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When is a risk “material”?

A recent appeal casts further light by what standards must be achieved in health & safety and when a risk can be considered to be “material” requiring steps to be in place to prevent harm.

The current position is that the law requires employers to put reasonable precautions in place to protect employees and third parties from risks they are exposed to as part of their undertaking.

However, this is qualified by the fact that a risk must be “material” in order for such controls to be required. Material means more than trivial or fanciful, and has also been held to exclude risks that arise in the course of everyday life. A good example is the case of R v Porter, in which a Headmaster was prosecuted when a child fell down a staircase in a school, he was convicted but successfully appealed on the grounds that the risk was an incidence of everyday life and was therefore not material.

Background to the case

The appellant was convicted of an offence under section 3 of the Health and Safety at Work etc. Act 1974 (the safety duty to third parties mentioned above) and appealed on the basis that the risk was not material. The fine was £70,000 with £30,000 in costs.

The facts are that the operator of an airport on private land engaged the appellant as a contractor to provide specialist airport traffic management design advice.

The appellant produced design work in relation to various different proposals for redevelopment of the airport over a number of years. The prosecution related to specific changes in pedestrian and vehicular arrangements made following the terrorist attack on Glasgow Airport in June 2007.

Parts of the appellant’s re-design included two crossing points on the main access road. These were relocated further along the access road after it became apparent that their position, close to the access barrier, caused traffic to queue on to a nearby roundabout.

The crossing involved in the incident had black and white lines, a dropped kerb and tactile paving. It had guardrails, which are not required for a regulated zebra crossing, but which aim to prevent corner cutting by pedestrians on to the crossing. There was a gap between the end of those rails and the start of the black and white lines.

Tragically a pedestrian was run over by an HGV on the crossing, after walking along the footpath behind the fencing. 

The legal proceedings

Both defendants argued that there was no case to answer in the lower Court, but the Judge felt that these issues were best left to a jury. In health & safety prosecutions it is for the prosecution to prove existence of a risk of harm, then for the defendant to demonstrate that reasonably practicable measures were in place to prevent any injury as a result of the risk.

The appeal argued that the Judge was wrong to refuse the submission of no case to answer as there was insufficient evidence of material risk. 

The trial judge had rejected this argument because he felt that a properly directed and reasonable jury could conclude there was a material risk at the crossing.

The principal argument made by the appellant on appeal was that pedestrians crossing the road and colliding with vehicles is an incidence of everyday life that is tolerated by society; and in the absence of evidence that this ordinary risk was increased for a particular reason (relating to location for example) this could not be a material risk for the purposes of section 3. 

The Court of Appeal’s decision

The prosecution case was that the crossing was constructed in such a way that people on the crossing could not be seen by the lorries that used it on a regular basis, and that simple steps could have reduced or eliminated this risk. In particular, they criticised the width of the gap between the railings and the crossing and the absence of give way markings that meant that pedestrians could enter the crossing at an unprotected point where they could not be seen by a lorry as it set off.

The Court rejected the appeal on the basis that whilst there were many similar crossings in society, the risk related to this crossing and its design and whether that exposed pedestrians to a risk. They felt that allowing a defendant to point to similar risks elsewhere as a defence would be a “race to the bottom” and would undermine safety standards.

What does this mean for defendants?

This is a reminder that the duty is on a defendant to demonstrate that it has satisfied its duties under health & safety , and that this is often against the backdrop of a serious incident that leads to hindsight being applied to seemingly innocuous historical decisions. Persuading a jury that a risk is not material against such a backdrop is extremely difficult.

After the Court of Appeal expressly approved that such decisions are best left to a jury, the key issue for defendants to focus on must be on the Judge’s directions to ensure they give a fair reflection of what a material risk is in comprehensible language. 

A key issue that has not been fully explored in this case is how far such additional burdens can be placed on an employer to go beyond the safety standards applying in society at large. It is also important to be able to point to evidence to support arguments that a risk is tolerable (for example, HSE guidance suggests a risk is tolerable if the risk is less than 1 in a million). In this case this would have included evidence of usage without incident, of pedestrian numbers and vehicle numbers and evidence of countervailing risks were alternative safeguards to be introduced. 

If you have any questions or would like more information, please contact one of our health & safety specialists below.

This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

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Steffan Groch

Partner and Head of Regulatory - Head of Sectors

I head up DWF's national Regulatory team as well as leading the firm’s ‘go to market’ sector expertise. I am also Chair of the UK Health and Safety Lawyers Association.

Paul Matthews

Partner - Head of Regulatory (Yorkshire and North East)

I am a Partner in the Regulatory team and a corporate defence specialist who provides up-front regulatory compliance advice and representation to businesses and senior managers in relation to investigations and prosecutions by regulatory bodies.