On Friday 9 August 2024 the Court of Appeal released its judgment in the appeal of Exolum Pipeline Systems Limited v HSE [2024] EWCA Crim 947. James Puzey appeared for the HSE with John Cooper KC and Elizabeth Boon for Exolum. The Company’s appeal against conviction was dismissed and its appeal against sentence was allowed. The Company operates the largest fuel pipeline network in the UK. On 9 March 2018 an underground, high pressure, fuel pipeline in Lincolnshire was suspected to be leaking petrol, albeit that was uncertain. The Company engaged a contractor and its own staff to investigate whether there was a leak. This was carried out by digging up the pipeline whilst it was still at high pressure and still pumping petrol.
At the point in the dig when a leak was strongly suspected the excavation team sought guidance from the Company management who instructed them to carry on. A small leak was confirmed by sight. The site was evacuated, the pressure reduced and the fuel switched to diesel which is less flammable. The incident was reported to the HSE who prosecuted the Company for exposing the digging team to the risk of an explosion and fire. The Company was convicted after trial of offences under ss 2 & 3 of the Health and Safety at Work Act 1974. The Company appealed on the basis that a half-time submission of no case should have been allowed.
The basis of that submission was that the experts had agreed that given the size of the leak eventually confirmed and given the precautions on the day there was not a material risk of an explosion and fireball. The Defendant’s submission was that there was merely a theoretical risk not a real one.
The Court of Appeal dismissed the appeal against conviction on the basis that “the risk in this case was not hypothetical, nor was it merely “a risk of a risk” as Mr Cooper put it. The existence of a foreseeable risk is an objective issue of fact” and “that excavating a high pressure pipeline that is suspected to be and is, in fact, leaking petrol, is potentially dangerous. It exposes those carrying out the excavation and anyone in the immediate vicinity of it to a risk that is neither trivial nor fanciful.” (Paragraphs 34-35).
The case is significant in that it upholds the understanding of “risk” in health and safety law that was originally explained in R v Board of Trustees of the Science Museum [1993] 3 All ER 853 and which was approved in R v Chargot Ltd [2009] 1 WLR 1].
The appeal against sentence was allowed and the fine reduced from £2.3m to £1.5m.
