Death At Work: Christopher Gillespie Reflects On The Lessons Of A Recent Case
In August 2012 AB, a grounds man/litter picker at a waste transfer station operated by the defendant company, was killed instantly when he was struck by a loading shovel being driven by CD, the site supervisor. The accident took place on a concrete apron directly outside the sheds in which waste was deposited.
The company had taken over the site in January 2011 and had reviewed the various risk assessments and the traffic management plan. However, the traffic management plan was inadequate in that it permitted litter picking on the apron at all hours except during what was described as the “busy period” between 10am and 2pm. In the circumstances of this case it was accepted that this represented a failure to ensure that pedestrians and traffic could circulate safely.
Further, it was accepted that the preventive and protective measures were not reviewed, monitored or enforced effectively in that there was evidence that AB worked on the apron at all times including during the prohibited period.
Therefore the company indicated guilty pleas at the magistrates’ court to offences contrary to Regulations 4(1) and 17(1) of Workplace (Health, Safety and Welfare) Regulations 1992 in relation to the traffic management plan and Regulation 5(1) of the Management of Health and Safety at Work Regulations in relation to the monitoring etc of the preventive and protective measures.
The HSE took a robust stance, alleging that the breaches had caused the death of AB and were longstanding; management knew of the breaches but had ignored concerns raised; danger was caused to other members of the public including lorry drivers who had to leave their vehicles in order to operate the controls; the risk assessments had not been reviewed in light of what was said to be a significant increase in the flow of traffic; and that in all the circumstances the company had fallen far below the required standard.
The defence contended that the breaches were not a significant cause of AB’s death: AB had been working on the apron during the prohibited hours when he had been trained and warned not to; the mechanism of the accident was inexplicable on any basis other than negligence on the part of CD; there had been an agreement between the workers on site not to near miss each other following the sacking of a previous colleague who had been involved in an accident, so that management was unaware that AB was working contrary to agreed procedures; the HSE was basing its factual case primarily on the evidence of CD who was directly responsible for the death; whilst the company accepted it had fallen below the required standard it had not fallen far below it.
Following a four day Newton Hearing at the St Albans Crown Court HHJ Bright QC ruled that the breaches were a significant cause, in the sense that they were a more than trivial or negligible cause, but not the only cause of the death and that they had been longstanding. However, none of the other aggravating features were present. Where there was a conflict between the evidence of CD and the site manager, whom CD had accused of instructing the employees not to near miss each other, the Learned Judge preferred the evidence of the site manager. Whilst the Learned Judge was unable to come to a conclusion precisely how the accident had happened it was in his view inexplicable. Responsibility for the accident remained at site level.
The company had very substantial mitigation including an excellent record and a demonstrable commitment to health and safety across its 200 sites. In the aftermath of the accident there had been 42 inspections by HSE of various sites operated by the company, none of which had revealed anything of significance. The company had immediately reviewed and amended its procedures, instructed outside consultants to advise at board level and invested in the development of new technology including an automatic braking system for mobile plant activated whenever a pedestrian came within a certain radius.
The company retained full credit for its guilty pleas because there were important issues that needed litigating and the HSE had not proved all the aggravating features for which it had contended. Taking into account the current Sentencing Guideline the appropriate fine after trial would have been £300,000; because of the guilty pleas the fines would be £200,000 in total. The Learned Judge also reduced the costs sought from £84,000 to £65,000 to reflect the fact that whilst the investigation costs were in the order of £40,000 the prosecution had not succeeded on every point at the Newton.
Although AB had been working on the apron outside the permitted hours and it was impossible to discern how CD had failed to see him the breaches were a significant cause of his death. Following Polyflor employers have to be aware that employees might disobey instructions, thereby endangering their own safety, and take this into account when drafting their policies. Although there were a number of causes of the accident including human error or culpability the breaches were a more than trivial or negligible cause. This is a reminder that duty holders have to anticipate that employees may well behave in a foolish, reckless and heedless manner.
However, because there were issues that needed litigating, including the degree of the company’s culpability, and because the company was successful on many of those issues, the company lost no credit. Each case is fact specific. However, those who defend should not be reluctant to face a Newton Hearing in appropriate cases.
The company has a turnover of circa £100,000,000. Under the proposed guidelines it would be categorised as a large concern. The company’s culpability would be medium because the company had not fallen far below the required standard. However, because the seriousness of the harm risked was death, the breaches were a significant cause of the death and the likelihood of death being a consequence of the breaches was high, the offences would be placed in the highest harm category.
For a large concern offences of medium culpability but in the highest harm category would lead to a starting point after trial of £1,300,000 and a sentencing range of £800,000 to £3,250,000.On the facts of this case, the fine would be at the very minimum in excess of £500,000. Therefore, for large concerns the proposed guidelines will lead to a massive increase in the levels of fine.