Criminal Liability
Cases
Donegal County Council -v- Health and Safety Authority
[2010] IEHC 286
Kearns P.
“In these proceedings the applicant seek an Order of Prohibition by way of application for judicial review to prevent the respondent from further investigating or prosecuting the applicant or its staff in respect of a road traffic accident which occurred on the 12th June, 2001 at Dunross, Culdaff on the Malin/Culdaff Road, Inishowen, County Donegal.
Shortly after 8.00 p.m. on the evening of 12th June, 2001 a tragic accident occurred at Dunross, Culdaff, County Donegal, when a grey Renault Clio driven by Sinead McDaid left the road and finished on its roof in a field on the left side of the road as one travels towards Culdaff. There was no other vehicle involved and the driver, Ms. Sinead McDaid, was thrown clear of the vehicle and sustained injuries from which she died later that night. She had been travelling alone at the time of the accident.
It is common case that workers in the employ of the applicants had been working on the road surface earlier that day. The section of roadway where the accident occurred had been newly tarred and covered over with loose chippings over a distance of approximately one mile. This work had ceased at around 11.00 a.m. and traffic control in the form of “follow me trucks” was in place until 3.00 p.m. at which point traffic control was removed and normal usage of the roadway was resumed. Loose chipping signs (slow – loose chippings – 20mph) remained in place at both ends of the works and in the middle thereof.
……
Ultimately in November, 2006, some five and a half years after the accident, the respondent decided to further investigate the matter, relying on this occasion on s.34 of the Safety, Health and Welfare at Work Act 2005 (hereinafter “the 2005 Act”).
The respondent contends it has jurisdiction to conduct such an investigation on the basis that the location of the accident, namely, the stretch of roadway in question, was at the relevant time a “place of work” within the meaning of the 2005 Act.
On 12th March, 2007 the applicant instituted judicial review proceedings in which it sought an order of prohibition to prevent the respondents from either investigating or prosecuting Donegal County Council or its staff in relation to the material incident or from prosecuting or attempting to prosecute Donegal County Council, its staff or solicitors, pursuant to the provisions of s. 77(2)(d) of the Safety, Health and Welfare at Work Act 2005.
…..
THE SAFETY, HEALTH AND WELFARE AT WORK ACT, 2005
The Act of 2005 in its long title purports to do the following:-
“To make further provision for securing the safety, health and welfare of persons at work and for the enforcement of the relevant statutory provisions, to give further effect to Council Directive 89/391/EEC of 12th June, 1989 on the introduction of measures to encourage improvements in the safety and health of workers at work and Council Directive 91/383/EEC of 25th June, 1991 on measures to improve the safety and health at work of workers with a fixed-duration or temporary employment relationship, to provide for the further regulation of work activities, to continue in being and confer additional functions on the National Authority for Occupational Safety and Healthand rename that body as the Health and Safety Authority, to repeal the Safety, Health and Welfare at Work Act 1989, to provide for the repeal of certain other enactments and the amendment of the National Standards Authority of Ireland Act, 1996 and to provide for related matters.”
Section 2 contains various definitions.
“”Accident” means an accident arising out of or in the course of employment which, in the case of a person carrying out work, results in personal injury.
“Place of work” includes any, or any part of any, place (whether or not within or forming part of a building or structure), land or other location at, in, upon or near which, work is carried on whether occasionally or otherwise and in particular includes:
(a) in relation to an extractive industry including exploration activity, the whole area intended to house workstations to which employees have access for the purpose of their work relating to the immediate and ancillary activities and installations of, as appropriate—
(i) the surface or, as the case may be, underground extractive industry, including overburden dumps and other tips and any accommodation that is provided and, in the case of the underground extractive industry, any working area,
(ii) the extractive industry through drilling onshore including any accommodation that is provided, and
(iii) the extractive industry through drilling offshore, including any accommodation that is provided,
(b) a tent, trailer, temporary structure or movable structure, and
(c) a vehicle, vessel or aircraft.”
Notwithstanding the repeal of the Act of 1989, the National Authority for Occupational Safety and Health, by virtue of s. 32 of the Act of 2005, continued in being.
The general functions of the Authority are set out in s. 34 of the Act of 2005 and those functions include, at s. 34(1)(d) the making of “adequate arrangements for the enforcement of the relevant statutory provisions”.
By virtue of s. 62 of the Act of 2005 the Authority may authorise Inspectors for the purposes of the enforcement of all or any of the relevant statutory provisions within the relevant area of its responsibility. By virtue of s.64, an Inspector may at any time enter any place where he or she has reasonable grounds for believing is used as a place of work and may make inquiry to ascertain whether the relevant statutory provisions have been or are being complied with. By virtue of s. 70 of the Act of 2005, the Authority may at any time direct any of its staff to investigate the causes and circumstances surrounding any accident, incident, personal injury, occurrence or situation or any other matter related to the general purposes of the Act. By virtue of s. 72 of the Act, the Authority may serve an information notice on any person requiring that person to give to the Authority within such period and such form as may be specified in the notice any information specified in the notice that the Authority may reasonably require. By virtue of s. 77 of the Act of 2005 a person commits an offence where such person prevents, obstructs, impedes or delays an Inspector from exercising any functions conferred on him or her by the Act. Section 82 of the Act provides that summary proceedings in relation to any offence under any of the relevant statutory provisions may be brought and prosecuted by the Authority.
SUBMISSIONS OF THE PARTIES
The respective submissions of the parties may be briefly summarised. The applicant contends that it is a basic principle of administrative law that an administrative body may only act within the powers lawfully conferred on it by statute. Section 34 of the 2005 Act, on which the respondent relies, does not permit an investigation into completed roadworks or into the circumstances of persons travelling on the public highway driving motor vehicles. In this regard reliance was placed on the recent judgment of the High Court (Hedigan J.) in Cork County Council v. Health and Safety Authority and Vincent D’Arcy of the Health and Safety Authority – Inspector [2008] IEHC 304.
In those circumstances, it was contended on behalf of the respondent that the decision of the High Court in Cork County Council v. Health and Safety Authority did not preclude the respondent from carrying out the investigation in question.
……
DISCUSSION AND DECISION
……..
Consideration of this issue is facilitated by a consideration of very similar issues recently determined in the High Court by Hedigan J. in the case of Cork County Council v. The Health and Safety Authority and Vincent D’Arcy of the Health and Safety Authority – Inspector [2008] IEHC 304.
……..
Having noted that the Act of 2005 was in the nature of a penal statute and must as a result be strictly construed, Hedigan J. accepted that the overall purpose of the Act of 2005 related to the health and safety and protection of workers at work as expressed in the Directives transposed into domestic law by the Act of 2005. At para. 22 of his judgment he stated:-
“22. The functions of the respondents are set out in s. 34 and are clearly aimed at this very specific protective role. No role is given to the respondents either in the legislation or the regulations made thereunder in relation to road safety or the protection of road users. Yet it is to just that that the respondents directed their attention when they addressed themselves to the situation existing here. They addressed themselves to safety issues arising while DBM surfaces were in use between phases of work i.e. after the site of road works that had existed had been demobilised and the road opened to traffic but before a final surface was laid. During that period of time no road workers would be on site. In fact no site would exist. The respondents are characterising a road as a “place of work” when, according to the appellant, on any sensible view, it is not one.
23. Moreover, the appellant argues that the court should consider that the dominant purpose of the respondents action herein was the safety of road users. While this may of itself be laudable it is outside the scope of the Act of 2005. In this regard I have been referred to the cases of Cassidy v. The Minister for Industry and Commerce [1978] I.R. 297, in re: Crowley [1964] I.R. 106 and Kennedy v. Law Society of Ireland (No. 3) [2002] 2 IR 458. In these cases the Supreme Court has held that the dominant purpose of the exercise of an administrative power must be warranted by the scope of that power.
24. It seems to me that this argument must be correct. It is clear that the dominant purpose for which the respondents have issued the improvement notice is the protection of road users from a DBM surface which it considers to be unsafe, because it does not have sufficient skid resistance. The concentration on traffic control and monitoring on the site of possible future works whilst indeed a laudable concern is, it seems to me, essentially governed by the purpose of ensuring a certain final road dressing is laid. This dominant purpose has nothing to do with the safety and welfare of workers at work and is not in my judgment, a purpose within the scope of the Act.”
……
I find myself entirely in agreement with the reasoning of Hedigan J. in this judgment. The primary and dominant purpose of the Act of 2005 appears clearly from its long title. It is a legal measure which is all about worker safetyand it expressly so states.
While it might confer an incidental jurisdiction on the respondent in the case of a person who is not a worker but who is nonetheless injured while on a site which is a “place of work” at the time of the relevant accident, it does not seem to me to be a permissible purpose of the legislation to extend the parameters beyond those which are clearly provided by the legislation, particularly bearing in mind that this is a penal statute.
……
On the various other points which were argued in the case, I find myself in complete agreement with the submissions advanced on behalf of the respondent. I do not believe that where they legitimately pursue their inquiries under the Act of 2005 that they can be accused of adopting unfair procedures, nor do I feel that there has been any delay in this case of such magnitude as would preclude them from conducting an investigation or bringing a prosecution if they had the jurisdiction to do so. In fairness, counsel on behalf of the applicants did not press these points to any great degree during the hearing.
I am equally satisfied that no difficulty would have stood in the way of the respondent on the issue of non-retrospectivity as it was formulated on behalf of the applicant. Counsel for the respondent made it clear that the Health Authority fully accepted that in the context of any possible prosecution, only those penalties which were available under the 1989 Act could be deployed. I see nothing in the Act of 2005 which precludes an investigation into an event which preceded the enactment of the Act of 2005, particularly in circumstances where provision for investigation existed under the 1989 Act. Nor do I regard the initial or preliminary investigation undertaken in 2001-2 as in any way invalidating the decision made in November, 2006 to conduct a more thorough investigation into this matter.
But for the reasons stated I will make the Order of Prohibition sought in this case and will discuss with the parties whether any additional Declarations or other Orders are required or necessary.”
Kerry County Council -v- The Health and Safety Authority
[2013] IEHC 140
Kearns P.
It was submitted that The Safety, Health and Welfare at Work Act 2005 (hereinafter referred to as “the Act of 2005”) has as its core purpose the protection of workers. It applies to and places duties on all employers, self-employed persons and employees in all places of work. Importantly, “accident” is defined in s. 2 of the Act of 2005 as meaning “an accident arising out of or in the course of employment which, in the case of a person carrying out work, results in personal injury”. This would suggest that the definition of “accident” does not ordinarily include an accident involving a third party motorist, such as in the present case, given that the third party motorist was driving on a public road at the time of the accident in question. The various obligations under the Act of 2005 focus on the duties of persons in control of places of work and are all designed to ensure the safety, health and welfare of persons at work at places of work.
……
A contractor responsible for a construction site is obliged under the 2006 Construction Regulations (as amended) to ensure that the surroundings of the site and the perimeter are sign posted and laid out in such a way as to be clearly visible and identifiable and that appropriate precautions are taken to protect persons present at or in the vicinity of the site from risks which may arise from such site (Regulation 30).
It was further submitted that the respondent’s powers do not fall to be interpreted in a vacuum without regard to the factual context in which the powers are likely to be engaged. To interpret the Act of 2005 in the limited manner promoted by the applicant would have the effect of reducing the effectiveness of the respondent in its role of protecting public safety and would not be in keeping with the spirit and purpose of the Act. A significant part of the powers and functions of the respondent is preventative in nature.
The two principal Irish decisions interpreting the Act of 2005 were both consistent with the interpretation contended for by the respondent. In Cork County Council v. Health and Safety Authority [2008] IEHC 304, the road works in question had been completely demobilised at the point at which the fatal accident occurred and it was on this basis that Hedigan J. concluded the locus could not be regarded as a workplace within the meaning of the Act of 2005.
Similarly in Donegal County Council v. Health and Safety Authority [2010] IEHC 286 the decisive consideration in deciding that case was the fact that the roadworks in question had been demobilised and were final in that the project in which the workers had been engaged had been completed at the point in time at which the fatal accident occurred.
DECISION
The Safety, Health and Welfare at Work Act 2005 has as its main purpose, and as already noted, the aim of securing the safety, health and welfare of persons at work. It was enacted to give further effect to Council Directive 89/391/EEC of 12th June, 1989 on the introduction of measures to encourage improvements in the safety and health of workers at work and Council Directive 91/383/EEC of 25th June, 1991 on measures to improve the safety and health at work of workers. As such, the legislation is predominantly concerned with the safety of persons at work and the prevention of accidents, dangerous occurrences and personal injury at work.
Thus s. 34 of the Act of 2005 provides:-
……
While the Act of 2005 does not define “safety”, “health” or “welfare”, it does define “accident” as follows in section 2:-
“An accident arising out of or in the course of employment which, in the case of a person carrying out work, results in personal injury.”
“Place of work” is defined in the same section as:-
“… any, or any part of any, place (whether or not within or forming part of a building or structure), land or other location at, in, upon or near which, work is carried on …”
In Cork County Council v. Health and Safety Authority 2008] IEHC 304, the respondent had written to the applicant raising concerns about the use of dense bitumen macadam (DBM) surface on roads outside certain speed zones. The respondent claimed that allowing a situation to continue where roads had not yet received their final intended surface without appropriate control measures in place was unacceptable and that roads which had not had their final surface applied constituted an incomplete project within the scope of the Safety, Health and Welfare at Work (Construction) Regulations, 2001. The respondent issued an improvement notice under s. 66 of the Act of 2005. This notice was appealed to the District Court which in turn stated a case to the High Court. The respondent’s concern related to the lapse of time between the laying of a DBM surface and the subsequent laying of the permanent surface, during which time the road was opened to traffic. An issue arising in the case was whether the road on which the works had ceased between phases of surfacing works and which was opened to traffic during the period in question was a “place of work” for the purposes of the Act of 2005.
The High Court (Hedigan J.) found that the appellant’s arguments were correct, holding that the dominant purpose for which the respondent issued the improvement notice was the protection of road users from a DBM surface which it considered to be unsafe. The dominant purpose of the respondent’s concerns had “nothing to do with the safety and welfare of workers at work and is not … a purpose within the scope of the Act”.
However, the roadworks in that case had been completely demobilised (rather than temporarily suspended) at the point at which the fatal accident occurred, and it was on this basis that Hedigan J. concluded that the locus could not be regarded as a workplace within the meaning of the Act of 2005. In response, therefore, to the question posed as to whether s. 66 of the Act of 2005 applied to a local authority in respect of roadworks carried on by it or on its behalf, Hedigan J. held:-
“The answer to this question is yes but only where there are roadworks in being or imminent and only in respect of the safety of workers on site and road users present or likely to be present at the locus in quo.”
The scope of the definition of “place of work” was recently considered by this Court in Donegal County Council v. Health and Safety Authority [2010] IEHC 286. ……
A completely different situation exists in the present case in which by no stretch of the imagination could it be suggested that the works had been completed. Far from it. All the documentation in this case makes clear that the roadworks were intended to last over a period of some 20 weeks and had merely been suspended for the weekend when the accident occurred. There was no question in the present case of the workers having left the work site or having completed their functions there, two considerations to which I expressly adverted in the Donegal County Council case.
I am quite satisfied in this case that the stretch of roadway where this fatal accident occurred was, at the relevant time, very much still a place of work in the same way as a building construction site retains that character over the course of a weekend when work is temporarily suspended.
The 2006 Construction Regulations (as amended) referred to above define a “construction site” as “any site at which construction work in relation to a project is carried out”. The locus of the fatal accident in this case was clearly such a site. The 2006 Construction Regulations (as amended) define a “project” as “an activity which includes or is intended to include construction work” and I am satisfied a project was being undertaken by the applicant at the locus of this particular accident. The application of the 2006 Construction Regulations (as amended) can hardly be in doubt in this case having regard to the fact that the applicant prepared a Preliminary Safety and Health Plan in accordance with regulation 12 of the 2006 Construction Regulations (as amended) and further prepared a Construction Stage Safety and Health Plan in accordance with regulation 16 of the 2006 Construction Regulations (as amended). In these circumstances, it is not clear to me on what basis the applicant contends that the respondent has no powers of inspection of inquiry on foot of the 2006 Construction Regulations (as amended), nor do I understand the refusal of the applicant to furnish copies of the statutory documents when requested to do so by the respondent’s servant or agent in early October 2012, given that such a refusal is not consistent with an apparent acceptance that the 2006 Construction Regulations (as amended) applied to the site in question.
I am satisfied that the investigation of this fatal accident, occurring as it did at a place which is the site of ongoing construction works, temporarily suspended, is within the power of the respondent having regard to the terms of the Act of 2005 (in particular, s. 34 thereof) and the 2006 Constructions Regulations (as amended).
I might have reached a different conclusion if the works had been suspended for a period of weeks or months during which time the roadway might be characterised as having returned to its normal status, but that is very different from the present case where work was merely suspended for the weekend and where construction work was incomplete and indeed where plant and machinery remained at the locus in advance of the recommencement of work on the Monday following the accident.
For these various reasons, I am satisfied that I should refuse the relief sought in this case.”
The People (DPP) v. Roseberry Construction Limited
[2003] 4 I.R. 338
Hardiman J.
In this case the accused, which is a corporation, applies for leave to appeal against the severity of a sentence of fines totalling £200,000, imposed on it by the Naas Circuit Criminal Court on the 21st November, 2001, on a plea of guilty to breaches of the Safety, Health and Welfare at Work Act 1989, principally failure to prepare a safety statement as required by the said statute. A number of points are made, some relating to points of principle, some relating to the specific circumstances of the case. One in particular, we think requires attention. It is to the effect that the penalties imposed, bearing in mind that the principal of the company was also fined, amount in some degree to double counting because, as counsel for the accused said, the director, Mr. McIntyre, and the accused were basically the same thing. That is a point of view on which it is, perhaps, important to express an opinion. There is no obligation on any person conducting a trade, whether it is the building trade or any other business, to incorporate the business which he is conducting. He is entitled to trade, as no doubt he started, in his own name and to bear personally the risks attaching to that, namely the commercial risks. The director, as many other people, chose not to do this but to incorporate a company for the purpose of interposing the company between himself and various liabilities which might arise in the course of business. That is a thing which a person is fully entitled to do. If someone sued the director in respect of the liabilities of the accused, one can assume the director or his lawyers would be quick to point out that these are two completely different entities. He has drawn down the veil of incorporation, the effect of which is to render him, except in restricted circumstances arising under the Companies Acts, safe from liability for the accused’s debts.
The same must clearly apply in reverse in circumstances like these. The director and the accused are not “basically the same thing”. The accused may be a creation of the director’s, but it is created with the express purpose of being a separate entity. Moreover, s. 48 of the Act of 1989, as counsel for the prosecutor points out, specifically provides for the liability of an individual who is a director in addition to the liability of a company. That is plainly provided by a statute to which the court must give effect. The director and the accused were separately charged in recognition of that distinction and we cannot at all see that it is a point suggestive of an error in principle that an entity which the director, also an accused, expressly created to be separate from himself should be separately pursued in relation to this matter.
……
In this case the somewhat unusual approach was taken of stipulating that the accused could pay the fine – it is not going to drive it out of business or anything of that sort – but refraining from giving any indication whatsoever of the level of business which the accused conducts. The information that this court has is the same information as was before the Circuit Court Judge, that is to say that it is a medium to large company and that at the time of this tragic fatality it was conducting the building of some 90 houses at a site in Newbridge. It is plain that this was a substantial, relatively complex and profitable enterprise: that is all the information the court has.
It seems to us that the English case to which we were referred, R. v. F. Howe & Son (Engineers) Ltd. [1999] 2 All E.R. 249, seems reasonably to express the factors which are to be taken into account: aggravating factors, including death resulting in consequence of a breach, failure to heed warnings and risks run specifically to save money; and mitigating factors, including prompt admission of responsibility, a timely plea of guilty, steps to remedy the deficiencies and a good safety record. It might be worth quoting specifically from the judgment since this was a case, a tragedy, in which two fatalities occurred and since counsel for the accused has agreed that it is a matter which can be considered. It says at p. 254:-
“Next, it is often a matter of chance whether death or serious injury results from even a serious breach. Generally where death is the consequence of a criminal act it is regarded as an aggravating feature of the offence. The penalty should reflect public disquiet at the unnecessary loss of life.”
This, undoubtedly, was an unnecessary loss of life. Nor do we consider that the accused, the principal of the enterprise in question, the employer of the sub-contractors, can in any significant degree mitigate its liability by saying “Well, the sub-contractor, and not myself nor my company was directly in charge of digging the trench where the fatality occurred.” It is perfectly plain and it was not denied in the Circuit Criminal Court, that control of the site had been retained by the principal, that is to say, by the accused. Its failure to have a safety statement and the other failures significantly contributed to what occurred. If the safety statement had been prepared, the risk would have been formally considered and, no doubt, something done about it. It was the failure of any party to take the simple remedial measures that gave rise to the substantial legal and moral guilt which must be regarded as attaching in the circumstances of this case.
In summary, it does not appear to us that any showing has been made, any prima facie basis, for suggesting that these fines were excessive in their overall effect or that the various factors which went into the process whereby they were determined amount to an error in principle and we would refuse the application for leave to appeal.”
Associated Octel Ltd. R v.
[1996] UKHL 1; [1996] ICR 972; [1996] 4 All ER 846
HL LORD HOFFMANN
“The appellants, Associated Octel Co. Ltd. (“Octel”), operate a large chemical plant at Ellesmere Port. On 25 June 1990 there was an accident at the chlorine works. The plant was shut down for its annual maintenance and a small firm of specialist contractors called Resin Glass Products Ltd (“RGP”) were engaged in repairing the lining of a tank. Mr. Cuthbert, an employee of RGP, was working in the tank by the light of an electric light bulb attached to a lead. After grinding the damaged area of the lining, he had to clean it down with acetone before applying a fibreglass matting patch with resin. He had his supply of acetone in an old paint bucket which he had found in a refuse bin. While he was applying the acetone with a brush, the light bulb broke. Some of the liquid had probably dripped onto it. Acetone is volatile and gives off highly inflammable vapour. As Mr. Cuthbert was using an open bucket, there was a good deal of vapour in the tank. The broken bulb caused a flash fire in which Mr. Cuthbert was badly burned.
Octel was prosecuted for breach of sections 3(1) and 33(1)(a) of the Health and Safety at Work etc. Act 1974. Section 3(1) reads as follows:
“It shall be the duty of every employer to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment who may be affected thereby are not thereby exposed to risks to their health or safety.”
Section 33(1) states that it is an offence for an employer not to discharge a duty to which he is subject by virtue of section 3.
In voluntary particulars of the indictment, the Crown said that the conduct of Octel’s undertaking upon which they reliedwas the manner and method by which works of maintenance and repair were carried out. The failure of duty was a failure to control the works so as to ensure that persons not in Octel’s employment–Mr. Cuthbert was, of course, employed by RGP and not by Octel–were not exposed to risks to their health and safety.
…..
At the close of the prosecution’s case, Mr. Walker Q.C. submitted on behalf of Octel that there was no case to answer. He said that on the evidence the injury to Mr. Cuthbert was not caused by the way in which Octel had conducted its undertaking within the meaning of section 3(1). RGP were independent contractors and the cleaning of the tank was part of the conduct of their undertaking. Control was essential to liability under section 3(1) and Octel had no right to control the way in which its independent contractors did their work.
His Honour Judge Prosser rejected the submission. He said that Octel’s undertaking was the chemical business which it conducted on the site. The conduct of the undertaking included having the tank repaired, whether by employees or contractors. After this ruling, Octel closed its case without calling evidence. By section 40, the burden is upon the employer to prove that it was not reasonably practicable to take the precautions which would have avoided the risk. In summing up, the judge directed the jury that Octel conducted its undertaking by having the tank repaired by RGP. He drew attention to the fact that this had been done in a way which caused risk to Mr. Cuthbert–a risk which had materialised–and that Octel had called no evidence in support of a defence that it had not been reasonably practicable to ask whether he would be using inflammable substances or to take appropriate precautions. Not surprisingly, the jury convicted. The judge fined Octel £25,000.
Octel’s main ground of appeal to the Court of Appeal was that the judge had been wrong to reject its submission of no case to answer. The Court of Appeal rejected this argument and so would I. It is based on what seems to me a confusion between two quite different concepts: an employer’s vicarious liability for the tortious act of another and a duty imposed upon the employer himself. Vicarious liability depends (with some exceptions) on the nature of the contractual relationship between the employer and the tortfeasor. There is liability if the tortfeasor was acting within the scope of his duties under a contract of employment. Otherwise, generally speaking, the employer is not vicariously liable. But section 3 is not concerned with vicarious liability. It imposes a duty upon the employer himself. That duty is defined by reference to a certain kind of activity, namely, the conduct by the employer of his undertaking. It is indifferent to the nature of the contractual relationships by which the employer chooses to conduct it.
What, then, amounts to the conduct by the employer of his undertaking? Mr. Walker said that it meant carrying on activities over which the employer had control. In Austin Rover Group Ltd. v. Her Majesty’s Inspector of Factories [1990] 1 A.C. 619, 634, Lord Jauncey of Tullichettle said:
“Sections 2 and 3 impose duties in relation to safety on a single person, whether an individual or a corporation, who is in a position to exercise complete control over the matters to which the duties extend. An employer can control the conditions of work of his employees and the manner in which he conducts his undertaking.”
Mr. Walker says that the absence of a right to control the way in which the work is done is traditionally the badge of an employer’s relationship with an independent contractor. So, as RGP were independent contractors, it must follow that Octel were not in a position to exercise that complete control which is the basis of liability under section 3.
This again seems to me a confusion of thought. Lord Jauncey was stating what is, if I may respectfully say so, the self-evident proposition that a person conducting his own undertaking is free to decide how he will do so. Section 3 requires the employer to do so in a way which, subject to reasonable practicability, does not create risks to people’s health and safety. If, therefore, the employer engages an independent contractor to do work which forms part of the conduct of the employer’s undertaking, he must stipulate for whatever conditions are needed to avoid those risks and are reasonably practicable. He cannot, having omitted to do so, say that he was not in a position to exercise any control. This is precisely why Octel insisted that its contractors adhere to the “permit to work” system.
The concept of control as one of the tests for vicarious liability serves an altogether different purpose. An employer is free to engage either employees or independent contractors. If he engages employees, he will be vicariously liable for torts committed in the course of their employment. If he engages independent contractors, he will not. The law takes the contractual relationship as given and in some cases the control test helps to decide the category to which it belongs. But for the purposes of section 3, the category is not decisive.
The question, as it seems to me, is simply whether the activity in question can be described as part of the employer’s undertaking. In most cases, the answer will be obvious. Octel’s undertaking was running a chemical plant at Ellesmere Port. Anything which constituted running the plant was part of the conduct of its undertaking. But there will also be ancillary activities such as obtaining supplies, making deliveries, cleaning, maintenance and repairs which may give rise to more difficulty. In Reg. v. Mara [1987] 1 W.L.R. 87 Parker L.J. said, at pp. 90-91, this about the cleaning of a factory:
“A factory, for example, may shut down on Saturdays and Sundays for manufacturing purposes, but the employer may have the premises cleaned by a contractor over the weekend. If the contractor’s employees are exposed to risks to health or safety because machinery is left insecure, or vats containing noxious substances are left unfenced, it is, in our judgment, clear that the factory owner is in breach of his duty under section 3(1). The way in which he conducts his undertaking is to close his factory for manufacturing purposes over the weekend and to have it cleaned during the shut down period. It would clearly be reasonably practicable to secure machinery and noxious vats, and on the plain wording of the section he would be in breach of his duty if he failed to do so.”
I entirely agree and I draw attention to the language used by the learned judge. It is part of the conduct of the undertaking, not merely to clean the factory, but also to “have the factory cleaned” by contractors. The employer must take reasonably practical steps to avoid risk to the contractors’ servants which arise, not merely from the physical state of the premises (there are separate provisions for safety of premises in section 4) but also from the inadequacy of the arrangements which the employer makes with the contractors for how they will do the work.
Likewise in the present case I think that it was part of the conduct of Octel’s undertaking at Ellesmere Port to have the chlorine tank repaired. But I would not accept the extreme position of Mr. Carlisle Q.C. for the Crown, who submitted that “works of cleaning, repair and maintenance which are necessary for the conduct of the employer’s business” attract the duty under section 3(1). That would suggest that any repairs, cleaning or maintenance, wherever and by whomsoever they may be done, form part of the conduct by the employer of his undertaking. The cleaning of the office curtains at the dry cleaners; the repair of the sales manager’s car in the garage, maintenance work on machinery returned to the manufacturer’s factory: all would in principle impose upon the employer a duty under section 3(1) to ensure that they did not create risks to the health and safety of workers and others at the drycleaners, garage and factory respectively. Mr. Carlisle said that the employer could always rely on the defence that it was not reasonably practicable to take steps to prevent risks arising from what other people did on their own premises. But I do not think that such a defence needs to be invoked. In the context of the Act, such activities cannot fairly be described as the conduct by the employer of his undertaking. If he has a repair shop as a part of his plant, that is an ancillary part of his undertaking. Likewise, as in this case, if he has independent contractors to do cleaning or repairs on his own premises, as an activity integrated with the general conduct of his business. But not in the case of activities carried on by another person entirely separately from his own.
It seems to me wrong to try to find some formula such as that of Mr. Carlisle to take the place of the simple words of the statute. Whether the activity which has caused the risk amounts to part of the conduct by the employer of his undertaking must in each case be a question of fact. The place where the activity takes place will in the normal case be very important; possibly decisive. But one cannot lay down rigid rules. A difficult borderline case was RMC Roadstone Products Ltd. v. Jester [1994] 4 All E.R. 1037. The employers engaged contractors to repair a building. The employers were going to buy new asbestos sheets for the purpose but the contractors offered to remove some from an adjacent disused factory. The employers obtained the permission of the owner. Their projects manager inspected the site with the contractors and warned them to be careful. They offered to supply the contractors with equipment. One of the contractors fell through a skylight on the roof of the disused building and was killed. The employers were charged under section 3(1) and the justices convicted. They said that it was not necessary for the employers to control the site on which the work was done. They were in a position to give specific instructions to the contractors as to how it should be carried on. They therefore owed a duty under section 3(1)
The Divisional Court set aside the conviction. Smith J. said, at p. 1047:
“I am unable to accept that the mere capacity or opportunity to exercise control over an activity is enough to bring that activity within the ambit of the employer’s conduct of his undertaking. Before he can say that an activity is within his conduct of his undertaking, the employer must, in my judgment, either exercise some actual control over it or be under a duty to do so. If the principal chooses to leave the independent contractor to do the work in the way he thinks fit, I consider that the work is not within the ambit of the principal’s conduct of his undertaking. It is wholly the contractor’s undertaking.”
I am afraid that I cannot accept this reasoning, which seems to me to involve a circularity. The employer is under a duty under section 3(1) to exercise control over an activity if it forms part of the conduct of his undertaking. The existence of such a duty cannot therefore be the test for deciding whether the activity is part of the undertaking or not. Likewise, the question of whether an employer may leave an independent contractor to do the work as he thinks fit depends upon whether having the work done forms part of the employer’s conduct of his undertaking. If it does, he owes a duty under section 3(1) to ensure that it is done without risk–subject,of course, to reasonable practicability, which may limit the extent to which the employer can supervise the activities of a specialist independent contractor. Although the case was very much on the borderline, I think that there was evidence upon which the justices were entitled to find in the particular circumstances of the case that having the asbestos sheets removed was part of the employers’ undertaking. The facts were a matter for them and their decision should not have been disturbed.
As the question of whether having the tank repaired was part of the conduct of Octel’s undertaking was also one of fact, it should properly have been left to the jury. Even if, as I think, the only rational answer was yes, it should still have been left to the jury: Director of Public Prosecutions v. Stonehouse [1978] A.C. 55. The judge did not do so. The effect of the summing up was to direct the jury to find on this point for the prosecution. This was understandable because the case was conducted on the basis that the sole issue was whether the fact that RGP were independent contractors took the work outside the scope of Octel’s undertaking. Having correctly ruled that it did not, the judge assumed that the matter was no longer in issue. But in my view there remained a question of fact which it was strictly speaking for the jury to decide.
The question then is whether this House should as in Director of Public Prosecutions v. Stonehouse apply the proviso to section 2(1) of the Criminal Appeal Act 1968 and dismiss the appeal. The test for whether the proviso may be applied was laid down by this House in Stirland v. Director of Public Prosecutions [1944] A.C. 315, 321. The House must be satisfied that “a reasonable jury, after being properly directed, would, on the evidence properly admissible, without doubt convict.” In written submissions after the argument in the House, the appellants submitted that this test was not satisfied. They said that they elected to call no evidence after the judge had wrongly ruled in favour of the Crown’s submission on the law. If the judge had construed the statute correctly, they would have been able to adduce evidence to show that they had no control over how the tank was repaired and that it was therefore not part of their undertaking.
If the appellants were right about the law, I think that there would be much force in this submission. But if, as I think, the question of fact which should have been left the jury is simply whether having the tank repaired was part of the conduct of Octel’schemical undertaking at Ellesmere Port, I cannot imagine what evidence could have been called by the appellants which would have led a properly instructed jury to return a negative answer. The tank was part of Octel’s plant. The work formed part of a maintenance programme planned by Octel. The men who did the work, although employed by an independent contractor, were almost permanently integrated into Octel’s larger operations. They worked under the permit to work system. Octel provided their safety equipment and lighting. None of these facts was disputed. In these circumstances, a properly instructed jury would undoubtedly have convicted. I would therefore apply the proviso, dismiss the appeal and affirm the conviction.”