Jersey Unreported Judgments

[2010]JRC181

ROYAL COURT

(Samedi Division)

5^th October 2010

The Attorney General

-v-

States Employment Board

Miss. S. Sharpe, Crown Advocate.

Advocate C. R. G. Davies for the States Employment Board.

JUDGMENT

THE commissioner:

1.        The States Employment Board ("the SEB") is charged with a breach of Article 3(1) of the Health and Safety at Work (Jersey) Law 1989 ("the Health and Safety Law") in that it is alleged it failed to provide a safe plant and system of work on the vessel known as the "Duke of Normandy" which resulted in an injury to one of its employees.

2.        Two issues of law arose prior to the trial which were dealt with at a pre-trial hearing before me on 23^rd September 2010, namely whether it was a defence that the SEB had delegated its functions to ensure the health, safety and well-being of States employees and whether certain prosecution evidence should be excluded under Article 76 of the Police Procedure and Criminal Evidence (Jersey) Law 2003.  A further issue as to whether the Health and Safety Inspectorate had jurisdiction to investigate an accident outside territorial waters was not pursued by the defence.

Delegation

3.        The SEB is a body corporate with perpetual succession as established under the provisions of the Employment of States of Jersey Employees (Jersey) Law 2005 ("the 2005 Law").  It may (a) sue and be sued in its corporate name; and (b) so far as is possible for a body corporate, exercise the rights, powers and privileges and incur the liabilities and obligations of a natural person of full age and capacity.  As its title implies, it was established to employ persons on behalf of the States of Jersey.  Indeed, under Article 12, no person or body other than the SEB may enter into contracts of employment with persons on behalf of the States of Jersey or administration of the States of Jersey.

4.        The functions of the SEB are set out in Article 8 of the 2005 Law, one of which is "to ensure the health, safety and well-being of States employees".  Under Article 9 it has all the powers necessary to perform its functions and under Article 10 it has the power by instrument in writing to delegate to any of its members or to the Chief Executive Officer any of its functions under the 2005 Law.  If a function has been delegated to the Chief Executive Officer he or she may, with the approval of the SEB, further delegate that function to another person or a member of a class of persons approved by the SEB.

5.        Pursuant to those provisions, the function of ensuring the health, safety and well-being of States employees and other persons visiting States buildings has been delegated by Act dated 12^th January 2009 "to the member of the Corporate Management Board with responsibility for a particular department or the relevant head of administration of the States in the case of a non-executive department".  The Corporate Management Board was established by the States.  It comprises senior officers of the States and its functions are to advise the Council of Ministers and to provide corporate leadership to staff.

6.        Article 3(1) of the Health and Safety Law is in the following terms:-

"It shall be the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all the employer's employees."

7.        Mrs Davies, on behalf of the SEB, contended that by delegating this function, the SEB had done everything reasonably practicable to ensure the health, safety and welfare at work of its employees.  Pursuant to the delegation, the function of ensuring the health, safety and welfare of States employees working on ships in Jersey is performed by the department with the necessary expertise, efficiency and resources to ensure that the function is properly discharged.  The SEB could not inspect or scrutinise every act undertaken or decision made in relation to the day to day running of the individual departments and in particular, could not be expected to approve or participate in the design of minor modifications to equipment on vessels.  The SEB employed an enormous variety of employees across diverse disciplines which it was simply not feasible for it to micro-manage. 

8.        The issue for me to determine therefore is whether delegation of this health and safety function by the SEB provides a defence to a charge under Article 3(1) of the Health and Safety Law. 

9.        In England and Wales, the primary legislation governing occupational health and safety in the workplace is the Health & Safety at Work Act 1974 ("the 1974 Act") on which the Health and Safety Law is modelled.  The wording of Section 2 of the 1974 Act regarding employers' duties is virtually identical to our Article 3.  It is therefore helpful to look to that jurisdiction for guidance.

10.      Quoting from Munkman on Employers' Liability 15^th Edition:-

"STATUTORY DUTY: HOW FAR ABSOLUTE?

5.61    Where a statute lays down a particular duty, that duty must be met and it is no defence to argue that performance of that duty was delegated to another.  Instead of this clear certainty, what often causes difficulty is ascertaining the precise nature of the duty, which is again a matter of construction and standards of reasonable practicability or suitability can qualify a duty.  The duty will generally specify the steps or procedures to be taken rather than the end result to be met.

Liability unaffected by delegation

5.62    If a statute places duties on an employer, and the latter delegates them to a subordinate or to an independent contractor - however competent - the employer remains liable if the duties are not performed.  It is, therefore, no defence to breach of statutory duty for an employer to engage an independent contractor to fulfil a duty imposed on the employer.  Delegation is only a defence if on the true construction of a statute the duty can be met simply by delegation and the employer has in fact delegated the work.  It is rare that health and safety legislation is construed in this way.  The basic principle is as articulated by Lord Atkin in Lochgelly Iron and Coal Co v McMullan [1934] AC 1 when he said, at 8-9:

'...the duty is imposed upon the employer, and it is irrelevant whether his servants had disregarded his instructions or whether he knew or not of the breach.'

---

Contravention of statute automatically establishes liability

5.68    In summary, whatever an Act requires to be done must be done, although it is always a matter of construction precisely what is the nature of the obligation.  It is in this sense that, subject to causation, every statutory duty is absolute.  As Lord Atkin said in Smith v Cammell Laird & Co Ltd [1940] AC 242 at 258:

'It is precisely in the absolute obligation imposed by statute to perform or forbear from performing a specified activity that a breach of statutory duty differs from the obligation imposed by common law, which is to take reasonable care to avoid injuring another.'

5.69    In this sense, a statutory duty is absolute even though it is qualified by the words 'as far as is reasonably practicable': for it is a question of fact whether a thing is reasonably practicable or not, and unless, on the facts, it is not reasonably practicable, the requirement must be carried out."

11.      Redgrave's Health and Safety 6^th Edition at paragraphs 3.17 to 3.19 has commentary to the same effect.  In R-v-Gateway (1997) IRLR 189 the English Court of Appeal rejected an argument that if the "directing mind" of the company had taken all reasonable precautions then there was no breach of the duty in Section 2; the offence could be committed even though senior management took all reasonable precautions, so that the offence was made out when, on the facts, there was a failure at store management level.

12.      In my judgement this interpretation of Section 2 the 1974 Act applies equally to Article 3 of the Health and Safety Law and thus I conclude that Article 3 of the Health and Safety Law creates absolute criminal liability subject only to the qualification of reasonable practicability.  The Health and Safety Law does not, on its true construction, provide that the duty imposed by Article 3 can be met by delegation and delegation by the SEB is not therefore a defence.

13.      Mrs Davies accepted, as indeed she must, that the SEB is both technically and legally the employer, but argued that the position of the SEB was to be distinguished from that of other employers, because of the power given to it under the 2005 Law to delegate, a power not given to other employers by law.  She acknowledged that if she is correct in her contentions, then responsibility for the health and safety of States employees was in the hands of persons who are not their employer and therefore not under the duty imposed on employers under the Health and Safety Law and who are not amenable to criminal sanction for breaches of such duties.  This outcome was not necessarily surprising, she submitted, in that civil servants in the United Kingdom employed directly by the Crown are in a similar position; the Crown can be censored but not prosecuted for a criminal offence.

14.      I agree with Mrs Sharpe that these contentions are misconceived.  The SEB is no different to any other body corporate established by law.  Being a creature of law, its functions and powers have to be set out in the law by which it is created.  By giving the SEB the power to delegate, the legislature was not intending to affect its potential liability as a legal person under the customary law or legislation; in particular to enable it, uniquely, to avoid by delegation the absolute criminal liability that all employers have under the Health and Safety Law.  Very clear wording would be required to achieve such an outcome and there is none.

15.      In conclusion the duty imposed upon the SEB by Article 3 of the Health and Safety Law is absolute even though it is qualified by the words "as far as reasonably practicable"; it is a question of fact for the Jurats to determine whether  a thing is reasonably practicable or not.  Even if the SEB by delegation took all reasonable precautions, the offence will be made out if there was a failure at departmental level.

Exclusion of evidence

16.      At the hearing, I rejected Mrs Davies' submissions that evidence of the accident in which the employee was injured should be excluded on the grounds that it was irrelevant and that the impact of such evidence would regardless be unfair in that it concerns an unpleasant accident which would undoubtedly weigh on the Court's mind.  The prosecution does not need to prove actual injury to convict an employer for being in breach of its duty under the Health and Safety Law; it only needs to show risk of injury (see R v Board of Trustees of the Science Museum (1993) 3 All ER 853) but I accepted Mrs Sharpe's submission that the accident is direct evidence that the plant and system were unsafe and is therefore admissible.  I further rejected the suggestion that the Jurats cannot be entrusted to deal properly and fairly with unpleasant evidence.

17.      The thrust of Mrs Davies' submission under this head related to the role of the Health and Safety Inspector, Mrs Lee Ann McGurty, who she submitted had no training or specific knowledge of maritime accidents.  The manner of her investigation and questioning and comments and opinions that she may have expressed may have tainted, it was suggested, the evidence that will be given by the prosecution witnesses.  Counsel agreed that I could not take this application further without hearing the evidence of Mrs McGurty (at least) on a voir dire.  This part of the defence application was therefore left over.

Authorities

Health and Safety at Work (Jersey) Law 1989.

Police Procedure and Criminal Evidence (Jersey) Law 2003.

Employment of States of Jersey Employees (Jersey) Law 2005.

Health & Safety at Work Act 1974.

Munkman on Employers' Liability 15^th Edition.

Redgrave's Health and Safety 6^th Edition.

R-v-Gateway (1997) IRLR 189.

R v Board of Trustees of the Science Museum (1993) 3 All ER 853.