Appeal court makes important ruling on the concept of foreseeability

In the recent case of Winterton v R [06.11.2018], the Court of Appeal examined the judgment in Rose v R (Rev 1) [2017], in the context of a building site death. In doing so, the Court of Appeal made the important distinction between the level of risk that could have been ascertained through further examination and the level of risk that would have been obvious to a competent person.

Background

The case of Winterton stems from a fatal incident that occurred on a building site in Northamptonshire on 4 September 2014. Andrew Winterton was both the construction site manager and director of building contractor, Conquest Home LLP, who were developing nine new-build homes.

Shane Wilkinson was employed by Clearview Demolition who were subcontracted by Conquest Home LLP to excavate an L-shaped trench in front and to the side of one of the houses, for the laying of drainage pipes. On 4 September 2014, Mr. Wilkinson was standing either in the trench or at its edge when it collapsed, burying him in earth and rubble, causing him fatal injuries.

Mr. Winterton had overall responsibility for the health and safety on the site and was convicted after trial of the manslaughter of Mr. Wilkinson by gross negligence, along with other health and safety related offences. He was sentenced to a total of four years’ imprisonment.

As part of the initial trial, an employee of Anglian Water gave evidence about how he had witnessed the works during a site visit and had immediately noticed that they were unsafe.

The judge directed the jury to consider as part of their deliberations whether Mr. Winterton knew, or ought to have known that the way that the excavation of the trench was being carried out presented an obvious risk of death.

An appeal was lodged on the basis that the first instance judge had erred in law in directing the jury that they were entitled to consider what Mr. Winterton ought to have known, which appeared to go against the judgment of Rose.

Decision in the Court of Appeal

In the case of Rose, which related to a failure by an ophthalmologist to diagnose a condition from which a seven-year old child ultimately died, the Court of Appeal ruled that although further examination may have revealed a serious abnormality, there was not a serious and obvious risk of death if such an examination had not been carried out.

Taking a different stance in Winterton, the Court of Appeal ruled that the decision in Rose could not be applied, due to the foreseeability of risk. In other words, in Rose there was no obvious sign that the patient had a life-threatening condition, whereas in Winterton it was considered that the risk was obvious.

The Court of Appeal in Winterton ruled that the test of foreseeability should not be altered from a prospective test of foresight based on what was known at the time to a retrospective test which judges with hindsight.

As part of his appeal, Mr. Winterton made submissions that the decision in Rose should apply to his case on the basis that he had instructed a competent contractor to undertake the works and he had not seen the trench in an unsafe state. He submitted there was no serious and obvious risk of death that was presented to him during his site visits.

The Court of Appeal disagreed with this view and stated that the case of Rose differed in that it required an element of further investigation for the risk to be recognised. In Mr. Winterton’s case, however, it was suggested that it was unnecessary for him to carry out any particular inspection or investigation as the risk was obvious.

The Court of Appeal ruled that given that Mr. Winterton was on site daily he would have been sufficiently alerted to the significant risk of death arising especially given that the risk was obvious to an independent individual who attended the site on one occasion.

Commentary

This case serves as a warning to those seeking to rely on the judgment of Rose in relation to the issue of foreseeability.

It appears that, following the judgment in Winterton, the issue of foreseeability explored in Rose is very much specific to its own facts in circumstances whereby further medical or other investigations are required in order to recognise a risk.

In the context of a standard health and safety case, the law is clear following Winterton that a risk will be foreseeable if it poses an obvious danger which should have alerted any competent supervisor that the works were unsafe. When a risk is so obvious, it is open to the court to find on the evidence that either the defendant saw it and ignored it or failed to see it in circumstances where an objective observer would be entitled to say on the facts that the defendant should have identified the risk.

In light of this, supervisors and managers on site will need to be alert to the fact that it is not only their own perception of a foreseeable risk which will be relevant to the court, but the court can also consider whether a risk would have been foreseeable to an objective observer. This case emphasises the importance of third party audits and independent/objective reviews of site arrangements, which will give site management the comfort of a second pair of eyes looking for the identifiable risks on site.

Read other items in Health, Safety and Environment Brief - December 2018

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