The Health and Safety at Work etc Act 1974 (the 1974 Act) has, for the past two decades, been the most important source of protection for employees and the public at large from the actions of reckless or negligent employers.S.3(1) of the 1974 Act for example, places a duty on 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 exposed to risks to their health and safety.

In two common instances, however, the Health and Safety Executive (HSE) has, until comparatively recently, faced considerable difficulties in establishing criminal liability against an employer suspected of breaching this provision.The first instance is where the employer alleges that the particular act complained of was not in fact carried out by him or his employees, the work having been sub-contracted to an independent contractor over whom (he alleges) he had no control.

The employer in these circumstances would argue that the act complained of was not part of his 'undertaking' and he cannot be held responsible criminally for the acts of the independent contractor.The second instance is where the employer is an artificial person such as a company or local authority and there has been some lapse in health and safety standards by an employee who is not part of the 'directing mind' of the organisation (ie not a director or senior manager).Following the Court of Appeal decisions of R v Associated Octel Petroleum Ltd and R v British Steel plc [1994] The Times, 31 December, the HSE should, in future, have little difficulty in prosecuting employers who raise such defences.

The potential consequences of a conv iction can be catastrophic to a business.

Employers face a maximum fine of £20,000 for each offence in the magistrates' court or an unlimited fine in the Crown Court.

A conviction will no doubt assist any civil claim for damages by the person injured (or, if deceased, from dependants or insurers).The appellant company in the Octel case was convicted upon indictment for an offence under s.3(1) of the 1974 Act, fined £25,000 and ordered to pay £60,000 costs.

The prosecution arose from an accident which occurred in 1990 at the appellants' chemical plant which resulted in serious injury to an employee of a firm of contractors carrying out work at Octel's premises.

The contractors, Resin Glass Products Ltd (RGP), were also convicted of an offence under a different section of the 1974 Act.It was Octel's practice to shut down the chemical plant annually for pre-planned routine maintenance and repair.

RGP, which had worked as specialist contractors for Octel for many years, were engaged to clean out a tank within the chlorine plant.

Whilst RGP's employee was carrying out this task using acetone (a highly inflammable substance) the bulb of the light he was using suddenly broke, probably as a result of the acetone dripping onto it, causing the acetone vapour to ignite.

The unfortunate worker was severely burned in the flash fire and explosion which followed.A number of unsafe working practices were highlighted by the factory inspectors, including the fact that the lamp used was not a safety lamp and the acetone should have been contained in a closed container to prevent seepage and vaporisation.At trial, at the conclusion of the prosecution case Octel submitted that there was no case to answer on the basis that since RGP were independent contractors competent to decide how the work was to be done and what precautions were to be used, Octel was not, at the material time, 'conducting their undertaking' and could not, therefore, be guilty of an offence under s.3(1) of the 1974 Act.

The operation which was being carried out was the conduct of RGP'S undertaking.

This submission was rejected, Octel elected to call no evidence to establish whether they had done all that was reasonably practicable to avoid the accident and they were duly convicted.On appeal, counsel for Octel argued that the duty imposed by the section was coterminous with the duty imposed by the law of tort in respect of the activity of a person to those who are not in his employment and that this does not, save in exceptional circumstances, involve liability for the acts of independent contractors.Under the civil law of tort an employer is not generally liable for the acts of an independent contractor who is engaged to perform a particular task.

However, the Court of Appeal helpfully cited examples of exceptions to this rule which included non-delegable duties of care owed by the employer to his own employees; the conduct of extra-hazardous operations; a head contractor failing to supervise the activities of sub-contractors; employees of independent contractors injured by some defect in premises under control of an occupier/employer or by defective plant or equipment provided by him for the purpose of carrying out the contractors' work (a situation governed by s.4 of the 1974 Act).The exception cited of most relevance to the facts in this case involved the situation where the employer/principal exercises control over the contractors' operations so that he is able to tell the contractors' workers how they are to do the work and what safety precautions they are to take or exercises joint or partial control over them in this respect.

Counsel for Octel argued that the prosecution should have attempted to prove that Octel had exercised the necessary degree of control to bring the case within that exception and to show that it was the conduct of Octel's undertaking.

He drew support from the earlier High Court decision of RMC Roadstone Products Ltd v Jester [1994] The Times, 8 February in which the Divisional Court decided that an employer's mere capacity or opportunity to exercise some control over the activities of an independent contractor was not enough to bring that activity within the ambit of the employer's undertaking for the purposes of s.3(1) of the 1974 Act.

While complete control was not necessary, there had to be some actual exercise of control or the common law duty to exercise control over the activity.Armed with this recent clear first instance judgment on the precise issue under debate in the Court of Appeal, Octel would, no doubt, have been reasonably optimistic about their chances of success.

Unfortunately for Octel the Court of Appeal agreed with the respondent's submission that the RMC case had been wrongly decided.

The Court of Appeal said the question of control over how work is done is something of which the draftsman of the Act was very much aware and such concept was very relevant to the issue of whether the employer has taken precautions as far as is reasonably practicable.

The court said it was not inconceivable that Parliament intended to create an offence involving criminal liability subject only to the defence of 'so far as is reasonably practicable' and that it had, in fact, done precisely that in ss.28 and 29 of the Factories Act 1961 (which impose non-delegable duties on factory occupiers to keep floors etc free from obstruction).Lord Justice Stuart-Smith giving the leading judgment of the court said: 'The word "undertaking" means "enterprise" or "business".

The cleaning, repair and maintenance of plant, machinery and buildings necessary for carrying on business is part of the conduct of the undertaking, whether it is done by the employer's own employees or by independent contractors.

If there is a risk of injury to the health and safety of the persons not employed by the employer, whether to the contractor's men or members of the public, and a fortiori if there is actual injury as a result of the conduct of that operation, there is prima facie liability, subject to the defence of reasonable practicability.'The Lord Justice further explained: '...the question of control may be very relevant to what is reasonably practicable.

In most cases the employer/principal has no control over how a competent or expert contractor does the work.

It is one of the reasons why he employs such a person that has the skill and expertise, including knowledge of appropriate safety precautions which he himself may not have.

He may be entitled to rely on the contractor to see that the work is carried out safely, both so far as the contractor's workmen are concerned and others including his own employees or members of the public.

And he cannot be expected to supervise them to see that they are applying the necessary safety precautions.

It may not be reasonably practicable for him to do other than rely on the independent contractor.'On the issue of what is reasonably practicable the judge relied on the lawyer's time honoured maxim, 'it is a matter of fact and degree in each case'.The courts appear determined to close legal loopholes so as to ensure the 1974 Act achieves its purpose.

Employers contemplating the latter course (especially if they are 'large organisations employing safety officers', etc) would be well advised to reconsider their approach to this issue.The appeal in the British Steel case again involved the interpretation of s.3(1) of the 1974 Act but was not concerned with the issue of liability for the acts of independent contractors.

At trial, counsel for both prosecution and defence agreed that the words 'so far as is reasonably practicable' in s.3(1) enabled the defence to submit that provided the 'directing mind' or senior management of British Steel had taken all reasonable care to delegate supervision of the operation in question to their employees the company was entitled to be acquitted of the offence.This reasoning was (or so counsel believed) consistent with the House of Lords dicta in Tesco Supermarkets v Natrass [1972] AC 153 which involved a charge against a supermarket chain under the Trade Descriptions Act 1968.

The question arose in the case as to whether the acts of the supermarket managers were the acts of the company itself.

Lord Reid had concluded that: 'They [the board of directors] set up a chain of command through regional and district supervisors, but they remained in control.

The shop managers had to obey their general directions and also take orders from their superiors.

The acts or omissions of shop managers were not the acts of the company itself.'The trial judge disagreed with the parties' view of the relevance of this case and ruled that the decision in Tesco was inapplicable and that the defence of proper delegation did not arise.

Not surprisingly perhaps, British Steel appealed against this ruling.

The Court of Appeal, however, agreed with the trial judge pointing out that the 1968 Act was different from the 1974 Act in a number of respects:-- The 1968 Act contained a provision which enabled a defendant to raise the defence that he had taken all reasonable precautions and exercised all due diligence to avoid the commission of the offence.

The Court of Appeal decided that the purpose of the 1968 Act must have been to penalise those at fault, not those who were in no way to blame.

The 1974 Act contained no such provision.-- The Tesco case involved consumer protection whereas the British Steel case was concerned with health and safety, which prima facie required more stringent protection, the legislative techniques of the two statutes being (in the Court of Appeal's opinion) quite different.-- The Tesco case did not provide the answer to the problem of construction before the court.

The answer had to be found in the words of s.3(1) of the 1974 Act in its contextual setting.

Subject to the qualifying words 'so far as is reasonably practicable' the 1974 Act was prima facie cast in absolute terms and that this point was settled by the two decisions of the Court of Appeal in Octel and R v Board of Trustees of the Science Museum.Lord Justice Steyn, giving the judgment of the court said: '...it would drive a juggernaut through the legislative scheme if corporate employers could avoid criminal liability where the potentially harmful event was committed by someone who was not the directing mind of the company.'...And, if British Steel's submission was accepted it would be particularly easy for large industrial companies, engaged in multifarious hazardous operations, to escape liability on the basis that the company through the directing mind or senior management was not involved.

That would emasculate the legislation.'The effect of this judgment is that th e HSE will no longer have to investigate whether particular employees were or were not part of the directing mind of the company before bringing prosecutions against corporate employers.

Companies will, no doubt, have to review their procedures to see whether there are any other measures (apart from and in addition to having sound health and safety policies, good delegation, supervision, training etc) which they can take to avert (so far as is reasonably practicable) risks to third parties arising from the actions of their employees or (in view of the Octel case) arising from the actions of independent contractors.NB I understand that both the Octel and the British Steel cases may be subject to appeal to the House of Lords.