January 2014 Health and Safety Legal Update:

Interesting Pattern Emerges in Corporate Manslaughter Cases:

The Corporate Manslaughter Act 2007 has now been in place for 7 years. This legislation is in place to punish organisations in which serious management failures have resulted in a fatal incident.

The forth successful conviction since this law was implemented in the UK, was a Northern Ireland company. 

Norman Porter was killed when he was drawn into a animal feed mixer, while he was working for J Murray and Sons Ltd, in February 2012.

His employer was fined £100,000 with costs of £10,450. The actual costs to this company are likely to be significantly more though due to their solicitors costs and other uninsurable indirect costs associated with this case.

The fifth conviction, under the corporate manslaughter, was the Princes Sporting Club Limited.

An 11 year old girl was on a banana boat under this companies charge. The girl fell off the banana boat and then was struck be a speedboat.

The judge imposed a fine of £135,000. In this case judge, Alistair McCreath was so appalled with the health and safety standards at the Princes Sporting Club, that he imposed a fine knowing that it would make the company insolvent. He said, "I propose to fine the company every penny that it has!"

The highest fine imposed so far for corporate manslaughter is still Cotswolds Geotechnical, which was £385,000. This company had ignored advice from the Health and Safety Executive, a number of times requiring them to appropriately shore up excavations in which their employees had to enter to take samples. 

Subsequently an employee was killed when one of those excavations collapsed, while he was in it. 

Ignore advice from the HSE and other H&S professionals at your peril!

Corporate Manslaughter cases are different to any other health and safety cases. The Police generally investigate and prosecute them, with the assistance of the Health and Safety Executive. All other serious health and safety breaches are  usually investigated and prosecuted by the relevant enforcement authority (HSE, Local Council or Fire Service) with assistance from the police, if required.


There has become an interesting pattern in these corporate manslaughter cases. 

All but one of the companies pleaded guilty, but only did so when other prosecutions, under the Health and Safety at Work Act against individual directors were dropped or when there was no realistic prospect of a defence against the case.

The pattern that has emerged is the following:

  • Prosecutions tend to be of small, owner-managed companies.
  • Convictions by guilty plea seem likely to continue if the alternative is the risk to one of the owners of personal conviction and imprisonment.
  • Fines remain well below the lower threshold of £500,000 suggested by the Sentencing Guidelines Council.

http://www.bbc.co.uk/news/uk-northern-ireland-24539809

http://www.hseni.gov.uk/news.htm?id=14815 

Systematic Failings Led to Forklift Truck Fatality: 

Mapei UK Limited (picture above), one of the largest of Adhesive Manufacturers supplying the construction industry, has been fined after a 43 year old worker was pinned up and impaled against a fork lift truck by a reversing lorry at the Halesowen site.


A Health and Safety Executive (HSE) investigation revealed significant safety failings by Mapei UK Ltd. HSE found they had failed to segregate pedestrians and vehicles adequately in order to organise, supervise, manage and run their transport yard.

The yard did not have defined traffic routes or walkways, there were no ground markings and the yard was open with no physical restrictions on movement.

A system was in place to restrict vehicle movement whereby all drivers should hand in their vehicle keys on arrival, but this didn’t apply to all vehicles. In this case, the lorry driver had not handed his keys in, meaning he did not have to seek Mapei UK Ltd’s authority or assistance when moving his vehicle.

Mapei UK Limited of Steel Park Road, Halesowen, pleaded guilty to breaching Sections 2(1) and 3(1) of the Health and Safety at Work etc. Act and was fined a total of £173,332. The amount of costs to be paid will be agreed at a later date. 

http://www.expressandstar.com/news/2013/12/06/company-fined-173000-over-forklift-death-of-worker/  

Speaking after the hearing, HSE inspector Mahesh Mahey said,

“Numerous health and safety failings by Mapei UK Ltd led to this tragic incident in which Mr Davies needlessly lost his life."

“The dangers associated with vehicle movements are obvious and have been highlighted by HSE for many years.

“There were long-term, systematic failings by the company to adequately assess the risks and take sufficient control measures to ensure the transport yard was operated without posing a risk to the safety of those working there."

“Since Mr Davies’ death, Mapei UK Ltd has implemented more effective controls of vehicle movements, limiting movements to one vehicle at a time and installing a traffic marshal to supervise vehicle manoeuvres."

There are minimum standard now laid down in various HSE publications detailing how vehicle and pedestrian movement, can be kept separate and reversing activities can be minimised and controlled.

http://www.hse.gov.uk/pubns/priced/hsg136.pdf

http://www.hse.gov.uk/pubns/priced/hsg144.pdf

Wallett HSE Services Ltd. help clients to devise improvements in workplace layouts, associated procedures and policies, which will enable clients to comply with the law in respect of workplace traffic movement.

These guidelines should be followed:

  • Separate Pedestrians from vehicle using paths by marking or putting up barriers/ fencing and appropriate signage.
  • Avoid reversing by using one way systems and turning points, if at all possible.
  • If reversing is unavoidable, this must be controlled using a trained and competent banksman or reversing assistant.
  • Pedestrian and vehicle entrances/ exits to/ from buildings should usually be separate. 
  • Vehicles must slow right down and sound horns, when entering or exiting buildings or different areas.
  • Convex mirrors can be installed to improve visibility around corners.
  • Reduce speeds by imposing speed limits and if necessary physically reducing the maximum speed of internal vehicles, such as Fork Lift Trucks.
  • High visibility clothing will only reduce the risk of a pedestrian being struck by vehicles and should never be used as the only safeguard.
  • Lighting must be appropriate at all times of activity in the workplace, poor lighting or dark areas increases the likelihood of an incident.
  • Reversing alarms should be installed on all vehicles used in the workplace.
  • Flashing amber beacons also assist in making vehicles like fork lift trucks more visible.
  • Traffic calming measures, such as speed bumps, will help slow vehicles down.
  • Use of automatic barriers will enable sites to only allow authorised vehicles into the work area.
  • When pedestrians do have to cross vehicle routes pedestrian crossings should be marked, signed and used.
  • Areas in which vehicle reversing or other vehicle movements take place should have access limited to essential personnel only.
  • The whole work place should be the subject of a site specific risk assessment on workplace transport, which should identify whether current control measures are adequate or additional safeguards are necessary. 
  • Managers and supervisor must police and enforce safe systems of work and ensure procedures are being fully implemented.
  • Placing substantial 
  • If advice (verbal or written) or enforcement action has been taken against your organisation in relation to this issue (by the HSE or local EHO) and an incident subsequently occurs related to poor control, consequences will be much more serious. This means in the event of an incident, once advice has been given, fines, penalties or other punishments, would be significantly higher. (See example of Cotswold Geotechnical in the other part of this article in relation to corporate manslaughter.)

 

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