Peter Smith secures another acquittal in a s.37(1) prosecution,

Peter represented a former director and ‘Tool Maker’ of a company, concerning a serious injury sustained by a ‘Tool Setter’ when he lost his dominant right hand.

The company had 2 directors and a managing director.

An issue with a pressing machine arose due to what was found to be an inappropriate and defective interlock switch guard.

During the working day, there had been an issue in the morning, and instead of replacing the entire switch, albeit inappropriate, only the head was replaced.

Both the injured worker and the defendant director had thought that changing the head only would be sufficient, since the switch had been introduced by another director and the head previously replaced by the managing director. The defendant director was working in close proximity and had discussed the problem both in the morning and in the afternoon when the injury was sustained.

The manufacturer’s instructions were that only the entire switch should be replaced.

It was clear that the company had failed to follow specific guidance on the design and nature of the switch, as well as failing to follow and provide regular checks and maintenance. No risk assessments or method statements were undertaken, and no training was ever given to those using the machine, including the defendant director.

It was the prosecutions case that the defendant was a director, in a supervisory role, had real authority, should have troubleshooted, was working next to the injured workman, and had agreed that the switch head should be replaced.

When the prosecution closed its case, Peter made an application of ‘No case to answer’, which succeeded. The basis of the submission was that the prosecution could not satisfy the Boal test, amongst other things, and that the investigation for a s. 37(1) charge by the HSE was significantly flawed. From the evidence given at trial, all of the arrows pointed to another director in Boal terms, with the prosecutions own expert evidence assisting the defendant director following cross-examination.

Peter was instructed by Ciaran Garnett, Partner at DAC Beachcroft, Leeds.

View Peter's profile here: https://deanscourt.co.uk/our-barristers/peter-smith