The decision in R v Porter has had a significant effect on the law regarding the current legal test for risk under the Health and Safety at Work Act 1974. Mr Porter was the headmaster of Hillgrove School in Wales and had been since 1975. His conduct as headmaster was praised by the Court of Appeal in their judgment, and under his guidance, the school had an excellent health and safety record. There had never been any complaints about the safety standards at the school and the Health and Safety Executive had never had cause to visit it. One of the pupils at the school, a three and a half year old boy, injured himself while playing on the school steps. He was negotiating his way down the steps and when he got to the fourth step he jumped to the base of the steps. Most unfortunately he landed on the bottom step and hit his head. Although he had suffered a relatively minor head injury, it eventually led to brain swelling and he died four days after the accident.
A short time after the incident, the HSE required the school to provide a gate around the steps, which was subsequently provided. Mr Porter was prosecuted for exposing the deceased to a risk to his health and safety by failing to ensure that children were properly supervised. It was also alleged that he had exposed a child to a risk by reason of his falling from the flight of steps. The prosecution called witnesses who worked at two other schools to demonstrate that they provided a greater level of supervision than was practiced at Hillgrove School. Hillgrove operated a supervision level of 2:26, which complied with Department of Health recommendations. The Court of Appeal went on to refine the test of ‘risk’ which is the necessary trigger for offences under he Health and Safety Act. Moses LJ emphasised that ‘what is important is that the risk which the prosecution must prove should be real as opposed to fanciful or hypothetical.’ He then went on further to discuss how to differentiate between risks which are real and those that are fanciful. He noted that the absence of any previous accident in circumstances which occur day after day is highly relevant. In the case in question, no other accident had ever occurred on these steps, despite the same allegedly inadequate level of supervision. Where the risk could truly be said to be part of the incidence of everyday life, it is less likely that the injured person could have been exposed to risk by the conduct of the operations in question.
It seems that this judgment has extended the legal test for risk to take account of the realities of everyday life. The lack of a similar accident in particular becomes important. In the future, the existence of real risk, not merely fanciful or imaginative risk will be the test. However it remains to be seen whether this verdict is set in stone as the prosecution have recently announced their intention to take the case to the House of Lords.