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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 >> Polyflor Ltd v Health and Safety Executive  EWCA Crim 1522 (18 July 2014)
Cite as:  ICR 1142,  EWCA Crim 1522
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ON APPEAL FROM MANCHESTER CROWN COURT
His Honour Judge Hale
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE FOSKETT
HIS HONOUR JUDGE NEIL FORD QC, RECORDER OF BRISTOL
(sitting as an additional judge of the Court of Appeal Criminal Division)
| Polyflor Ltd
|Health and Safety Executive
Nigel Lawrence QC for the Respondent
Hearing date: 8 July 2014
Crown Copyright ©
Mr Justice Foskett:
"What happens is that vinyl in a solid strip emerges from the water buff and feeds automatically into the gap [in] the main machine, which is held between two moving conveyor belts from a bottom roller and fed upwards to a top roller, which feeds the vinyl into a granulator."
"... Blockages tend to occur at the upper roller. The machine stops, and the blockage is manually cleared. That may or may not require guards to be removed; it depends on the extent of the blockage. That process of unblocking the machine, whether the guards are on or off, itself causes no hazard as the power is switched off, and there are no dangerous parts in the machine such as blades, that when switched off can cause any risk whatsoever.
However, once unblocked and otherwise ready to be restarted, it is necessary to check that the two belts have not been forced out of alignment. Severe blockages might also require the engineer to slacken the tension of the belt at the top or the bottom roller, and the tension needs to be reapplied and the alignment also rechecked, so that the belts can be properly aligned in a way central to the rollers. Tensioning and the tracking of the belt is achieved by two sets of screw threads on bolts, one paired to the top roller and one paired to the bottom.
It is the process of tensioning and alignment that give rise to this prosecution. In 2007 an engineer, Mr. Manchester, was injured in the course of performing that task. Up until shortly after his accident in 2007, the two pairs of adjusting bolts were inaccessible without the removal of guards covering the rollers. As it is necessary to see the belts running to check the adjustment, the machine had to be operated without guards and without vinyl, but there was no way of adjusting the alignment at that stage, without removing the guards. The danger was the bottom roller, in that the point came where the two belts came together at a roller where there is a nip, and it is extremely easy for one's hand or arm to be drawn in under that roller and crushed."
"However, it did lead to a total reassessment of the machine. Mr. Manchester himself was asked to make the suggestions and he did, and most of them were substantially adopted. The main effect was to allow for adjustments to tracking and alignment to be achieved without removing any guards . Metal was cut away to allow access to the two pairs of tensioning bolts. Mesh viewing points were installed at the bottom, top and side of the parts of the belt, which allowed a degree of visibility as to the alignment of the belts.
One thing that was not done was to put a plastic screen where one is now to be found, so that an operator could in the area of the bottom roller, look straight down on to the belts. That has now been done. We have heard as yet no evidence why that was not done in 2007. It is said by the prosecution expert, Mr. Marr, that the view of the belt from above is the most helpful guide to adjusting the belts into alignment.
We have heard evidence that the operator's considered best view is available at the upper roller. It is normally a two man job to adjust this machine, one person being at the top of the machine by the top roller, adjusting that. They have a view on to the belt and they have a good view down the belt, according to the employees. So adjustment of the top roller by the man at the top on the viewing platform, and adjustment of the bottom set of pair of bolts by the person at the bottom, who has a less good view, because at the stage of Mr. Printy's accident, he could not look straight down on to the belt, but could look at it from the side."
"On the evening of Mr. Printy's accident the machine became blocked. The two craftsmen, Mr. Anderson and Mr. Bailey, attended and unblocked the machine. It was a bad blockage at the top roller. Vinyl had gone around the belt at the top roller, and had disturbed the top roller's alignment. Mr. Anderson [gave evidence that] the machine needed tracking after the blockage had been removed, because of the disturbance to the top roller. They had not finished tracking when the time pager brought Mr. Printy, the craftsman in charge that night, to the scene. Mr. Printy's evidence was that Mr. Bailey was saying he was having trouble tracking the bottom belt, and that he needed to move the bottom guard to track the bottom roller.
Mr. Printy then raised a permit to work, seeking permission to run the machine without guards for tracking . Mr. Sarros, the man in charge of the operation of the whole produce line that night, gave permission. The permit gave no safety advice, nor did it indicate what precautions, if any, were to be undertaken. The tracking with the guards off was substantially completed without incident. It was in reality a question of observing the running of the belt. However, there came a point when Mr. Printy says he heard rubbing of the belt, and wanted to see if he could find out where it was rubbing, the suggestion being that the distorted roller at the top had may be stretched the belt in some way. He says "I got a spanner. I sped up the belt. I put the spanner on the belt, pushing the spanner into the point where it was rubbing, and it caught and went in the machine." He could not let go of the spanner in time, as he thought he would be able to, and he broke his arm."
"When we were altering the position of the rollers which allows it to track over, it wasn't affecting the conveyor belt, so foolishly I sped the machine up and I could hear where it was rubbing, so I said to Pat, "Its rubbing here", so I've one of his spanners and I've tried to push at the point where I thought it was rubbing, and then my hand got caught in the machine."
"... I was trying to relieve the point where it was rubbing, and it got pulled ... I had hold of the spanner with the intention ...
A: ... if it gets pulled into the nip I can let go of it
Q: Right. Yes, exactly.
A: And before I knew it my hand got pulled in with the ... it all happened a bit quick because ...
Q: Looking back on it, you took the risk, didn't you? You thought that if it got pulled in you could just let go
A: Yes, I did, I took the risk, yes ..."
"I must turn now to Mr. Printy's accident. Does that provide evidence upon which a jury could convict? Mr. Printy frankly accepts that it was blasι on his part to do what he did in putting that spanner on to the belt. There was no need for the belt to be moving to see if it had stretched and therefore perhaps needed replacing. He accepted it was a silly thing for him to do, but equally as [the expert for the prosecution] said, at the end of the day if someone is going to do a silly thing, you cannot stop them."
"The conclusion which we draw is that Baker does apply to sections 2 and 3 of the HSWA. Foreseeability of risk (strictly foreseeability of danger) is indeed relevant to the question whether a risk to safety exists. That accords with the ordinary meaning of risk, as is demonstrated by the concept of a risk assessment, which is itself an exercise in foresight. Whether a material risk exists or does not is, in these cases, a jury question and the foreseeability (or lack of it) of some danger or injury is a part of the enquiry. None of this, however, means that in a prosecution under either section it is incumbent on the Crown to prove that the accident which occurred was foreseeable. That would convert the sections into ones creating offences of failing to take reasonable care to avoid a specific incident. It means no more than that the sections are concerned with exposure to risk of injury, and that the extent to which injury is foreseeable is part of the enquiry into the level of risk. The sections do not command an enquiry into the likelihood (or foreseeability) of the events which have in fact occurred. They command an enquiry into the possibility of injury. They are not limited, in the risks to which they apply, to risks which are obvious. They impose, in effect, a duty on employers to think deliberately about things which are not obvious."
"I have also got to bear in mind whether the risk is trivial or fanciful. What was the risk? The risk is that when operated without a guard, is there a risk of someone inserting something into the machine? It may be totally unwise, unnecessary and obviously stupid, but is there a risk? The only answer I can come to is yes. It may well be a risk that it is impossible to avoid, but that cannot stop the case at this stage. It was a risk, because it had happened with Mr. Manchester. It had happened with Mr. Printy. There is a risk that someone will be stupid enough or unwise enough to either put something in or allow some part of their clothing to fall into this machine when it is moving. Whether or not it is a risk that can be guarded against is another matter, and whether it is reasonably practicable other than by saying to people do not touch the machine when it is operating, because when it has to be operated without a guard, there is no need to touch any of the moving parts. The only parts that need to be touched are the screw threads, which are not moving in that context. What is required is observation, not adjustment of any of the moving belt or rollers."
"We have no hesitation in rejecting that argument. The risk of operatives, even experienced operatives, for some reason, good or bad, departing from de facto procedures in the vicinity of potentially dangerous machinery, especially in situations which are oft repeated, is a classic one. That is why an assessment of the risk ought to be made."
"The successor legislation to the 1961 Act, the Health and Safety at Work Act etc 1974 , was differently, and on its face more broadly, formulated. It required every employer by section 2(1) to ensure, so far as is reasonably practicable, the health, safety and welfare of all his employees, and by section 3(1) to conduct his undertaking in such a way that other persons were not thereby exposed to risks to their health or safety. The concept of safety was considered in this context in R v Chargot Ltd (trading as Contract Services)  1 WLR 1. Lord Hope of Craighead, with whose speech all other members of the House agreed, said that the legislation was "not contemplating risks that are trivial or fanciful", that the statutory framework was "intended to be a constructive one, not excessively burdensome", that the law "does not aim to create an environment that is entirely risk free" and that the word "risk" which the statute uses "is directed at situations where there is a material risk to health and safety, which any reasonable person would appreciate and take steps to guard against": see para 27."
" in my view, the foreseeability of a risk is distinct from the question whether it was "reasonably practicable" to avoid it. Diplock LJ explained the point in Taylor v Coalite Oils & Chemicals Ltd 3 KIR 315, 319320 in the passage quoted by Lord Mance JSC at para 71 above. It is only if a risk is reasonably foreseeable and it was reasonably foreseeable that an injury would be caused that it becomes necessary to consider whether it was reasonably practicable to avert the risk. Thus, for the purpose of deciding the issue of reasonable practicability, it is assumed that the risk was reasonably foreseeable."
"21. We acknowledge that the fact that an accident is unavoidable goes primarily to the reasonable practicability of the measures which a defendant might take, rather than the risk to safety. But that is not exclusively so. As we have said, that the risk is part of the everyday incidence of life goes to the issue as to whether an injured person was exposed to risk. Where the risk can truly be said to be part of the incidence of everyday life, it is less likely that the injured person could be said to have been exposed to risk by the conduct of the operations in question. The judge fairly put that to the jury in his summing-up: He said:
"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?"
22. Unless it can be said that this child was exposed to a real risk by the conduct of the school, no question of the reasonable practicability of measures designed to avoid that risk arises. No one in this case has suggested that every playground up and down the country for every 34 year old must have a flat surface and nothing from which an infant can choose to jump."