Electricity North West Ltd [2018] EWCA Crim 1944; [2018] 4 W.L.R. 148, CA.
- Summary
- Citing
- Cited By
Electricity North West Ltd v. Regina [2018] EWCA Crim 1944, Court of Appeal (Simon LJ, Sweeney and Goss JJ): appeal against conviction and sentence allowed in part; fine reduced but conviction upheld.
On 23 March 2017 in the Crown Court at Preston before His Honour Judge Altham and a jury, the appellant company was convicted on count 2 of contravening regulation 4(1) of the Work at Height Regulations 2005. The jury acquitted the company on count 1, breaching regulation 3(1) of the Management of Health and Safety at Work Regulations 1999, and on count 3, breaching section 2(1) of the Health and Safety at Work Act 1974. On 31 March 2017 the company was sentenced to pay a fine of £900,000 within 28 days and the statutory victim surcharge.
The three counts on the indictment resulted from an investigation into the fatality of John Flowers, a linesman employed by the company, who fell from height on 22 November 2013 while clearing ivy from a vertical wooden pole identified as pole 582651. As Mr Flowers carried out the work, he was held in place by a work positioning belt which was designed to allow him to lean back and work at height but not to arrest a fall. He was not wearing a fall-arrest lanyard. During the course of clearing the vegetation with a handsaw, Mr Flowers cut through his work positioning belt and fell, sustaining fatal injuries. It was not in dispute that this work ought to have been carried out from a Mobile Elevated Work Platform or alternatively from a ladder. The use of a positioning belt and a fall-arrest lanyard was a third and least appropriate choice but was nevertheless a choice open to linesmen.
Count 3 charged a general duty under section 2 of the Health and Safety at Work Act 1974 to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all employees. Count 1 charged breach of regulation 3 of the 1999 Regulations requiring a suitable and sufficient assessment of the risks to the health and safety of employees for the purpose of identifying the measures needed to comply with relevant statutory provisions. Count 2 charged breach of regulation 4(1) of the Work at Height Regulations 2005, which required that every employer ensure that work at height is properly planned, appropriately supervised and carried out in a manner which is so far as is reasonably practicable safe, and that its planning includes the selection of work equipment in accordance with regulation 7.
The prosecution case on count 2 was that the work on the pole was not properly planned. The reality was that nothing was planned for the work the linesmen had to perform in clearing vegetation or ivy from dead wood poles. There was no documented or other safe system of work for this task. The bottom line was that it was not properly planned, not appropriately supervised and not carried out safely. Nor was there proper selection of work equipment in accordance with regulation 7.
The defence evidence was that risk assessments had been carried out that were suitable and sufficient. A generic risk assessment system was set out in a Code of Practice 430 establishing procedures that linesmen were to follow and control measures that they must apply. Code of Practice 430 prescribed three methods of access to a wooden pole, albeit not a pole congested with vegetation: in order of preference, a Mobile Elevated Work Platform, a ladder and climbing with climbing irons with work positioning belt and fall-arrest lanyard. The Code of Practice 430 identified that a Mobile Elevated Work Platform should be used if possible. If that or a ladder could not be used, the risk assessment made it clear that a linesman should not climb a pole without a fall arrest lanyard, and because such a lanyard could not be used on a congested pole, the linesmen would know that they should not climb a pole without clearing it from the bottom so that a fall arrest lanyard could be used. A specific or dynamic risk assessment was done by the linesmen on site and was not necessarily recorded in writing. Such a risk assessment was, the company submitted, suitable and sufficient.
On 10 June 2013 a surveyor, Mr Mathie, had inspected the pole, suspected that there was rot at the bottom of the pole and noted that important markings which should have been visible were not due to the fact that the pole had become congested with ivy, and that there was ivy within the conductors. He advised that the company should cut the vegetation as soon as possible. It was accepted that none of the information and data gathered by Mr Mathie was passed on to the men who were to do the work. The work was then issued to a surveyor, Mr Robson, who inspected the pole and on 1 October 2013 completed a document setting out the work that needed to be done to make it compliant, including clearing the ivy. On the document was the word “MEWP”. The prosecution argued that this was a planning document which showed that the company had knowledge that a Mobile Elevated Work Platform was required. The defence submitted that the purpose of this document was to scope out the work to be done, not to prescribe the means by which it was to be done. Mr Robson agreed with this.
On 6 November 2013 Mr Flowers and Mr Bates visited the site. Mr Bates gave evidence that the purpose of the visit was to locate the link box and find the open point. They were not there to look at ivy or vegetation on the pole. They had some documents in a job pack, but these did not include Mr Robson’s survey. Mr Bates told the jury that on the day of the accident, they had not been told that they would have to clear ivy from the pole. They were there with the vegetation management team, one of whom, Mr Birkby, had a Mobile Elevated Work Platform. Mr Birkby told them that they needed to clear the ivy from the pole. The two men disconnected the electricity via the link box using the Mobile Elevated Work Platform, before they left for a twenty-minute break. When they returned the Mobile Elevated Work Platform was being used by the vegetation management team. They put a ladder up against the pole and Mr Bates footed until Mr Flowers was in position. He then put on his harness and work positioning belt and climbed the ladder. Neither man had their fall arrest lanyards with them. Mr Flowers secured himself to the pole with his harness and began stripping the ivy with a hand saw, while Mr Bates cleared the ivy from the lower part of the pole. He did not see Mr Flowers fall.
The trial judge identified the issues for the jury in relation to each count. So far as count 1 was concerned, the issue was whether the prosecution had proved that the company failed to make a suitable and sufficient assessment of the reasonably foreseeable risks to which the deceased and other linesmen were exposed while working at height clearing ivy and other vegetation from deadwood poles on or before 22 November 2013. As to count 2, the issue was whether the prosecution had proved that the work at height was not properly planned, and if not, whether it had proved that the work was not appropriately supervised, and if not, whether the defence proved on the balance of probabilities that the company had ensured that the work was carried out in a manner which was, so far as was reasonably practicable, safe. So far as count 3 was concerned, the issue was whether the prosecution had proved that the company exposed its employees who were engaged in removing vegetation from deadwood poles on or before 22 November 2013 to material risk to their health and safety, and if so, whether the company had proved on the balance of probabilities that it was not reasonably practicable to do more than was actually done to ensure the health and safety of its employees engaged in removing ivy from deadwood poles on or before 22 November 2013.
No criticism of the summing-up was pursued on the appeal.
The trial judge heard extensive argument as to the effect of the verdicts on the sentencing exercise. He concluded that there was no site-specific assessment done in relation to the clearing of the poles. However, there was no need for that because there was a combination of generic risk assessment in Code of Practice 430 and the dynamic risk assessment which was done on the day the work was to be done by the linesman themselves, and clearly that regime was, as the jury found and the judge accepted, a suitable and sufficient risk assessment procedure. However, there was no planning to ensure that the tools required to do the work at height were readily available. Indeed, the linesmen went to the site on the day the work was to be done without even knowing whether there was work at height to be done. That meant that when the linesmen had completed their suitable and sufficient risk assessment at the site and determined that they needed in this case a Mobile Elevated Work Platform there was no Mobile Elevated Work Platform readily available. That, of course, did not expose them to a risk of foreseeable harm because there were Mobile Elevated Work Platforms available at the yard which in this case happened to be close by, but often could be hours away, or they could use the Mobile Elevated Work Platform which the vegetation management had. Because there was no proper planning of the tools required to do the work the linesmen were left to either return to the yard to pick up a Mobile Elevated Work Platform or to disrupt the work of the vegetation management team by borrowing their Mobile Elevated Work Platform for potentially a number of hours. That, the judge held, could not be proper planning.
The judge later added that the test in relation to count 3 was exposure of linesmen to foreseeable harm. Regulation 4 of the Work at Height Regulations did not require any risk of foreseeable harm to be proved, but that did not mean that there was no likelihood of harm at all. The jury would have been quite entitled to conclude that by having a Mobile Elevated Work Platform available at the yard and on site, though being used principally by the vegetation management team, there was no foreseeable risk of a person attempting to do this work from a ladder. However, that did not mean that a failure to plan the work properly so that a Mobile Elevated Work Platform was available carried absolutely zero risk. The Work at Height Regulations created a strict liability to plan when work at height was carried out, presumably for good reason that liability was strict, presumably because of the potentially catastrophic consequences of work at height. The regulations required the work at height to be properly planned irrespective of whether there was a foreseeable risk of harm, so that planning should be done even when the risk was not foreseeable.
Mr Cooper QC for the appellant accepted that an offence under regulation 4(1) of the Work at Height Regulations 2005 was in effect an offence of strict liability, but he submitted that, as had been accepted by both parties at trial, the offences charged under all the counts bled into each other. The verdicts were consistent with a proper risk assessment and the conclusion that there was no foreseeable risk from the work that was carried out. This was crucial to the conviction on count 2, since proper planning did not exist in a vacuum but must be based on foreseeable risk of harm. The mischief in count 2, he submitted, was covered by counts 1 and 3. Code of Practice 430 provided the generic risk assessment and was complemented by the dynamic risk assessments made by qualified and trained linesmen on the day. Mr Cooper submitted that the judge’s view that work must be planned even if there is no foreseeable risk of harm and where a risk of harm was not foreseeable, was wrong. As to the second ground of appeal, Mr Cooper submitted that proper planning for foreseeable risks was covered by the verdicts on the other counts, and particularly count 1. Regulation 3 of the 1999 Regulations imposed a very wide duty. In the light of the acquittals on counts 1 and 3, there was nothing left on count 2, and on this basis the verdicts were inconsistent. The judge identified the need for a Mobile Elevated Work Platform, but there was a Mobile Elevated Work Platform available.
Mr Lawrence QC for the respondent submitted that the material duty under regulation 4(1) of the Work at Height Regulations, properly to plan was a strict duty, for the reasons given by the judge. The judge had identified the material planning failure. The company acknowledged that a Mobile Elevated Work Platform should have been available throughout, and in fact a Mobile Elevated Work Platform had been available earlier to make the line dead. However, it was not available when Mr Flowers and Mr Bates returned to carry out the removal of the ivy. Mr Bates gave evidence that he did not know that a Mobile Elevated Work Platform was available when they began to remove the ivy from the pole. It followed that there was a proper evidential basis for the conviction on count 2: the Mobile Elevated Work Platform should have been planned to be available for the two linesmen when they began to remove the ivy.
The Court of Appeal held that the fact that a risk was not reasonably foreseeable was not an answer to a charge of breaching regulation 4 of the Work at Height Regulations by a failure of proper planning. Proper planning for working at heights was a strict requirement due to the inherent danger of the work. In the present case a Mobile Elevated Work Platform was required for the work of clearing ivy from the post and, at the crucial time, one was not readily available; in other words, no plan had been made for it to be there. The fact that, on the jury’s verdict, this did not create a foreseeable risk was not an answer to the charge under count 2, although it was material to sentence. The parties had agreed that, despite the overlap of matters covered by the three counts, the judge should direct the jury in conventional terms that they should give separate consideration to each count and that their verdicts need not be the same. The defence agreed the form of the basic route to verdict on count 2: namely, if they were sure that the company, as an employer, failed to properly plan the work at height, then it was guilty of an offence. This was how the case was opened and how it was summed up, without comment or objection from the defence. Accordingly, the court rejected the first ground.
Turning to the second ground, the court approached the issue in the light of the guidance provided by the decision in R v. Fanning and others [2016] EWCA Crim 550, [2016] 1 WLR 4175. The first question was whether the conviction was supported by the evidence. Notwithstanding Mr Cooper’s submissions, the court was satisfied that there was a proper evidential basis for the conviction on count 2: namely, that the planning was deficient in that there was no Mobile Elevated Work Platform readily available for the entirety of the work. If the conviction was supported by the evidence, an appellant who sought to persuade the court that the jury had returned inconsistent verdicts must satisfy it that the two or in this case three verdicts could not stand together, in the sense that no reasonable jury which had applied its mind properly to the facts in the case could have arrived at the conclusion that they did, and that the verdicts were so inconsistent as to demand the interference by an appellate court. The burden of showing that a verdict could not stand was on the appellant.
The court noted that where a jury had been directed that the facts were for them and that they should consider the charges separately without any obligation to decide all counts in the same way, and that they should not convict unless they were sure, it would be anomalous to hold that they had returned irrational or inconsistent verdicts because they took a judge’s direction at face value and gave effect to it. As Lord Bingham CJ explained in R
R v. Durante [1972] 1 WLR 1612