‘So far as is reasonably practicable’ as a defence
The company, Nelson Group Services, had been involved in the installation, servicing and maintenance of gas appliances. One of their employees, a fitter, had, while removing a gas fire from a house, left the gas fittings in a condition exposing the occupier to health and safety risks. The fitter had been properly trained by the company, so enabling him to carry out his work safely and competently.
The company was prosecuted under HSWA s 3(1), which provides 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 may be affected thereby are
not thereby exposed to risks in their health and safety’.
The Crown Court convicted the company of failing to discharge its duty under the above provision. The company appealed. In the Crown Court the judge had directed the jury that if they found that the fitter had left the fittings in a condition exposing the occupier to health or safety risks, the defence of ‘reasonable practicability’ was unavailable to the defendants.
That was wrong. In the leading Court of Appeal judgment Roch LJ said that the fact that the employee carrying out the work had done so negligently did not of itself preclude the employer from establishing that everything ‘reasonably practicable’ had been done in accordance with HSWA s 3(1).
Although the circumstances where such a defence may be established are likely to be rare, the Court of Appeal in this case stated that an isolated act of negligence by an employee carrying out work on behalf of the company does not stop that employer from establishing a defence that it has done everything that is reasonably practicable.
The court said:
“It is not necessary for the adequate protection of the public that the employer should be held criminally liable even for an isolated act of negligence by an employee performing the work. Such persons are themselves liable to criminal sanctions under the Act and under the Regulations. Moreover it is a sufficient obligation to place on the employer in order to protect the public to require the employer to show that everything reasonably practicable has been done to see that a person doing the work has the appropriate skill and instruction, has had laid down for him safe systems for doing the work, has been subject to adequate supervision and has been provided with safe plant and equipment for the proper performance of the work.