R v HTM Ltd
[2006] EWCA Crim 1156
Independent editorial summary — not the official judgment. Read the full judgment via the source link.
Ratio Decidendi
In a prosecution under section 2 of the Health and Safety at Work etc Act 1974, foreseeability is relevant to whether the employer has proved under section 40 that it did all that was reasonably practicable — but only as a tool for assessing the likelihood of the relevant risk eventuating, not as a means of importing civil concepts of fault. Because the qualified duty to ensure safety so far as is reasonably practicable defines the offence itself and is not a defence, regulation 21 of the Management of Health and Safety at Work Regulations 1999 does not preclude an employer from relying on the acts or defaults of its employees to show that everything reasonably practicable had been done.
Facts
HTM Ltd provided traffic management services on a contraflow on the A66 between Greta Bridge and Lowfield, lit by mobile telescopic towers extending to 9.1 metres, at a site crossed by overhead power cables carrying 20,000 volts and as low as 7.5 metres. Two of its employees, Mr Cook and Mr Crimmins, moved a tower without lowering it — contrary to training and to the instructions on the tower itself — and it touched the cables, killing both men. Charged with failing to discharge its section 2(1) duty, the company wished to prove it had taken all reasonably practicable steps by way of training and instruction and that its employees' actions could not have been foreseen. At a preparatory hearing the Recorder of Middlesbrough ruled that foreseeability evidence was admissible and that regulation 21 did not preclude reliance on the employees' acts; the prosecution appealed.
Judgment Summary
The Court of Appeal (Latham LJ, Cooke J and Sir Richard Curtis) dismissed the prosecution's interlocutory appeal, holding that the Recorder answered both questions correctly. Adopting Lord Goff's analysis in Austin Rover Group Ltd v HM Inspector of Factories, the court held that a defendant asking the jury to consider whether it did all that was reasonably practicable cannot be prevented from adducing evidence as to the likelihood of the risk eventuating. Following Gateway Food Markets Ltd and Nelson Group Services, it further held that the phrase so far as is reasonably practicable forms part of the qualified duty whose breach gives rise to the offence and is not a defence, so regulation 21 of the 1999 Regulations has no application to it.
Key Quotes
"Forseeability is merely a tool with which to assess the likelihood of a risk eventuating. It is not a means of permitting a defendant to bring concepts of fault appropriate to civil proceedings into the equation by the back door; still less does it mean that the phrase “reasonably foreseeable” in itself provides the answer to the jury question."
— Latham LJ, para 22(verbatim, verified against the judgment)
"It follows that the phrase “so far as reasonably practicable” is not a defence. Regulation 21 can have no application to it."
— Latham LJ, para 31(verbatim, verified against the judgment)
Subsequent Treatment
In R v Tangerine Confectionery Ltd [2011] EWCA Crim 2015 the Court of Appeal recorded that foreseeability of the danger being relevant to reasonable practicability 'was decided in R v HTM Ltd [2006] EWCA Crim 1156, and was accepted by all the justices in Baker v Quantum' [2011] UKSC 17.
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