in the lorry’s “blind spot”. The company was convicted of failing to discharge its duty under the Health and Safety at Work etc. Act 1974 s.3(1) and contravening the Construction (Design and Management) Regulations 2007 reg.11(3) , the offences being contrary to s.33(1)(a) and (c) of the Act respectively. The issue was whether the judge had erred in refusing the company’s submission of no case to answer, made on the basis that there was insufficient evidence of material risk. The judge considered the issue to be a matter for the jury.

The company argued, relying on R v Porter (James Godfrey) [2008] EWCA Crim 1271, [2008] I.C.R. 1259, that a pedestrian crossing the road and colliding with a vehicle was an “incidence of everyday life that [was] tolerated by society”. It argued that, in the absence of evidence that that ordinary risk was increased for a particular reason, that could not be a material risk for the purposes of the legislation. The court took a particularly dim view of that submission.

The court in Porter was not purporting to depart from the statutory test or to put a gloss on it, and it was the statutory test which had to be applied. The facts in Porter were very different from the instant case. In the instant case, the airport was situated on private land and its road, parking and pedestrian system had recently been remodelled or redesigned by the company. Pedestrians were either the airport’s “guests” or employees as part of its undertaking, as was vehicular traffic, for which roads and parking were provided. Pedestrians and vehicles were brought together on the land for the purposes of the airport’s undertaking; the material risk created being “pedestrian and vehicular conflict”. The combination of an overly wide gap in the crossing guard rail, together with the absence of “give way” marks, had led to a situation where pedestrians trailing suitcases could enter the crossing and a lorry could be positioned where it could not see them. That was ample evidence of material risk, Porter and R v Chargot Ltd (t/a Contract Services) [2008] UKHL 73, [2009] 1 W.L.R. 1 applied. It was open to the defence to contend that the possibility of pedestrians crossing the road and colliding with vehicles was an incidence of everyday life tolerated by society, and that the crossing in question was no different to many others. However, the issue was whether that crossing, in that location, designed with the particular features it had, and did not have, had exposed pedestrians to a material risk to their health and safety. There was considerable force in the prosecution’s argument that if the fact that similar risks to those prosecuted existed in everyday life outside an employer’s undertaking was a complete answer to a prosecution under s.3, that would impermissibly rewrite the statutory test. The argument that the reliance on comparators, where standards of safety might be lower than those under consideration in a particular case, could lead to a “race to the bottom” also had force. There were points to be made for the company on all aspects of the prosecution’s evidence, which was recognised by the judge. The prosecution’s experts did not even agree on various matters. However, those matters had been for the jury to consider when resolving what was, on the facts, quintessentially a question for the jury.

Minded that the concept of risk is central to health and safety law enforcement and that the term invariably appears on most health and safety prosecution indictments in all but the most straight forward cases it is perhaps a little surprising that there is so little by way of authority on what constitutes risk at law. The paradigm definition was coined by Steyn LJ in R v Board of Trustees of the Science Museum [1993] 1 WLR 117 namely that risk connotes its ordinary meaning in English of a situation involving an exposure to danger. Porter, a surprisingly short judgment did not set down any principle of law and made no attempt to provide any guidance as to how the courts should approach the risk as a legal concept. The Court of Appeal in C T Aviation Solutions Ltd has not sought to clarify the position any further. Other than perhaps opening the door to the suggestion that what constitutes risk in a school is different from what constitutes risk at an airport. Which, of itself, is a factual distinction and not a matter of legal principal nor does it provide guidance to practitioners in advising on risk.