To conduct his undertaking in such a way as to ensure - that persons not in his employment - are not exposed to risks – (Section 3, 4) - burden of proof
Court of Appeal (Civil Division)
Cova Products Ltd produced sheet vinyl for which they used a
large calendar machine which incorporated two mixers known as
Banbury mixers. Raw materials were fed into a hopper from which they
went into the mixers, and after mixing they were released into a
large bucket on a conveyer.
An employee of the sub-contractors Carter Brothers Ltd , Mr Greenwood, was working on the machine when he dropped a tool into the machine and then attempted to recover it. The machine was still working. He was caught by the movement of the conveyer and sustained fatal injuries. Cova, was convicted of two offences contrary to the Health and Safety at Work etc. 1974 and was fined. The company appealed against conviction.
Lord Justice Kennedy,
In count 1 of the indictment Cova was charged with contravening section 3(1) of the Act by failing to conduct its undertaking, namely maintenance work on calendar line 4, in such a way as to ensure so far as was reasonably practicable that Greenwood, who might be affected thereby, was not exposed to risks to his safety.
In count 2 Cova was charged with contravening subsection (2)(1) by failing to ensure so far as was reasonably practicable the safety of its employee Mr. Merilo, who was working with Mr. Greenwood, whilst carrying out maintenance work on calendar line 4.
In count 3 Carter was charged with contravening subsection (2)(1) by failing to ensure so far as was reasonably practicable the safety of its employee, including Greenwood, during the carrying out of maintenance work on calendar line 4.
The jury returned verdicts of guilty in relation to counts 1 and
2 and of not guilty in relation to count 3.
The appeal court held that the prosecution case in relation to counts 1 and 2 was not sufficiently strong that it could be satisfied as to the safety of the verdicts on those two counts. As it had indicated, there were live issues to be considered in relation to those two counts, and, given that the jury was not
satisfied as to the guilt of Carter in relation to count 3, where there was less to consider, the court could not properly conclude that the verdicts on counts 1 and 2 were safe. The court held that the appeal must be allowed and the convictions quashed.
R v Associated Octel 
R v Nelson Group Services (Maintenance) Limited 
McKecknie and others 
Clarke and Fletcher