CONSULTANTS VULNERABLE TO A CONVICTION?

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I suspect that many of you are aware that there has been increasing concern about the number of fatalities and serious accidents on construction sites. The speeding up of construction processes, as the demands of clients on price and delivery are keener, has exposed cracks and weaknesses over 18 years of de-regulation. In recent years there have been a number of safety seminars, but in reality they appear to have made little difference. However, the government now appears to be getting tough and the Health & Safety Executive is sending out the clear message that it intends to address failings in all parts of the construction industry. Whilst the media concentrates on the legal imposition of safety duties on directors and bosses, it is clear the agency are now targeting consultants in an attempt to “clean up” an industry where serious accidents and fatalities regularly occur.

There are three main types of health and safety offences. (a) Manslaughter by gross negligence, (b) Offences under the Health & Safety at Work Act 1974 (“HSWA”) and (c) Offences under regulations issued under HSWA.

In this article, I will concentrate on offences under the Health & Safety at Work Act 1974, as this has been a growing cause of concern amongst consultants. More specifically, interest has focused on various prosecutions under Section 3(1) of the Health & Safety at Work Act 1974.

Section 3 states that “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 maybe affected thereby are not exposed to risks to their health and safety”. It was this section that became a focus for the prosecution of Lindsey Barr Associates (a firm of consulting engineers) in relation to the unfortunate death of a contractor who was killed whilst carrying out refurbishment work, when a large section from the base of a foundation fell on him. Lindsey Barr Associates were prosecuted under Section 3(1) and this case illustrates the difficulty that all defendants will have in fighting a prosecution under Section 3(1). The core issue is that an enormously wide interpretation can be applied to the term “so far as was reasonable practicable”. How does one prove that everything reasonably practicable was done to ensure safety? I think we would all agree that there is nearly always some other measure that could have been employed to ensure safety, even if that measure was not realistic, given the particular set of circumstances. This section causes perhaps even more concern, when one considers that it is likely that where a serious offence is alleged to have been committed, the case is likely to be tried before a jury who may well be expected to understand complex, and at times confusing, issues without the benefit of a consultant background. It is not surprisingly that in such circumstances, a jury will often take a look at all the different factors and consider what they would have done in certain situations, regardless of how the law should strictly be interpreted. As such, it is arguably difficult to honestly review an incident without the benefit of hindsight.

Should a consultant fall foul of the HSWA, offences are triable summarily in the Magistrates Court or on indictment at the Crown Court. An offence under the Act could result in imposition of an improvement or prohibition notice or a full prosecution, if so in the latter case, in the Magistrates Court there is a maximum fine of £20,000 and/or six months imprisonment and in the Crown Court, unlimited fine and/or two years imprisonment.

Penalties for contravention of Section 3 can be harsh, and in the Lindsey Barr case, the consultants were fined £45,000 and ordered to pay £30,000 in costs. The court will take a number of factors into account, such as the degree of risk connected to the danger created by offence, and how far short of expectations did the defendant fall. The court will also take into account the defendant’s resources, but it is emphasised that the fine needs to be large enough to push health and safety matters to the forefront of the defendants’ minds. Other relevant factors will be matters such as the incident resulting in a fatality, or a consistent failure to heed warnings or the deliberate taking of risks for financial reasons.

The defendant may seek to mitigate it’s sentence by showing that he took action to remedy defects as soon as he was made aware of them, showing that he has a good safety record without any previous convictions, and that it has a good accident record in terms of number and severity of reported accidents. The level of resources of the defendant are also important, and the defendant will have to supply accounts and other financial information which is relevant to the prosecutor.

At present there have only been one or two prosecutions of designers under the Health & Safety at Work Act 1974 rather than the Construction (Design and Management) Regulations. However, I would have thought that the HSE will seek to ensure that many more consultants are prosecuted in the future. Ignorance of the legal impact of the Health & Safety at Work Act is leaving consultants vulnerable to criminal convictions for accidents on projects that they are designing and it is important that the Act is borne in mind, as if prosecuted under the Act, the effect of the consultant having to show and to prove that it took “reasonable and practicable” steps to protect workers from foreseeable risks, effectively reverses the burden of proof from the prosecution to the defendant. A hurdle, which to my mind, will in many cases be impossible to jump.

Michael Salau Email: michael.salau@blm-law.com

Michael Salau is a partner in the Construction and Environmental Group at Berrymans Lace Mawer