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were killed.
Swan Hunter's safety officer knew of the fire risk connected with oxygen and prepared a
'
blue book' for Swan Hunter employees and provided the information to their
employees. However, they failed to distribute this information to Telemeter and other
contractors and/or the employees of those other contractors. Swan Hunter was
prosecuted and fined £3000, they appealed.
Conviction was upheld. Swan Hunter had a duty to ensure the health and safety of its
own employees by the provision of information. If the ignorance of another company’s
employees places its own employees at risk then it is the company’s duty, for the
protection of its own employees, to inform the employees of another of any special risks
within its knowledge.
R v Associated Octel Co Ltd [1996] – interpretation of Sec 3(1) of the Act8.10 Defences
available in criminal law Defences available in criminal health and safety and
manslaughter cases:
R v Associated Octel Co Ltd
(1996)
Meaning and extent of 'conduct of undertaking' as applied to Health and Safety at Work
Act
Associated Octel Co. Ltd. ("Octel") operates a large chemical plant at Ellesmere Port. On
25
June 1990 there was an accident at the chlorine works. The plant was shut down for
its annual maintenance and a small firm of specialist contractors called Resin Glass
Products Ltd ("RGP") were engaged in repairing the lining of a tank. Mr. Cuthbert, an
employee of RGP, was working in the tank by the light of an electric light bulb attached
to a lead. After grinding the damaged area of the lining, he had to clean it down with
acetone before applying a fibreglass matting patch with resin. He had his supply of
acetone in an old paint bucket which he had found in a refuse bin. While he was
applying the acetone with a brush, the light bulb broke. Some of the liquid had probably
dripped onto it. Acetone is volatile and gives off highly inflammable vapour. As Mr.
Cuthbert was using an open bucket, there was a good deal of vapour in the tank. The
broken bulb caused a flash fire in which Mr. Cuthbert was badly burned.
RGP Ltd was convicted of an offence under section 2 of the 1974 Act, and Octel Ltd of an
offence under section 3. Octel Ltd appealed to the Court of Appeal. It was argued on
their behalf that section 3 did not involve liability for the actions of independent
contractors.
The appeal failed. The court ruled that it was a question of fact in each case whether an
activity which caused a risk to the health and safety of persons (other than employees)
amounted to the conduct of an undertaking. The term “undertaking” was taken as
meaning “enterprise” or “business” and the cleaning, maintenance or repair of plant,
machinery or buildings necessary for carrying on the business was part of the
undertaking (whether carried out by the client’s employees or by an independent
contractor). Therefore Octel Ltd was liable under section 3(1).
