QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|PETER GRAHAM SMITH||(CLAIMANT)|
|GATWICK AIRPORT LIMITED||(DEFENDANT)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MR G FORLIN (instructed by BAA plc Corporate Office, Wilton Road, London, SW1V 1LQ) appeared on behalf of the DEFENDANT
Crown Copyright ©
"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 to their health or safety."
"In any proceedings for an offence under any of the relevant statutory provisions consisting of a failure to comply with a duty or requirement to do something ... so far as is reasonably practicable ... it shall be for the accused to prove ... that it was ... not reasonably practicable to do more than was in fact done to satisfy the duty or requirement, or that there was no better practicable means than was in fact used to satisfy the duty or requirement."
"I do however concur with the defence in so far as it is said that the Crown have not shown that persons not in the defendant's employment, more particularly in this case Mrs Patel, have been exposed to a possibility of danger by virtue of the conduct of their undertaking, for I have heard no evidence as to the actual cause of the door closing immediately before Mrs Patel suffered her most serious injury, nor that the protruding screw actually caused the injury in question. What the Crown seeks, as the defence submit, is essentially to say that the thing speaks for itself, and that simply is not good enough in a criminal case. They say that when Mrs Patel put her hand up instinctively as the door began to close for whatever reason, because I have heard no evidence from the Crown as to why the door actually began to close, her ring caught in a protruding screw injuring her finger, and there is no evidence to support that nor that a screw protruding an estimated 3mm would have exposed the public to risk.
"Even if I am wrong on those points and there is evidence of exposure to risk then I say this; were I to hear nothing more from the defence then the prosecution evidence, taken at its highest, is such that a tribunal properly directed could not properly convict upon it. Accordingly I uphold the defendant company's submission."
In paragraph 6 of the case stated, the district judge stated as follows:
"I was of opinion that there was no evidence to show that Gatwick Airport Limited had failed in its duty to conduct its undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in its employment who may be affected thereby were not thereby exposed to risks to their health or safety. I came to that conclusion for the following reasons. First there was no evidence before me other than assumption as to the cause of the injury to Mrs Patel. Second, there was no evidence, only assumptions by the witnesses, as to the reason for the door closing. Third, there was no evidence before me that the screw had been protruding immediately before or at the time of the injury being caused to Mrs Patel. Whilst it is clear that proof of injury and its cause is not crucial to a case of this nature I did not consider it open to me without more to import a risk from the mere closing of a door or the protrusion, after the event, by approximately 3mm of a bent screw or indeed from those two facts coupled together. Accordingly I dismissed the charge against the defendant company."
"(a) whether I was correct in law to uphold the submission of no case to answer at the conclusion of the prosecution case on the basis that there was no evidence of exposure to risk; and
(b) if the answer to the first question is in the negative whether I was correct in dismissing the charge at the conclusion of the prosecution case, believing that I need not hear the evidence for the defence because the prosecution evidence was such that I could not be satisfied that the Crown's case was proved beyond reasonable doubt."
"While exiting the Customs Hall on an invalid buggy Mrs Patel pushed at a door, which resulted in her snagging her finger on something and injuring her finger."
"I agree with the Crown that it matters not that there is a conflict whether the driver of the buggy in which Mrs Patel was being conveyed stopped or stood up when the door began to close."
I agree that any conflict on that point does not go to the heart of the issue in this case. So far as the second of the alleged inconsistencies is concerned, there is no suggestion, nor likelihood, that Mrs Puddick was present on any of the other occasions when Mr Hennessy warned Mrs Patel, apart from the warning about which she gave evidence. It follows that there was no real issue about the reliability of the evidence given by the witnesses.
"What do you say? ... What about costs? I am absolutely staggered at what it is that you are seeking. I have to say I only looked at it this morning and I nearly fell off my chair, but perhaps that was an intemperate reaction."
The exchange continues:
"LORD JUSTICE TUCKEY: This is a point of very considerable importance to the Health and Safety Act in which no expense has been spared. Why should Mr Williams have to pay anything for your success?
MR NSUGBE: Well, my Lord, it was a very important question so far as the Health and Safety Executive are concerned.
LORD JUSTICE TUCKEY: It was bound to come from someone, and it had already come from somewhere else."
Then there is an issue about private funding or public funding, which does not apply here, my Lord. Then it goes on over the page:
"LORD JUSTICE TUCKEY: No one doubts it is an important point from the Health and Safety Act point of view. Anyway, I think I have the drift of your submissions ... Thank you very much. Mr Williams, we need not trouble you for about the application that is made against you ...."
Then there is the issue of public funding, my Lord, which is not relevant here. My Lord, you will see it is the RCDO, which is the old legal aid order.
"The Health and Safety Executive make an application for costs before the appellant become legally aided. They do so in the sum of over £50,000. That application is refused. We do not think, although they have been successful, that it would be reasonable to expect this appellant to bear costs of that or indeed any order in this case. This was obviously a matter which the Health and Safety Executive have considerable interest in. To that end they instructed two leading counsel, I think I am right in saying, and a Professor to advise them on the European Directive and so on and so forth. That was all no doubt money well spent in the wider interests, but it is not a cost which we think it would be fair for this appellant to have to bear ... We think he should nevertheless, from the financial information we have got, make some contribution towards his costs in this court and we assess that contribution in the sum of £5,000.
"The appellant, David Janway Davies, was convicted on 7th September 2001 of an offence ... he was fined £15,000 and ordered to pay £22,544,32p prosecution costs."
"I think I should be entirely clear with your Lordships. At the trial below he had the benefit of an insurance policy so they founded his own legal expenses."
"An appeal lies to the House of Lords only with the leave of the court below or of the House. In criminal causes, an appeal lies to the House of Lords at the instance of the defendant or prosecutor."
If my Lordship just scans his eye down the page. Then, my Lord, if you look at the bottom of the page, if you would be so kind:
"Certificate of a Point of Law
"Leave to appeal in a criminal cause or matter will only be granted if it is certified by the court below that a point of law of general public importance is involved in the decision of that court, and if it appears to that court or to the House that the point is one that ought to be considered by the House."
"Application for leave to appeal to the House of Lords must first be made to the court below. Such application must be made within a period of fourteen days beginning with the date of the decision of the court below."
That would be today, my Lord.