ESLJ Volume 2 Number 1 Interventions
Giving Fair Notice of Best Evidence: Reflections on R v. Lake Estates Watersports Ltd, Michael Ely and Stuart Ely
RONA JAMIESON
[Rona Jamieson is a Partner with Paull-Williamsons Solicitors, Aberdeen.]
This is an intervention published online on March 7th 2005.
Citation: Jamieson, Rona, 'Giving Fair Notice of Best Evidence: Reflections on R v. Lake Estates Watersports Ltd, Michael Ely and Stuart Ely', Entertainment and Sports Law Journal (ESLJ) Volume 2, Number 1 <http://www.warwick.ac.uk/go/eslj/issues/volume2/number1/interventions/jamieson/>.
This case concerns a prosecution under the Health and Safety at Work etc Act 1974. Two brothers, Michael and Stuart Ely were the operators of a water-sports centre, Lake Estate Watersports Ltd, based in Oxfordshire. The company and the two brothers were prosecuted following a fatal accident in August 1997. They were convicted at the Crown Court in Northampton in November 1999 and immediately appealed. On 19 July 2002 the Court of Appeal overturned all three convictions as unsafe.
It may be tempting for employers to see the Appeal decision as a victory for the small business in the face of aggressive enforcement of health and safety legislation. That would be a mistake. It is worth looking in some detail at the circumstances leading to the prosecution and the Appeal Court's decision.
All three were charged with breaches of section 3 of the Health and Safety at Work etc Act 1974. Section 3 is in the following terms:
General duties of employers and self-employed to persons other than their employees
(1) 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.
(2) It shall be the duty of every self-employed person to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that he and other persons, not being his employees, who may be effected thereby are not thereby exposed to risks to their health and safety.
(3) In such cases as may be prescribed, it shall be the duty of every employer and every self-employed person, in the prescribed circumstances and in the prescribed manner to give to persons, not being his employees, who may be affected by the way in which he conducts his undertaking, the prescribed information about such aspects of the way in which he conducts his undertaking as might affect their health and safety.
In the early 1990s the Elys had set up the water sport centre with a water-ski club and a jet-ski club both operating on the lake. The brothers identified the need to separate both sides of the lake and had used a line of buoys. There is some ambiguity about exactly what was present but there were at least three large white buoys spaced regularly along a 300-metre division with two smaller coloured buoys between two of the openings. On one side of the division there was a course set up for jet-skiers and on the other a course set up for water-skiing.
On 9 August 1997 a novice jet-skier, Anthony Gee, with his 17-year-old niece, Faye Grundy, riding pillion, crossed the line of buoys from the jet-ski zone into the water-skiing area. Faye was knocked into the water and was run over by one of the water-ski powerboats. She was fatally injured by the propeller of the powerboat.
Mr Gee had not used a jet ski before the day of the accident. He appears to have received around 10 minutes' instruction on the use of the jet ski, during which the importance of keeping to the correct side of the separation line was emphasised. He and the other novices were also taken around the lake by Michael Ely on a tour of the novice circuit, although Mr Gee claimed that he had difficulty seeing where they were being taken because he was not first in line behind Mr Ely. He had made several circuits of the lake prior to the accident and on one earlier occasion, also with Faye Grundy on the jet ski, he had crossed the separation line into the water-ski area. Michael Ely spotted what happened on that occasion and chased after Mr Gee in a powerboat to alert him and emphasise the importance of staying on the correct side of the division. Despite this, a short time later Mr Gee failed to make an essential turn in the novice circuit and again crossed through into the water-ski area where the fatal accident occurred.
The Prosecution's main criticisms of the defendants were as follows:
a) failing to ensure an effective form of separation either by allowing the activities to use the lake at different times or by way of a neutral buffer zone;
b) permitting white markers buoys to be used as the means of separation;
c) permitting the novice jet-ski course to be laid out in a form which made it difficult to steer safe passage (hexagonal form);
d) permitting spectators in an area which would be a distraction to the jet-ski users;
e) failing to ensure that there was effective supervision and monitoring of the activities on the lake; and
f) failing to ensure that there was an effective warning device audible to the users of the lake.
The first two aspects of the offence were seen as the most important and the Crown required to lead evidence in order to demonstrate that the marker buoy system of division employed by the Elys was not in accordance with good practice at similar water-sports facilities.
At the trial the Crown relied upon a document which, they claimed, illustrated the practice at other water-sport facilities. The Crown argued that this demonstrated that good industry practice dictated a proper separation between areas of a lake dedicated for personal water craft and for water-skiing. Separation was required to be either in time, with the two activities being conducted at different hours in the day, or physical with an effective barrier. The summary had been prepared by the Crown's expert witness from the results of questionnaires. The questionnaires had been completed by local authority officials after approaching the operators of a number of facilities for information. In some cases this was simply by telephone. Although the questionnaire had been disclosed to the defence prior to the trial it was on the basis that it would not be used in evidence. Partway through the trial the Crown changed its position and decided to use the document to support the evidence of its expert witness. Counsel for the Defence objected, but the trial Judge ruled that it was admissible. The appeal turned upon whether the trial Judge was correct in allowing this evidence to go before the jury and, if he was not, whether that error made the subsequent convictions unsafe. The Appeal Court decided that the answer to both questions was yes. They held that by allowing the summary of questionnaire results to be admitted to evidence the defence were unfairly prejudiced. They could not verify the information at such a late stage in the trial and, since those actually providing the information on the practices, the operators of the facilities, were not called as witnesses there was no opportunity to challenge the evidence.
The use of the questionnaire was not of itself misconceived. The main problem for the Crown was that their expert witness did not visit any of the sites personally. He claimed to be too busy. Accordingly, when the questionnaire was produced in evidence and there was a dispute over the accuracy of the information, the Crown expert could not confirm that the results of the questionnaire were accurate. It was a basic error.
It is interesting to note that the Appeal Court took into consideration the effect of section 40 of the Health and Safety at Work etc Act 1974. This places the onus on the defendants to prove in any prosecution that it was not reasonably practicable to do more than was in fact done by them to satisfy their health and safety duties. In such circumstances any unfair advantage to the Crown was compounded and of even greater prejudice to the defence than in the usual case where the burden is wholly on the Crown.
The Appeal Court did not uphold the substantive defence on the merits. On the contrary, there is little doubt that if the Crown had provided fair notice that the questionnaire was to be used in evidence and there had been an opportunity to cross-examine on accuracy of the information contained therein, the document would have been admissible and the convictions would have been upheld.
What is of interest in this case is the Court's timely reminder of the importance of ensuring the availability of best evidence and fair notice in a case where, as a result of section 40 of the 1974 Act, the onus of proof is on the accused. It may be equally important to recognise the successful outcome for these defendants for what it is: not so much a victory for the defence as a defeat for the prosecution. The 1974 Act and subordinate regulations impose onerous duties to risk assess activities, implement proper precautions and carry out effective supervision and monitoring to ensure compliance. Whilst the size of a business and its resources may be relevant to the steps that it is reasonably practical to take it does not effect the absolute nature of the duties. One might argue that in this case, the Elys had a fortunate escape.
