When an accident at work leads to a court case, the burden of proof that it is not responsible (on the balance of probabilities) for the injury lies with the employer, but only after the claimant has shown that the employer exposed them to the risk which led to the injury.
Once this is established, the employer must show that it was not reasonably practicable to do more than was done to reduce the risk or that there were no other practicable means of so doing.
Recently, the Court of Appeal heard two cases involving workplace deaths that addressed the issue of how the burden of proof is satisfied. In one case a worker was killed when attempting to unblock a machine and in the other a worker was killed when collecting litter at the side of a road.
The issue as regards the burden of proof turned on the question of whether it was necessary for the employer to be able to foresee the risk of accident. The Court decided that the duty of the employer is to enquire into the possibility of injury and this is not limited to obvious risks. The Court was adamant that the employer’s obligations extend to thinking deliberately about things that are not obvious.
Causation is not the core of the issue: that is a matter of fact to be determined by the judge. Instead, the employer’s failure to take all reasonably practicable steps to ensure the safety of employees with regard to the risk will be the main factor to consider.
“The decisions somewhat weaken the ability of defendant employers to make a successful defence against claims,” says <<CONTACT DETAILS>>. “A robust health and safety policy is a must and should be backed up with appropriate training and terms in employee contracts. We can advise you on your legal obligations.”
Partner Note
R v Tangerine Confectionery and Veolia [2011] EWCA Crim 2015.