Kent County Council v Health and Safety Executive [2004] EWHC 2861 (Admin)

Case No CO/4764/2004[2004] EWHC 2861 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Tuesday, 23rd November 2004
Strand
London WC2
B E F O R E:
MR JUSTICE COLLINS
Between
KENT COUNTY COUNCILClaimant-v-
Between
HEALTH AND SAFETY EXECUTIVEDefendant
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR D MATOVU (instructed by Kent County Council Legal Services) appeared for CLAIMANTMR R MATTHEWS (instructed by asb law, Maidstone, Kent ME15 6XU) appeared for DEFENDANT
J U D G M E N T
[1]MR JUSTICE COLLINS: This is in form an application to remit a Case Stated to the magistrates so that they can expand upon it by referring to, or by annexing to it, the evidence which they heard which led them to make particular findings of fact. The reason is that the appellants, Kent County Council, assert that some crucial findings of fact were not open to the magistrates on the evidence which they had heard. Having read the material, which included the evidence that the appellants wanted to be annexed to the case, formed the view that it would be sensible, if possible, to dispose of the appeal without further cost. It would be possible for me to have done that, but only with the consent of the parties.[2]Mr Matthews, for the Health and Safety Executive, was, perhaps for obvious reasons, happy to accept that course. Mr Matovu was less willing initially, again for perfectly proper and obvious reasons. We went through, however, in some detail and in depth, the matters upon which he wished to rely and this enabled both him and me to appreciate what the real issues were going to be, and that indeed it was sensible and appropriate that I should dispose of the whole matter in this judgment and this afternoon.[3]The form of it will be for me to give judgment on this application, because I am against the appellants, and then for the case to be withdrawn. That is the tidy and sensible way of procedurally disposing of the matter. I shall give reasons why I have decided that the case cannot succeed, even on the basis of the extra material which the appellants wish to put before the court.[4]I can do it relatively briefly because there is a transcript of the hearing and there was detailed discussion, and most of the points which are relevant were aired in the course of that discussion. The case Stated arises out of a conviction by magistrates sitting at Sevenoaks' Magistrates Court of Kent County Council for an offence contrary to regulation 11(1)(a) of the Provision and use of Work Equipment Regulations 1998. The allegation was that on 27th August 2002 as employers they had failed to prevent access to dangerous parts of machinery by an employee, Mr Jack Lane, who was injured when he came into contact with the power take-off shaft of a post hole borer.[5]The Regulation in question, so far as material, reads as follows: 11(1) Every employer shall ensure that measures are taken in accordance with paragraph (2) which are effective-(a) to prevent access to any dangerous part of machinery or to any rotating stock-bar; or(b) part of machinery or rotating stock-bar before any part of a person enters a danger zone. Paragraph 2 reads as follows: 6. "The measures required by paragraph (1) shall consist of- (a) the provision of fixed guards enclosing every dangerous part or rotating stock-bar where and to the extent that it is practicable to do so, but where or to the extent that it is not, then (b) the provision of other guards or protection devices where and to the extent that it is practicable to do so, but where or to the extent that it is not, then(c) the provision of jigs, holders, push-sticks or similar protection appliances used in conjunction with the machinery where and to the extent that it is practicable to do so, but where or to the extent that it is not, then(d) the provision of information, instruction, training and supervision."[6]In the context of this case there was no PTO shaft guard and it is accepted that a guard could have been used. It was entirely practical to enclose the rotating stock-bar with a guard, but the only issue was whether such a guard was provided. What the magistrates accepted as the key finding, or the key matter for them to consider, was whether the guard was available. It was further limited, in the view of the Justices, to whether a guard for the power take-off shaft was available at the depot. The reason why that was important was because the accident occurred when Mr Lane was using an auger attached to a tractor to drill a hole to place football goalposts into the ground. While he was doing that he got his clothing caught up in the rotating part and suffered some injury. Fortunately it seems it was not at all a serious injury.[7]It was that lack of a guard which was relied on in making the charge. There is no question but that the auger, as it is described, should have had a guard attached to it, and equally there was a guard which came with it when it was acquired by the appellant council. Unfortunately there is equally no doubt that that guard was not taken from the depot to be available, or to be provided, when it was used by Mr Lane. The County Council had provided information and training in relation to the use of guards such as this. In fact there was evidence that the relevant machinery officer, a Mr Slattery, had on 25th July 2002, and so about a month or so before the accident, sent round a memorandum which specifically reminded staff that the PTO shafts, which is what this was, should always be guarded. The memorandum ended in these words:
"Under no circumstance should a PTO be used without guards on secure fittings. If any person is found using an unguarded PTO immediate disciplinary action will occur as that is deemed as gross misconduct."
[8]Regulation 11(1)(a) is breached if a guard is not provided and even if it is provided if such information, instruction, training and supervision, as was necessary, was not provided. As a matter of reality it is difficult to imagine that a prosecution would ever result based purely on a failure to provide the necessary information, instruction etc., because if the machine in question was guarded then no issue about that would be likely to arise. Of course it is theoretically possible that that situation could arise.[9]It is important to note that both elements of Regulation 11(2) have to be satisfied in order that there is compliance. The offence lies in not providing the necessary guard. That was, as I say, interpreted by the magistrates as a duty to make a guard available. Mr Matovu, who appeared for the council below, informs me that the whole case was approached on the basis that the crucial question was whether the guard was available at the depot. That it was suggested would have been sufficient to constitute compliance with the regulation.[10]As I indicated to Mr Matovu in the course of argument, I am very far from persuaded that that indeed was right. The duty is to provide and that is, on the face of it, an absolute duty and is not complied with, particularly when the operation is carried out away from the depot, by having a guard at the depot. It seems to me that even if it were right that something less than actually ensuring it was on the dangerous part was sufficient, it would not be sufficient to have it away from the site. However, I want to make it clear that I have not heard any detailed argument on that point, but I would not like it to be assumed that I accept that the test which the Justices were persuaded to apply was the correct test. However, that is by the way in the context of the manner in which this case has been stated and the questions which have been posed.[11]It is, I think, helpful to start with the questions because they set the context in which this application is made. The questions are these:(1) In the light of the evidence adduced by the Prosecution at the end of their case were the Justices correct in rejecting the submission of no case to answer;(2) Was there evidence to support the justices’ finding that there was no PTO shaft guard for the auger available prior to the accident;(3) Was there evidence to support the justices’ findings that:-a. A. though all those directly involved in the accident had undertaken relevant training but the outcome of that training was confused;b. B. risk assessments had been done but none of the witnesses understood the relevance?[12]The important and major issue relates to the provision or, as the Justices put it, availability of the guard. The findings that they made in relation to that are set out in paragraphs 2(vi) and 2(vii) of the case.

(v) which reads:

"The PTO shaft, to which an auger was attached, had been acquired by the Appellant in 1979; (vi) The PTO shaft came supplied with a guard. However, on the day of the accident, no guard was fitted to the shaft."
[13]They then go on to explain why they reached that conclusion and to identify the evidence upon which they rely. However, Mr Matovu inevitably has accepted that that finding, namely that no guard was fitted to the shaft on the day of the accident, is one which the Justices were quite plainly entitled to reach. The evidence was that there was no guard when the accident occurred and there was clear evidence that it had been taken from the depot with no guard upon it. Whether or not that was a deliberate breach of instructions by all those concerned or not is nothing to the point. That finding of fact is unimpeachable. Then (vii) reads:
"In addition to no guard being fitted to the PTO shaft, no such guard was available in the depot."
[14]That is the finding which Mr Matovu particularly attacks. The Justices rely, they say, upon the evidence of three witnesses. First, Mr John Glozier, a groundsman, who stated that he went out to purchase a PTO guard immediately after the accident. Secondly, Mr Ray West who stated that he knew from previous times that there was no PTO shaft guard and after the accident he was asked to check the depot and found there was none. Finally, Colin Slattery, a machinery officer, who was a defence witness and was responsible for the memorandum, to which I already referred, who stated the search of the depot had been done and he imagined the HSE had been notified that a correct guard had not been found.[15]Mr Matovu’s real concern is that the witnesses were, on the face of it, and indeed inevitably, in breach of their duties in not ensuring that this auger was used with a guard upon it. The unfortunate Mr Lane was not the man responsible for making that decision. It may be that it could be argued that he acquiesced in that decision but it was the chargehand, and those above him, who should have borne the real responsibility. Mr Matovu submits that there was no direct evidence before the Justices. No one was asked the specific question: "Was there a guard available at the depot?" and so at best the Justices had to draw an inference.[16]In the light of the criminal standard of proof, he submitted that it was not appropriate, or, in law, possible, for the Justices to have drawn the inference that they did. I have, of course, considered this and indeed Mr Matovu and I went through the evidence upon which they relied, and the evidence which he wished to adduce, to show that their reliance was not appropriate. Mr Glozier quite plainly did, shortly after the accident, seek to obtain the necessary guards. He actually got the wrong ones initially, but that was nothing to the point. Mr West confirmed that he had signed the necessary document to enable Mr Glozier to get the new guard. He said too that he had been asked by Mr Slattery to make sure that guards were on the other machines and in checking that the PTO was on the other machine he found no PTO guard for this particular auger. That admittedly was shortly after the accident had occurred.[17]Mr Judge had been responsible for fitting the auger before it left the depot. He said that he could not remember whether the shaft was guarded or not, but that when he got to the field he noticed the guard was not there. It is fanciful to suggest that from that any conclusion could have been drawn other than it was not on when it left the depot. The only question, therefore, was whether the Justices were entitled to find that it was not available at the depot.[18]It seems to me that it is quite impossible to say that the Justices were not entitled to conclude, on the material which they heard, that it was not available at the depot at the material time. Quite what had happened to it no one knows.[19]Mr Matovu submits that the Justices have omitted to consider properly that the employees were in dereliction of duty, but there are, as I have ventured to suggest to him in argument, derelictions of a greater or lesser degree.[20]It is one thing to fail to provide a guard knowing that that should not be done where such a guard is available and it would be relatively easy to fix it, but it is another to fail to put on a guard where none is actually available. Of course the auger should not have been used. Of course the guard should have been obtained before it was used, but it is perhaps easier to understand the mental attitude of those who thought that it was desirable to get on with the job rather than waste time getting the necessary guards. It was clearly a wrong and unlawful approach, but perhaps a less reprehensible approach than that indicated in the former scenario.[21]Be that as it may, the fact that there was a dereliction of duty by the employees does not mean that the Justices were not entitled to find, as a fact, that a guard was not available, and thus was not provided if that was indeed the test that they were applying. I should say clearly that test which may well have been too favourable to the defendants. Accordingly, in my judgment there is no conceivable prospect of this appeal succeeding even if the material, which the appellant wishes to be annexed to it, were so annexed.[22]Purely to deal with the application, as it were, in the abstract there is, in my view, some force in the complaint that where as here challenges are made to the lawfulness of findings of fact, then the evidence which is material should be adduced because the Justices have said that they found the facts in reliance on particular aspects of witnesses' evidence. It is open, in those circumstances, and should be open, to an appellant to show that on the whole of the evidence those findings were not sustainable. As it happens in this case that could not be achieved because on the whole of the evidence it is clear that those findings were sustainable. That being so it is unnecessary to consider the training point because if the guard was not provided then however well trained the individuals concerned were matters not.[23]There was a further finding of fact, that those directly involved in the incident had undertaken relevant training but the outcome of the training was confused. There is, I am bound to say, a somewhat stronger ground for attacking that particular finding. In the circumstances, however, it is unnecessary and undesirable for me to go into the details of that. Suffice it to say that even if Mr Matovu succeeded, in due course, in showing that that particular conclusion was one to which the Justices were not entitled to come (and I am far from saying that that is something he would succeed in doing) nonetheless it would not avail his clients, in the circumstances of this case, because of the inevitable finding that they did not provide the necessary guard. It is no doubt galling to employers, in particular to good employers (and I have no reason to doubt that the County Council is a good employer and makes every effort to try to ensure that the law is not broken) to find that largely because of the failures by those who ought to deal with the matter, namely the foreman or the chargehands, there has been a breach of the law. But I am afraid that that is often the situation with employers of large work forces (indeed sometimes not so large) That sort of matter can amount to mitigation. Even if it can be shown that all reasonable steps have been taken but the system, for whatever reason, failed to deliver the right result, that cannot constitute a defence to a charge such as this where an absolute offence is created.[24]That being so, as I say, I take the view that there is absolutely no point in spending further money on this appeal and that view has very properly been accepted by Mr Matovu and those instructing him. I am entirely satisfied that that is a very sensible approach that has been taken and will save the expenditure of yet more money on a fruitless attempt to overturn this conviction.[25]In those circumstances what I propose to do is formally dismiss this application whereupon I will invite Mr Matovu to withdraw the Case Stated and that will be the end of it.[26]MR MATOVU: I do that.[27]MR JUSTICE COLLINS: In those circumstances the court will dispose of this simply on the basis that this application is refused and the Case Stated is withdrawn. What about costs?[28]MR MATTHEWS: I am afraid there has not been served a bill of costs. Can I ask for an assessment of costs?

MR JUSTICE COLLINS: I do not think you can resist costs?

[30]MR MATOVU: I respectfully would resist. This was only listed for an application.

MR JUSTICE COLLINS: I have saved you a lot of money by dealing with it in this way?

[32]MR MATOVU: I appreciate your Lordship has invited us to deal with that and I have acceded to that. Can I show you a letter? I do not know whether your Lordship knows how long this matter was listed for today.[33]MR JUSTICE COLLINS: It was listed for a short time. I got in advance a letter that it might well last longer. It was originally listed for half an hour and put up to two and a half hours. That was the information I had. I know the Justices were not going to attend. The court estimate was originally half an hour but there was a call from Mr Matovu’s solicitors that more time may be needed then two and a half hours was indicated.[34]MR MATTHEWS: That may have come from my clerk having spoken to Mr Matovu.

MR JUSTICE COLLINS: This Court was warned it might need up to two half and a half hours.

[36]MR MATOVU: I just put it this way, that it was originally an application which we were informed that the other side were not going to be attending upon.

MR JUSTICE COLLINS: The HSE were always likely to attend, I would have thought.

[38]MR MATOVU: I thought they were.[39]MR MATTHEWS: I checked that position yesterday. My learned friend intimated he believed that to be the position yesterday. I checked with my instructing solicitor whose recollection was quite the reverse.

MR JUSTICE COLLINS: I think you are muddling the HSE up.

[41]MR MATOVU: I am told they just never came back to us on it.

MR JUSTICE COLLINS: They have attended and they properly attended.

[43]MR MATOVU: That is all I can say.[44]MR JUSTICE COLLINS: I am afraid you must pay their costs to be subject to detailed assessment, if not agreed. I hope you will be able to agree them. They are usually not unreasonable.[45]MR MATOVU: I am sure.

MR JUSTICE COLLINS: Thank you both.