Losing made easy

Prosecutions by the Health and Safety Executive are on the increase and designers and others involved in construction projects need to be aware of the differences between criminal liability under health and safety legislation and civil liability.

A criminal conviction for a company (as well as an individual) can result in a heavy fine or even imprisonment. It can also prejudice its chances of successfully tendering for projects in the future. Prosecutions may be followed by actions in the civil courts by those looking for compensation for fatalities or personal injuries or by clients seeking to recover losses (either property-related or financial) arising out of the incident on site.

Generally, breaches of health and safety legislation will not automatically result in liability in a civil claim for breach of statutory duty. Furthermore if a designer is found guilty or pleads guilty in a criminal prosecution, they will not inevitably be liable in a civil action. However, a criminal conviction is admissible evidence in a civil action. If acquitted, it does not follow that they will successfully defend a civil action.

The normal rules needed to demonstrate negligence or breach of contract apply to civil actions. So far as designers are concerned, the requisite elements can be summarised as follows:

• Has there been a failure to exercise reasonable skill and care or a breach of a contractual obligation?

• If so, has someone suffered loss or damage and was this the reasonable foreseeable consequence of the designer's conduct?

• Was the loss or damage caused by the breach of duty or did it occur for another reason?

Criminal prosecutions are different. No loss or damage, whether financial or physical, needs to have been suffered. The standard of care in a civil action is the standard of an ordinary competent person of that profession: that of a reasonable average. The standard imposed by health and safety legislation is higher. For example, section 3(2) of the Health and Safety at Work Act 1974 requires employers (including designers) to conduct their undertaking in such a way as to ensure that persons who may be affected are not exposed to risks to their health and safety. In a prosecution the burden will be on the designer to prove that they have taken all reasonably practical measures to ensure health and safety. In a civil claim the burden is on the claimant to prove, on the balance of probabilities, that the designer has been negligent.

Conduct that may fall short of the standard required by health and safety legislation will not necessarily constitute negligence in a civil claim. Conversely, an employee may be negligent in matters concerning health and safety without that giving rise to a successful prosecution, because the employer may still be able to show that it took all reasonably practical measures not to expose people to risks to health and safety.

If a designer is found guilty or pleads guilty in a criminal prosecution, he will not inevitably be liable in a civil action

In the case of Regina vs Nelson Group Services (Maintenance) Limited 1998, a gas fitter had fitted a gas pipe in someone's home negligently leaving the connection uncapped. This undoubtedly exposed people to risks to their safety but the Court of Appeal said that the gas fitter's negligence did not make the company that employed the gas fitter automatically guilty of an offence. It was still open to the company to prove that it had taken all reasonably practical steps – by, for example, giving the fitter proper instructions and training. However in civil law, employers are always vicariously liable for the negligence of employees. Therefore, in such a case the company would have had to pay damages to anyone who had been injured or suffered other loss as a result of this type of negligence.

Practical differences exist between the two different types of legal action. In civil claims, a designer can seek to reduce his or her liability by claiming contributory negligence or negligence by another. Although a designer can seek to blame others for an incident on site, this may be of little effect where health and safety responsibilities are placed on all those involved in construction projects. A designer can attempt to settle a civil claim, for example by negotiation, formal offers of settlement or mediation.

Criminal prosecutions are destined for trial with plea bargaining the only option. A designer can insure against all the damages and costs incurred in a civil action whereas in a criminal prosecution there is no insurance against fines or prosecution costs but a designer may be able to insure against his own defence costs. Liability can be excluded or limited in a contract, but such terms will be of little use in a criminal prosecution.