Case Commentary: R v WINTERTON  EWCA Crim 2435
Andrew Winterton was convicted of the gross negligence manslaughter of Shane Wilkinson. He was also convicted of three counts alleging breaches of ss7 and 37 of the HSWA. He was sentenced to a total of four years’ imprisonment.
A co-defendant, Dean Wortley, was acquitted of manslaughter but convicted of health and safety offences. He received 12 months’ imprisonment. Conquest Homes LLP was convicted of health and safety offences and was fined a total of £55,000.
Mr Wilkinson was a labourer on a construction site in Northampton. An L-shaped trench had been dug for the laying of drainage pipes. On 4 September 2014, Mr Wilkinson was standing either in the trench or at its edge when it collapsed. He was buried in earth and rubble and suffered fatal injuries.
Winterton was the construction site manager and a director of Conquest. He accepted at trial that he had overall responsibility for health and safety at the site. The prosecution’s case was that the accident was entirely foreseeable and preventable and that it had been caused by the gross negligence of Winterton (and Mr Wortley, although he was acquitted).
Mr Wortley traded under the name Clearview Demolition. He had been hired by Winterton to excavate the trench using a digger.
The prosecution’s case related to the way in which the trench was excavated. It was over 2 metres deep. Its sides were not battered back. It was, or should have been, obvious that there was a risk that the trench would collapse and that this presented a clear and obvious risk to anyone standing at the edge of, or in, the trench.
An employee of Anglian Water, who visited the site the day before the trench collapsed, warned that it was dangerous. He was assured by the digger driver (Wortley) that it was ‘alright and that it was really good ground’.
The prosecution’s primary case was that Winterton knew that the trench had been dug in a manner that was obviously dangerous and that, in breach of the duty of care he owed to the workers on site, he did nothing about it. The prosecution maintained that Winterton could not have failed to see that the trench was dangerous. It had been excavated over a seven-day period and Winterton’s own evidence was that he visited the site daily, and sometimes more than once a day. He had to walk past the trench to reach the area of the site where new houses were being built, and so he must have seen how the trench was being constructed.
Alternatively, if Winterton had not known about the state of the trench then he should have known, because he was responsible for health and safety at the site, he had been responsible for hiring Clearview Demolition and Wortley, and he had the responsibility of monitoring their work.
The single judge granted permission to appeal in respect of a single ground of appeal which was that the judge erred in law in directing the jury that they were entitled to consider that Winterton ought to have known about the way in which the trenches were being dug at the time of any alleged breach by him, in reliance on the decision of the court in R v Honey Rose  EWCA Crim 1168.
On behalf of Winterton it was submitted that the prosecution would need to prove that Winterton had actual knowledge of the serious and obvious risk of death, and that to direct, as the judge did in posing the question in terms of “knew about this, or should have known about it” was simply wrong. Having regard to the appellant’s convictions in relation to breaches of the Health and Safety at Work, etc Act 1974, there was a risk that the jury had decided that those statutory breaches fixed him with the necessary foreseeability required to establish guilt of the offence of gross negligence manslaughter, but this would have been in retrospect, not prospect.
In response, the prosecution argued: “Unlike the facts in R v Rose, the breach of duty of care alleged against the appellant had nothing to do with a failure to carry out checks that would have put the appellant in possession of particular knowledge…it was unnecessary for the appellant to carry out any particular inspection of investigation (as was required by the optometrist in R v Rose or the doctor in R v Rudding  EWCA Crim 741). All he needed to do was open his eyes and ensure the health and safety of persons at the site as he accepted he was required to do. His position therefore is no different from the anaesthetist who failed to observe the disconnected endotracheal tube (see Adamako (1994) 98 Cr App R 282) or the doctors who allowed a post operative condition to go untreated (see R v Misra and Srivastava  1 Cr App R 21): those appellants failed to appreciate the danger that was obvious to everyone else and should have been obvious to them…It was not a case of what [the Appellant] “ought to have known” had he carried out an investigation, but rather a case of what he should have known because he could not have been missed…the risk in this case was ‘clear and unambiguous’ and ‘not one which might be apparent on further investigation’.”
The ratio of the court in Honey Rose is that “The question of available knowledge and risk is always to be judged objectively and prospectively as at the moment of breach, not but for the breach”. The “factual matrix is critical”.
The factual matrix in this case was that it was a question of ‘when’ not ‘if’ the trench would collapse and this was or should have been apparent to anybody. Consequently, there was reasonable foreseeability of serious and obvious risk of death to anyone in or near the trench. The Appellant’s breach of duty is not to be cast as that in the case of the optometrist in Honey Rose, and the GP in Rudding. They were not sufficiently alerted – and had no cause to be – to the risk of death on the facts available to them at the time of the breach of their respective duties of care, and which when objectively assessed should have alerted them to the serious and obvious risk of death…In both cases, the prosecution was inviting the jury to a retrospective scrutiny of foreseeability of death on the basis of the ultimate and fatal outcome of the progress of a disease that could have been detected sooner but for breach of their duty of care, not that this risk should have been apparent to them prospectively at the moment they failed to investigate further.
In Winterton’s case the warning signs and serious and obvious risk of death were there for him to see. He either did see them and ignored them, or failed to do so in circumstances that would provoke an objective observer to say, ‘but on the facts and in his position he should have done’.
The appeal against conviction was dismissed.
Oliver Glasgow QC represented the Crown at trial and on appeal.
Jim Buchanan represented Dean Wortley at trial.