Health and safety: fatal hotel fall: partnership liability

HEALTH AND SAFETY

Death fall from hotel window

Partnership

Case R v Lear and Lear [2018] EWCA Crim 69, Court of Appeal

Facts L and L were husband and wife partners in a hotel business. A hotel guest fell to his death from a bedroom window. the local authority prosecuted L and L under section 3 of the Health and Safety at Work, etc., Act 1974 (HSWA) on the basis that the window created a risk of falling and if L and L had conducted a suitable risk assessment, they would have installed devices to restrict the opening of the windows and reduce the risk of falling. L and L applied for permission to appeal against the judge’s conclusions at a preparatory hearing that there was a case to answer under section 3 and that L and L had been properly charged as individual partners because they were joint employers and therefore potentially jointly and severally liable for the actions of the business.

Decision 1. The application was refused.

1. It was a question of fact whether the risk was reasonably foreseeable. All the circumstances were relevant, including the window’s proximity to the bed and the height of the opening.

2. The fact that a partnership could be prosecuted did not provide authority for the proposition that only the partnership could be prosecuted. L and L were employers and they had a duty under section 3 in relation to the overall running of the hotel.

3. There was no reason partners should be more favourably treated than directors when they were likely to have more control.

4. The expression “undertaking” in section 3 was to be interpreted widely so that where the undertaking was the running of a hotel, it was the hotel enterprise as a whole. The employer might be the partnership, an individual partner, or any or all of them.