Case studies: Reverse burden of proof
Relevance of these cases
I reference these cases in Chapter 12 of my book, because they remind us that when someone is harmed at work, we need to prove we couldn’t (reasonably) have done to prevent that harm. Some cases are referred to in other chapters and articles, so you might have come here another way.
In all cases HASAW refers to the Health and Safety at Work Act 1974, and s.3 (etc) refers to the section number.
Case: Aster Heathcare Ltd (AH Ltd at appeal) and Mr SJ (2021)
What happened?
In February 2015, a resident at a nursing home died three days after receiving serious scalds to her legs caused by extremely hot bath water. She was being assisted by two carers, but they had not been provided with adequate training. The bath where the resident received her fatal injuries was fitted with a Thermostatic Mixer Valve (TMV), but it was the wrong type, was defective and had not been serviced.
The prosecution argued that training and the correct selection, maintenance and use of TMV would have prevented the death.
The company were charged under HASAW s.3(1) for failing to protect others not in their employment, and under s.33 for failing to discharge their duty. Mr SJ, a director of the company, was charged under s.33 and s.37.
Both the company and the director pleaded not guilty and made a joint application at for a preparatory hearing under s.29 of the Criminal Procedure and Investigations Act 1996. They wanted a ruling from the judge regarding where the burden lies under HASAW s.40.The judge found in favour of the prosecution.
The case went to the Court of Appeal because “AH Ltd and Mr SJ” wanted to appeal against the trial judge’s ruling.
The importance of the case
The defence tried to overturn Davies and Chargot. They had a number of arguments:
- Article 6(2) of the European Convention on Human Rights, presumes innocence until proven guilty, and the reverse burden of proof goes against this principle.
- The introduction of sentencing guidelines in 2016 made it more likely that someone could go to prison if they could not prove they had done everything reasonably practicable. This could mean, they argued, that a defendant could go to jail even when reasonable doubt exists.
The introduction of s.34 and s.35 of the Criminal Justice and Public Order Act 1994 means that defendants in health and safety cases now face additional pressures to provide evidence and explanations during investigations and at trial. For example, defendants in health and safety cases may feel more compelled to provide explanations and evidence early in the investigation process to avoid adverse inferences being drawn from their silence. This could potentially make it easier for the prosecution to build a case against them.
The defence was unsuccessful, and it remains true that when someone is harmed the defence must prove that it wasn’t reasonably practicable to prevent the accident (or that the accident wasn’t reasonably foreseeable).
There is nothing disproportionate in the reverse burden imposedon defendants by s 40 of the Health and Safety and Work Act 1974.
Penalties
After this appeal failed, Aster Healthcare Ltd pleaded guilty to Corporate Manslaughter and were fined £1.04 million.
More information came out afterwards, with one account stating:
The company admitted falsifying water temperature records, falsifying a record of the servicing of the thermostatic mixing valves, and falsifying a contract of the servicing to be provided to the Care Quality Commission and Health and Safety Executive.
Elisabeth West, the care home manager at the time, pleaded guilty to HASAW s.3 and received a 9 month sentence, suspended for 18 months
One of the carers pleaded guilty to HASAW s.3 and received a 16 week sentence, suspended for 18 months.
Although earlier reports suggest Mr SJ was charged charged with a failure to discharge a duty, and of embarking on a course of conduct tending and intended to pervert the course of public justice, in the October 2021 reports he appears not to have received a penalty, despite the evidence that:
Aster Healthcare, under the director Sheth Jeebun, was run under a “chaotic” and “demanding” management style, Mrs Justice Thornton said. “Mr Jeebun delayed expenditure until he had to because regulators were breathing down his neck, and not when staff raised issues.”
More information
Aster Healthcare Ltd changed its name to Cardinal HC Ltd in May 2023, and at time of writing, Mr SJ is still a director.
You can read the full Court of Appeal decision
BBC news reports on the final case from 6 October 2021 and 8 October 2021 and
Case: Chargot (2008)
- This case is mentioned in chapters 1, 11 and 12
On 10 January 2003, Shaun Riley was working at Heskin Hall Farm, Lancashire, for Chargot Ltd. Extensive works, including the construction of a car park, were being carried out by Ruttle Contracting Ltd, with George Henry Ruttle overseeing the project. The work involved moving topsoil using a dumper truck. Initially, another employee drove the truck, but after he left due to a family emergency, Riley took over. The dumper truck was fitted with a seat belt, but Riley did not put this on. Riley successfully completed two trips without incident. On the third the dumper truck tipped over, and Riley was buried under the load of spoil. He was eventually pulled out but died the next day in the hospital. The exact cause of the accident was never determined.
Prosecution case
- Chargot Ltd were prosecuted under HASAW s.33(1) for breaching s.2(1).
- Ruttle Contracting Ltd were prosecuted under HASAW s.33(1) for breaching s.3(1).
Penalties
In the original case, the penalties imposed were as follows:
- Chargot Ltd: Fined £75,000 + £37,500 in costs.
- Ruttle Contracting Ltd: Fined £100,000 + £75,000 in costs.
- George Henry Ruttle (director of Ruttle Contracting): Fined £75,000 + £103,500 in costs.
In relation to the reverse burden of proof
- The case confirmed that once the prosecution establishes that a risk to health and safety existed, the burden shifts to the defendant (employer) to prove that they did everything reasonably practicable to mitigate that risk (HASAW s.40).
- The prosecution does not need to identify and prove specific acts or omissions by the employer. It is sufficient to demonstrate that a state of affairs existed which posed a risk to health and safety.
- Employers are required to ensure the health and safety of their employees and others affected by their undertaking, as far as is reasonably practicable. If an accident occurs, it prima facie indicates a failure to meet this duty, unless the employer can prove otherwise.
- The court held that the reverse burden of proof is compatible with the presumption of innocence under Article 6(2) of the European Convention on Human Rights, given the context and purpose of the legislation.
More information
2008 R v Chargot [2008] UKHL 73
Read the appeal ruling for more details.
Case: Davies (2002)
David Janway Davies was convicted under HASAW s.3(1) and s33(1).
David Davies ran a plant hire firmfrom a yard and workshop near Neath. He had three employees and three self-employed contractors. Mr Gardner is described as a subcontractor in the judgement, but this could be a mistake as he appears to be one of the three self-employed contractors, working under the direction of Davies.
On 25 January 2000 Gardner returned to the yard and asked Davies if there was any further work for him to do. Davies was working on a Volvo dumper truck in the workshop, and told Gardner to go home.
Davies then told an employee, Mr Ralph, to bring a vehicle into the workshop and park it near the dumper truck.
Ralph reversed the vehicle with its lights flashing into the open workshop. As he approached the truck, he had to retract the machine’s rear arm, which left him with very little visibility to the rear. Gardner was crushed between the moving vehicle and the dumper truck and sustained fatal injuries. Ralph did not see Gardner before the accident.
Davies had resumed working in the cab of the truck and noticed sometime before the accident that Gardner had not left the workshop, but he did not see the accident itself.
The case
The prosecution argued that Davies had not ensured that Gardner was safely out of the way before returning to work on the truck and could have guided the reversing vehicle himself. The defense claimed that Davies had done all that was reasonably practicable by telling Gardner to go home, shouting an instruction to Ralph, and relying on the noise and lights of the vehicle to alert Gardner to the danger.
It went to appeal because Davies contested the ruling of HASAW s.40, which places a reverse burden of proof on the defendant. This was, his legal team argued, incompatible with the presumption of innocence enshrined in Article 6(2) of the European Convention on Human Rights (ECHR).
In relation to guidance
The HSE presented one of its leaflets, entitled “Reversing Vehicles.” Although the leaflet is no longer available, it seems to cover the same advice that you’ll find on the HSE website – that deaths from reversing vehicles at work can be prevented by simple safety precautions, such as using a trained banksman..
Penalties
Davies was fined £15,000 + £22,544.32 in prosecution costs.
More information
R v Davies [2002] EWCA Crim 2949
For more details read the judgement