Regina v Porter: CACD 19 May 2008

Everyday risks may be outwith Health and Safety

The defendant appealed against his conviction under the 1974 Act. He was headmaster at a private school. A child of three jumped from steps in the playground injured his head and was taken to hospital where he contracted MRSA and died.
Held: His appeal was allowed. The essence of the offence required it to be shown that the defendant had not done enough to ensure that the child was not exposed to risks by virtue of his conduct of the business. The fact that this was an everyday risk was a relevant to the question of whether the risk was incurred by virtue of the conduct of the operation. This was not a risk of the sort contemplated by the statute. Only once risk was established did the issue of whether reasonably practicable measures had to be taken.
Moses LJ said: ‘How then is the line to be drawn between those risks which are real and those which are hypothetical? It does not suffice merely to say that that must be left to the good sense of the jury . . There is no objective standard or test applicable to every case by which the line may be drawn. But in most, if not every, case there will be one way or the other important indicia — factors — which the jury are obliged to take into account to determine whether the risk is real or fanciful. None of them is determinative; but many (depending on the facts of any particular case) will be of importance. For example, the absence of any previous accident in circumstances which occur day after day will be highly relevant. That was a relevant feature in the instant case. The factors which led to this tragic incident must have replicated themselves over and over again throughout the years, but no child fell in such a way as to injure himself as the evidence seems to prove. Furthermore, no previous accident occurred despite the same allegedly inadequate level of supervision. There will have been countless times when a child moved, unsupervised, up or down those steps, or chose to jump from one level to another, without any previously recorded accident. Further, there was nothing wrong with the construction of the steps themselves. No allegation was made as to how they might have been better constructed so as to avoid an incident such as this. Moreover, there had been no previous accident elsewhere in the playground, despite the fact that in these two playgrounds there were numerous places from which a child might choose to jump. There were other flights of steps and other jumping places, including a raised bed on the upper level of the playground, a fire escape (which complied with fire regulations and was external to the building), and many walls. None of those had caused any problem, or come to the attention of any concerned governor, parent or teacher.’

Moses LJ, Beatson LJ, Sir Richard Curtis
[2008] ICR 1259, [2008] EWCA Crim 1271, Times 09-Jul-2008
Health and Safety at Work etc Act 1974 3(1)
England and Wales
CitedRegina v Board of Trustees of the Science Museum CA 26-May-1993
The appellants were convicted of failing to conduct their undertaking in such a way as to ensure, so far as was reasonably practicable, persons not in their employment were not exposed to risks to their health and safety. One of their buildings . .
CitedChargot Ltd (T/A Contract Services) and Others, Regina v CACD 13-Dec-2007
The defendant company appealed against its conviction under the 1974 Act after a driver was buried under the load when his truck overturned on a work-site.
Held: The appeal failed. The policy of the 1974 Act was to impose a positive burden on . .

Cited by:
CitedChargot Limited (T/A Contract Services) and Others, Regina v HL 10-Dec-2008
The victim died on a farm when his dumper truck overturned burying him in its load.
Held: The prosecutor needed to establish a prima facie case that the results required by the Act had not been achieved. He need only establish that a risk of . .

Lists of cited by and citing cases may be incomplete.

Crime, Health and Safety

Updated: 01 November 2021; Ref: scu.269924