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Darwin Awards
2009 Slush Pile

This item was recently submitted by a reader.
Should I include it in the archive?
Vote to tell me what *you* think!

Thames to go...

2009 Reader Submission
Pending Acceptance

An “unnecessary” prosecution brought by the Health and Safety Executive (HSE) was thrown out of court last month when the judge held that there was “not a shred of evidence that there was anything to be criticised in the actions of the defendants”. Two large engineering companies were being tried under section 3 of the Health and Safety at Work etc. Act 1974 (HSWA) and Regulation 10 of the Construction (Health Safety and Welfare) Regulations 1996 (CHSWR) for failing to ensure the safety of a worker who died during the dismantling of a temporary working platform in the River Thames in November 2002. The deceased contravened safety procedures when he climbed out of a guard-railed area carrying heavy equipment, traversed a wet metal beam nine inches in width suspended two metres above the fast flowing river, and proceeded to dismantle the very fixings holding the structure together. His actions caused the structure to collapse, crushing him to death.

The case first came to trial in November 2007. On that occasion the judge ruled that there was no case to put before a jury before any evidence was even called. The HSE successfully appealed the ruling to the Court of Appeal on a technicality and the case was returned to the Crown Court for a retrial.

During the presentation of the prosecution case, all of the witnesses for the prosecution gave unchallenged evidence which supported the defendants’ assertions that the risk to the deceased behaving in the manner which he did, was wholly unforeseeable and thus could not be guarded against. At the conclusion of the prosecution evidence, submissions of no case to answer were made by both defendants.

In a ruling dismissing the case, the judge recognised:

“The only apt, albeit unhappy, phrase is that he went on a frolic of his own. There is no evidence that such an act should or could have been foreseen in the circumstances as they existed on site; quite the reverse.”

The judge applied the principles in R v. Chargot (2009) 1CR 263 HL, R v. Porter (2008) EWCA Crim 1271 and Brown v. Grosvenor Building Contractors Limited (2006) EWCA Civ 590, concluding the “burden does not switch because the prosecution have failed to prove that it was the defendant who ... ‘exposed’ [the deceased] to the material risk which resulted in this tragedy”.

The judge was critical of the HSE’s decision to prosecute in the case and to pursue it through a retrial following their success in the Court of Appeal. He indicated that, had the application been made, he would be minded to make an award for the defendant’s costs to be paid by the HSE, rather than the bill being picked up by the general taxpayer.

The judgment gives a stark warning to the HSE to consider the evidential merits of bringing prosecutions following fatal accidents when there is no evidence that employers have breached health and safety law. The law requires the prosecution to show that the defendants have created a “material risk”. The reverse burden in health and safety cases means that there is often a temptation to believe that defendants must prove their innocence, but that is not the case in English law. The prosecution have a burden to discharge first, which they failed to do in this case.

The sensible approach of the learned judge is to be welcomed in recognising that many companies do strive hard to achieve a safe working environment for their employees and others working on their sites. Whilst no employer wishes to suffer a fatality on site, this case recognises that employers can only be expected to do so much to protect the workforce from foreseeable, material risks to health and safety.

Submitted on 05/20/2009

Submitted by: Richard Chalkley
Reference: http://www.workplacelaw.net/news/display/id/20276

Copyright © 2009 DarwinAwards.com

>> Moderator Scores <<

Bruce said:
Definitely Toss: Lacks Excellence
Thanks, Richard, but without more specific details on the accident itself I just don't find this all that interesting or amusing. We get lots of submissions of construction workers ignoring safety equipment, causing collapses of structures, etc. and this simply sounds all to similar to all the others.


Candi said:
Definitely Toss: Lacks Excellence
What Bruce said.


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