Select Committee on Home Affairs and Work and Pensions First Report


Law of negligence

95. The draft Bill proposes that the offence should be based on the gross breach of a duty of care owed by the organisation to the deceased. The concept of a "duty of care" has been developed by the civil courts in the context of the law of negligence. The question of whether a "duty of care" does exist is generally determined by reference to three broad criteria: (a) is the damage foreseeable? (b) is the relationship between the defendant and victim sufficiently proximate? (c) is it fair just and reasonable to impose such a duty?

96. The civil law concept of a "duty of care" is expressly adopted in the draft Bill which states that a "relevant duty of care" … means a duty owed under the law of negligence".[112] The Home Office justifies the use of this concept by arguing that duties owed under the law of negligence are the basis of the current common law manslaughter offence:

    "We think this provides a sensible approach because organisations will be clear that the new offence does not apply in wider circumstances than the current offence of gross negligence manslaughter, to which all companies and other corporate bodies are already subject."[113]

97. In oral evidence, a legal adviser at the Home Office added:

    "We were very keen to have an offence which did not impose any new standards. We do not want to rewrite the circumstances when companies ought to be taking action to safeguard people's safety, and the duty of care is a mechanism which defines that relationship and the company knows that if it could be sued for something in negligence it can be prosecuted under this offence".[114]

98. Some witnesses welcomed this approach.[115] For example. Eversheds solicitors argued that it would provide "a greater degree of consistency".[116] However, others questioned whether it was appropriate to use a civil law concept as the basis for a criminal offence.[117] The Law Society argued:

    "(it) is problematic because it is based on a dividing line between those bodies that can be sued in negligence in domestic law and those that are exempt on public policy grounds. We believe that this dividing line has little meaning or justification in domestic law terms in relation to a criminal penalty".[118]

99. Moreover, some of those who submitted evidence to us were concerned by the fact that there could be cases where a death would occur as a result of a failure by senior managers which fell far below what could reasonably be expected in the circumstances and yet those circumstances would not result in a civil law "duty of care". The Centre for Corporate Accountability pointed out that this might apply in particular to cases of deaths caused by public bodies:

    "When civil law courts rule on whether or not a 'duty of care' relationship is created between a public body and a person who is suing for compensation, they quite understandably have taken into account public policy factors that relate to the fact that it is a claim for compensation. The courts have therefore given consideration to, for example, whether it is appropriate, in time and expense, for a public body to have to defend hundreds or thousands of compensation claims and then have to pay out damages. As a result of these reasons - which are distinctive to civil liability issues - the courts have stated that certain public body activities do not raise 'duty of care' relationships".[119]

100. The Centre for Corporate Accountability gave an example of a Court of Appeal ruling in the case of Wacker[120] - the prosecution of a driver for the manslaughter of 58 immigrants who suffocated to death in the back of his lorry while being illegally smuggled into the country. In the original case, the driver's defence lawyer had argued that the driver did not owe a duty of care to the immigrants because they were part of a joint criminal act and in these circumstances under the civil law there is no duty of care (a doctrine called ex turpi causa non oritur actio (no lawsuit can arise from an illegal cause)). However, the Court of Appeal rejected this defence, arguing that the civil law and criminal law had different objectives and so concepts such as duty of care needed to be adapted to the different areas of law in which they were being applied. Under the Bill such an approach cannot be adopted because it is clear that whether a duty of care exists is a matter for the civil law of negligence.

101. Other witnesses argued more simply that whether a duty of care exists under the law of negligence is a highly complicated legal issue and that this was adding an unnecessary complexity to the Bill. Mr Antoniw from Thompsons Solicitors argued "the danger of bringing in the duty of care is that it provides ample opportunity for all the legalistic pedantry that might subsequently arise in court cases".[121]

102. It was suggested to us that the offence should instead be based on breaches of duties owed by statute, such as the Health and Safety at Work etc. Act 1974 and the Merchant Shipping Act 1995; or that it should be based on statutory duties in addition to relevant duties of care owed by an organisation under the law of negligence.[122] Statutory health and safety duties would not bring in difficult considerations of civil law concepts, as they are designed for the context of regulating corporate conduct rather than creating liability for civil law. For example, section 3(1) of the 1974 Act imposes the following duty on employers:

    "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 and safety".

103. Witnesses argued that these statutory duties were very clear and well established.[123] They pointed out that the current proposals failed to clarify the relationship between the duty of care and these existing statutory duties.[124] The Centre for Corporate Accountability suggested that this approach was far more rational as companies are not usually prosecuted for breaches of duty of care:

    "It would seem to me much more logical and appropriate then to ground manslaughter in relationship to those existing duties for which companies get prosecuted. Companies do not get prosecuted for breaches of duties of care, generally, so in our view it makes much more sense for the new offence to be grounded on statutory legislation which is broader and is also much better understood than civil law duties of care".[125]

104. We accept that the definition of the offence needs to make clear which are the circumstances in which an organisation has an obligation to act, and in which a serious breach of that obligation leading to death could make it liable for prosecution for corporate manslaughter. We are not, however, convinced that this clarity would be achieved by the proposal to limit the scope of the offence to those situations in which an organisation owes a duty of care in negligence. This legal concept is unclear and is not fixed - the situations in which a duty of care may be owed in negligence will develop in accordance with judicial decisions. Furthermore, we consider that different rules should apply to determine when a person owes a duty of care for another's health and safety in the context of liability for damages under the civil law and in the context of liability under the criminal law.

105. We propose that the Home Office should remove the concept of 'duty of care in negligence' from the draft Bill and return to the Law Commission's original proposal that the offence should not be limited by reference to any existing legal duties but that an organisation should be liable for the offence whenever a management failure of the organisation kills an employee or any other person affected by the organisation's activities. We also recommend that whether an organisation has failed to comply with any relevant health and safety legislation should be an important factor for the jury in assessing whether there has been a gross management failure. Organisations are already required to comply with duties imposed under such legislation and so should already be familiar with them.

Categories of relationship

106. Under the common law, the situations in which a duty of care could be considered to exist are not fixed. The draft Bill, however, adds a further requirement not in the civil law of negligence, that in order to establish that a duty of care is owed it must fall under the following categories:

    (b) in its capacity as occupier of land, or

    (c) in connection with -

      (i) the supply by the organisation of goods or services (whether for consideration or not), or

While the common law includes these categories, other categories could be developed. The Home Office gave no justification in the introduction to the draft Bill for these categories being included.

107. While some witnesses stated that they were not concerned about the inclusion of these categories, others argued that they were limiting[127] and might lead to some negligent deaths being exempt.[128] We heard particular evidence that the Home Office's use of the word "supply" in 4(c)(i) would exempt certain services provided but not supplied by the State. David Bergman, Director of the Centre for Corporate Accountability told the Sub-committees that the Home Office had explained to him that the use of this word would exclude services that are provided by "the Police or the Prison Service or law enforcement bodies, inspection agencies".[129] This was confirmed to us in oral evidence by a Home Office official who told us:

    "The list of relevant factors is…intended to draw a bright line so as to exclude some potential public sector duties where there is more uncertainty as to when duties of care are owed".[130]

108. If the Government does decide to continue to base the offence on duties of care owed in negligence we do not believe the common law concept concerned should be limited by introducing categories where a duty of care must be owed. We are particularly concerned that the material accompanying the draft Bill did not highlight the use of the word "supply" and its intended purpose of automatically excluding certain activities "provided" by the state.

109. We discuss the exemption that arises as a result of the use of the word 'supply' further in chapter 10.

Corporate groups

110. The question of how the offence would apply in the context of groups of companies was raised in a number of submissions. In its 2000 consultation paper, the Government invited comments on whether it should be possible to take action against parent or other group companies if it could be shown that their own management failures were a cause of a death. The Government reported that "a large majority of witnesses agreed with this proposal, but in most cases on the basis that the parent company should only be liable where their own management failings had been a direct cause of death".[131] It explained the position taken in the draft Bill as follows:

    "a parent company (as well as any subsidiary) would be liable to prosecution where it owed a duty of care to the victim in respect of one of the activities covered by the offence and a gross management failure by its senior managers caused death".[132]

111. We heard mixed evidence on this proposal. Some witnesses expressed concerns, including:

  • that it was inconsistent with the principle of limited liability;[133]
    • that it could threaten inward investment;[134]
  • that it should not be possible for two companies within the same group to be prosecuted for the same deaths as this could result in shareholders being punished twice;[135] and
  • that this proposal might discourage large groups from organising, managing and implementing health and safety on a group-wide basis.[136]

112. However, others supported the Government's position.[137] The Royal Academy of Engineering, for example, submitted that:

    "The proposal to make a parent company liable to prosecution is, on the whole, acceptable. If the parent company ignores the behaviour of a subsidiary, or even pressurises it to cut corners, the parent company is as much the cause…".[138]

113. We agree that it should be possible to prosecute parent companies when a gross management failure in that company has caused death in one of their subsidiaries.

114. We are therefore concerned by evidence we received which claims that it may not actually be possible to prosecute a parent company under the draft bill as the law on the duty of care in negligence currently stands. Serco-Ned Railways, for example, pointed out that "there is no established principle in English law that a parent company does in fact owe the relevant duty of care necessary as a component to the offence".[139] The Centre for Corporate Accountability also made this point and argued that the Home Office's statement that parent companies could be liable to prosecution is therefore "a rather misleading and disingenuous assertion".[140] Further, they pointed out, the only legal obligation that parent companies have is that imposed by section 3 of the Health and Safety at Work Act.

115. We are concerned by the suggestion that it may not be possible to prosecute parent companies under the current law, as courts have not ruled that parent companies have a duty of care in relation to the activities of their subsidiaries. This is an additional argument in favour of our recommendation that the offence should not be based on civil law duties of care.

Contractual relationships

116. A number of organisations questioned whether contractors would owe a duty of care in relation to the activities of their sub-contractors or whether employment agencies would owe a duty of care in relation to agency workers killed in the workplace.[141] The Confederation of British Industry believed that the "different legal and practical structures of corporations will give rise to different answers to… the organisation that owes the duty of care to the victim" and warned that this "inevitable inconsistency risks discrediting the law".[142]

117. The British Maritime Association also expressed concern that the law would not cover companies which provide professional management services to a company for a fee. This, they pointed out, was a common arrangement in the shipping industry.[143]

118. Ms Anne Jones, whose son died on his first day of work after signing on at an employment agency, told the Sub-committees:

    "Everyone knows that on a big construction site, like Wembley, for instance, there are enormous numbers of contractors and sub-contractors that are taking on agency workers and even agencies that have borrowed workers from other agencies. There was one case, I think it was two years ago, of an Eastern European who had been killed on a construction site and there were enormous problems with identifying who was employing him, because each layer was passing the buck, saying, "He's not our employee."… Unless we can tighten that up, in the first place, this bill has got a real problem on its hands".[144]

119. We believe that, where a death of an agency worker or of an individual in a sub-contracting company was caused by a gross management failure by an employment agency or main contractor, it should be possible to prosecute these organisations jointly to establish either collective or individual corporate liability. We urge the Government to ensure that the Bill provides for this.

120. The Union of Construction Allied Trades and Technicians argued that on a construction site the only company that should be liable to prosecution is the main contractor:

    "decisions about the overall standards on the site lie with the principal contractor and it is they who should be held responsible whether or not they actually employ any staff".[145]

In a similar vein, Ms Anne Jones argued that employment agencies should have primary responsibility for employment agency workers:

    "If only we could insist on saying to an agency, which effectively is a sub-contractor supplying labour, "Right, you are the principal employer, health and safety law says that you are responsible,"…until we tighten up this, placing a responsibility plainly on the people sending out the workers, then all that will happen is that the host employer will argue, "This isn't my duty of care, this isn't my responsibility," and they will walk free".[146]

121. Under the Construction (Design and Management Regulations) 2003, principal contractors are obliged to co-ordinate and manage health and safety during the construction work, developing a health and safety plan before work starts on site and then keeping it up to date throughout the construction phase. Employment agencies are responsible for an employee's training and health and safety at work, but it is the responsibility of the host employer to provide a safe system of work.

122. We believe that principal contractors and employment agencies should take responsibility for the health and safety conditions of their sub-contractors and workers but that it is a step too far to provide that they should always be liable when a death has occurred. Mr Commins from the Construction Confederation told the Sub-committees: "If a main contractor had carried our all the good practices and the subcontractor had just blatantly disregarded them, I do not see how you could hold the main contractor totally responsible for the subcontractor's actions".[147] We agree. Principal contactors and employment agencies should only be liable when their own management failure is at fault. Anything more than this might encourage sub-contracting companies and those employing agency workers to ignore their health and safety responsibilities.

112   Clause 4 Back

113   Home Office, Corporate Manslaughter: The Government's Draft Bill for Reform, Cm 6497, March 2005, para 16 Back

114   Volume III, Q 581 [Mr Fussell] Back

115   Volume II, Ev 230 and 339 Back

116   Volume II, Ev 188 Back

117   Volume II, Ev 57 and 246, and Volume III, Ev 117 and Q 59 [Mr Bergman]. We were a little confused by the Law Commission's memorandum. The Law Commission's original proposals did not restrict the offence to duties of care owed under the law of negligence. The Commission then argued that "the terminology of "negligence" and "duty of care" is best avoided within the criminal law because of the uncertainty and confusion that surround it" However, the Law Commission's memorandum stated: "The Government's Bill makes explicit the need for a breach of a duty of care owed to the deceased, clause 1(1). We believe this was implicit in the Commission's Bill, but we see the value of making it explicit." Ev 261 Back

118   Volume II, Ev 221 Back

119   Volume III, Ev 117 Back

120   [2003] 1 Cr App R 329 Back

121   Volume III, Q 96 Back

122   Volume II, Ev 206 and 287, and Volume III, Q 94 [Mr Antoniw] and Q 159 [Mr Waterman] Back

123   Volume III, Q 163[Mr Welham] and Volume II, Ev 9 Back

124   Volume II, Ev 9 Back

125   Volume III, Q 60 [Mr Bergman] Back

126   Clause 4(1) Back

127   Volume II, Ev 141 Back

128   Volume II, Ev 246 Back

129   Volume III, Q 61 Back

130   Volume III, Q 584 [Mr Fussell} Back

131   Draft Corporate Manslaughter Bill, para 37 Back

132   Draft Corporate Manslaughter Bill, para 37 Back

133   Volume II, Ev 41, 91, 240 and 273 Back

134   Volume II, Ev 91 and 214 Back

135   Volume II, Ev 190, 212, 224 and 240 Back

136   Volume II, Ev 240, 273, 275 and 328 Back

137   Volume II, Ev 212 and 224 and Volume III, Q 193 [Mr Nelson] Back

138   Volume II, Ev 224 Back

139   Volume II, Ev 328 Back

140   Volume III, Ev 118 Back

141   Volume III, Q 384 [Mr Roberts] and Volume II, Ev 234 Back

142   Volume II, Ev 252 Back

143   Volume II, Ev 327 Back

144   Volume III, Q 14 Back

145   Volume II, Ev 8 Back

146   Volume III, Q 14 Back

147   Volume III, Q 226 Back

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Prepared 20 December 2005