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England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Porter, R. v  EWCA Crim 1271 (19 May 2008)
Cite as:  ICR 1259,  EWCA Crim 1271
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B e f o r e :
MR JUSTICE BEATSON
SIR RICHARD CURTIS
|R E G I N A|
|- v -|
|JAMES GODFREY JOSEPH PORTER|
Wordwave International Ltd (a Merrill Communications Company)
190 Fleet Street, London EC4
Telephone 020-7421 4040
(Official Shorthand Writers to the Court)
appeared on behalf of the Appellant
Mr T Horlock QC and Mr N D Jones appeared on behalf of the Crown
Crown Copyright ©
LORD JUSTICE MOSES:
"(1) 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."
The Act creates offences for breach of that duty and further provides that the burden is upon a defendant to establish the limits of what is practicable. Where a provision imposes a duty to ensure safety so far as 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 (section 40).
"The flight of steps to which children aged 3 and 4 years could gain unsupervised access during break times fell within the ambit of the defendant's conduct of his undertaking."
It was also alleged that the appellant exposed such a child to a risk by reason of falling from the flight of steps. The prosecution alleged that they could support their case by reason of the appellant designating the steps as being out of bounds. In fact, the evidence subsequently showed that that was in order to segregate one group of children from another. The younger children (amongst whom Kian could be numbered) wished to be nearer a teacher and the toilets.
"What you must decide is whether there was an unacceptable risk. The trivial risks of everyday life are not unacceptable. They are simply a fact of life, are they not?"