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Legal Minds

5 March 2015 / by / in

Thinking fast and slow

How a judge should explain ‘risk’ to a jury was recently the subject of the Court of Appeal decision in HSE v Balfour Beatty Infrastructure Services Limited and Enterprise (AOL) Ltd [2014] EWCA Crim 2684.

The case concerned a fatal road traffic accident in November 2007. A section of the A50 was closed with westbound traffic diverted at the A522 exit. Balfour Beatty, the road managing agent, contracted Enterprise to set up a temporary traffic management system (TTM) for this closure. ‘Wicket boards’ were placed at 800, 600, 400 and 200 yards before the exit. There was a roundabout between the 400 and 200 yard boards. While these showed that only lane two was closed, there were ‘road ahead closed’ and ‘keep left’ signs placed on the approach. The speed limit at the roundabout was 40 mph increasing to 70 mph beyond. The A50 has a gentle downhill gradient and a right hand curve leading to the A522, but the turning is sharp.

In the early hours of the morning a driver failed to negotiate the road closure colliding with a parked Enterprise van. He had been awake for most of the previous day. He had driven from Stoke to London and was on his return journey. There was no fault with his vehicle and no sign of emergency braking or swerving. According to HSE, fatigue is often the root cause of major accidents and has been implicated in a fifth of accidents on major roads.

The defendants were convicted of breaching section 3 of the Health and Safety at Work etc. Act 1974, i.e. they failed to ensure, so far as is reasonably practicable, that road users were not exposed to a ‘material risk’ from the TTM.

The prosecution alleged the TMM fell below the standard required and that a suitable risk assessment had not been undertaken. In the opinion of an accident reconstruction and traffic management specialist called by one of the defendants, the TTM was sufficient for any normal driver. He conceded there had been no risk assessment of the sharp turn.

The trial judge directed that to convict the jury must find the TTM exposed drivers to a material risk.

The defendants’ complaint was he should have explained that a material risk means a real risk as opposed to a fanciful one and should be distinguished from an ‘everyday risk’.Their appeals against conviction were dismissed. The court concluded the word ‘material’ was unambiguous and commonly used and to give further explanation might cause confusion.

The concept of risk is difficult for lay people to understand. The appellate courts have struggled to give guidance on defining risk in a health and safety case.

Professor Löfstedt, who carried out a government review of health and safety legislation, often cites psychologist Daniel Kahneman’s work in the field of risk perception. Kahneman argues we estimate the probability of something happening based on how easily we can recall other instances to mind, rather than on how often it actually occurs.

The House of Commons Library’s 2013 report on road accident statistics records that road deaths have fallen considerably since the 1970s. Today the risk of being hurt or killed in a road traffic accident stands at 41 casualties per 100 million kilometres travelled. The number of road deaths per million population of the UK is 28.

Kahneman in his acclaimed book Thinking, Fast and Slow warns “We are prone to overestimate how much we understand of the world and to underestimate the role of chance in events. Overconfidence is fed by the illusory certainty of hindsight”.

Key factors in the jury’s assessment would have been the fatality and their general knowledge of road accidents. Perhaps if the statistics of serious road accidents had been a feature of the evidence, its conclusion that there was a material risk from the TTM may have been different.

Originally published in the New SHP magazine blog in March 2015.

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