legal update 2018
TRANSCRIPT
London Health & Safety Group
Legal Update 2018
Kizzy Augustin, Russell Cooke LLP
16 April 2018
Agenda
Where are we with the 2016 Sentencing Guidelines?
Cases of interest - big names, big fines……
Update on Corporate Manslaughter
Changes in H&S for 2018?
Understanding ISO 45001
Enforcement Notice appeals?
Consultation on Gross Negligence Manslaughter
Developments on FFI challenges?
Where are we with the Sentencing Guidelines
2016?
Definitive guidelines
implemented since 1 Feb
2016 – what have we seen in
the last two years?
Step 1 - Culpability
Level of culpability extremely important
Issues relevant to culpability
High
Failing to put in place measures recognised as standards in the industry / sector
Ignoring concerns raised by employees or others
Failing to make changes after prior incidents
Allowing breaches to subsist over a long period of time
Low
Significant efforts were made to address risk but inadequate on this occasion
No prior event or warning indicating a risk
Step 2 - Categories of harm
Seriousness of harm risked + likelihood of harm = Harm
Categories 1-4 (NB: Risk of harm – not actual harm)
Seriousness of harm risked classified as:
•Death
•Physical or mental impairment resulting in lifelong dependency
•Health condition resulting in reduced life expectancy
Level A
•Physical or mental impairment not amounting to Level A, which has a substantial and long-term effect on the sufferer’s ability to carry out normal day to day activities or on their ability to return to work
•A progressive, permanent or irreversible condition
Level B
•All others not in A or B Level C
Categories of harm
Establish Harm category from Matrix
Starting Point / Range of Fines
Example - Large Organisations……
Top 5 Fines – so far!! Company Fine Fatal/Non- fatal
Merlin Attractions £5million Non-fatal but significant injuries
Tesco Stores Ltd £5million Non-fatal and no injuries
Network Rail £4million Fatal
ConocoPhillips £3 million Non- fatal – no injuries
Cristal Pigment UK Limited £3 million Fatal
(*Pre Guidelines) Network Rail, Hatfield and Ladbroke Grove disasters
All c. £3 million Multiple fatalities, “very high culpability”
Merlin Attractions (Sept 2016)
Facts
In June 2015, passenger train on Smiler rollercoaster collided with
empty train
Operatives overrode system’s safety mechanisms to allow train to
proceed
16 passengers suffered physical and psychological injuries
Turnover: £385m (2015)
Fine
£5m
Network Rail (Sept 2016)
Facts
Former film actress killed when hit by train on pedestrian crossing
Pedestrians had 5 seconds of visibility of oncoming train but could
take twice that time to cross
Suggestion to impose speed restriction not implemented as
manager wanted time to consider it
Warning sirens recommended but also not implemented
Fine
£4m
Tesco Stores Limited (June 2017)
2016 – workman fell 30 ft through skylight (no RAMS)
G plea - £500k fine (HSWA offence)
2017 - joint prosecution (EA, Lancashire CC, United Utilities, Lancashire Fire and Rescue, Police)
Issue – Tesco’s failure to address fuel delivery system problem, inadequate alarm system, poor emergency procedures
Between 2 & 3 July 2014, approx. 23,000 litres of petrol escaped from tank at petrol station operated by Tesco:
Odours affected local residents health
Petrol entered local brook and river – killed fish/aquatic life over 6 miles downstream
G plea - £5million for HSWA offence, £3million for environmental
KFC (January 2017)
16 year old employee scalded across his arms after spilling boiling gravy out of microwave oven at Stockton branch in July 2014
Put paper towels over arms and was sent to hospital alone
Similar incident in December 2015 at another Stockton branch – more experienced employee scalded by hot gravy (third degree burns)
Neither employee used gauntlets / gloves to protect from injury
G plea x 2 (s. 2 HSWA) - £800k & £150k respectively, £18.5k prosecution costs
McDonalds (March 2018)
17 year old employee asked to direct traffic at drive thru at
Lakeside branch – complicated layout
Driver aggressively drove into employee – fractured his
knee.
Forced to give up boxing and potential construction career
2 other previous incidents within the past year
Thurrock Council – “did not contemplate that employees may
have been at risk from either an accidental or deliberate
collision” – lack of training
G plea - £200k fine, £26k prosecution costs, £1k
compensation to employee
Center Parcs (March 2018)
8 year old girl fell 8-10 feet from tree and broke her wrist
during organised activity in Woburn
7 rope ladders in use, when there should have been 2
No safety harness / instructor seeing to another child at the
time
Central Bedfordshire Council – inadequate risk assessments,
unsafe system of work and inadequate monitoring
G plea (HSWA offence) – £250k fine
plus prosecution costs of £14k
Southern Health NHS Foundation Trust (Oct 2017)
CQC prosecution – trust admitted it failed to provide safe care and treatments to its service users / patients and putting people at risk of avoidable harm
Incident – psychiatric ward in Winchester for mental health patients.
Many had climbed onto the roof to escape – in Dec 2015, one fell to the ground and sustained serious neck injuries (after previous absconding attempts)
Trust had been told to increase safety measures (e.g. block gaps in fencing, fitting anti climb guttering) but this had not been done. Lack of finances?
Further falls after this incident
G plea - £125k fine plus £36k prosecution costs
Shrewsbury & Telford NHS Trust (Nov 2017)
HSE prosecution
Breach of health and safety duty towards 5 patients who suffered fatal injuries following falls between June 2011 and November 2012
Judge’s comments:
“All organisations, public or private, are accountable under the criminal law…. public bodies are to be held equally accountable under the criminal law for acts and omissions in breach of Health and Safety legislation and punished accordingly”
they been a private company the fine would have been at least £1 million
reduced the fine by 50% (for being a public body and its financial circumstances)
G plea - £333,333 fine plus prosecution costs of £130k
JD Sports Limited (October 2017)
Company faced 6 offences following RRO investigation
at Dudley branch by West Midlands Fire & Rescue
Service:
Escape routes blocked by crates and stock
Preceded by pre-Christmas fire safety checks carried
out by the Fire Service
JD Sports ignored advice
G plea - £60k plus approx. £7,500 costs
Terrance Murray (Feb 2018)
Manchester scaffolder photographed by a member of
the public
Working on top of a scaffold at a height of 13 - 18
metres without edge protection or a harness connected
to the scaffold or building
HSE: employers had taken reasonable steps to avoid
working unsafely at height….’frolic of his own’
G plea – 26 weeks' imprisonment, suspended for one
year, and 100 hours of community service; plus costs of
£500 and a victim surcharge of £115 (section 7 HSWA)
What does it all mean?
Significant increase in fines / Very large companies fall outside the ranges in the Guidelines and “all bets are off” / ‘focus on ‘sector’ or ‘industry’
More individuals are likely to receive custodial sentences
Look at sentencing trends for each industry
What’s important?
Culture, Leadership from the top - Board level briefings & training
Incident Response Protocol – RIDDOR, Internal Investigation, response to FFI, response to section 20 interviews, interviews under caution, Enforcement Notices – post incident “legal” protective measures
The extent to which failures were systemic v. isolated
Safety management systems in place, robust and properly invested in
Role played by senior management and directors (pre and post-incident)
Corporate Manslaughter and Corporate
Homicide Act 2007
Prosecution must prove the way in which activities were managed or
organised:
Caused a person’s death;
Amounts to a gross breach of a relevant duty of care owed to
the deceased; and
Senior management’s role in the breach was a substantial
element in the breach
The jury may also
consider the extent to which the evidence shows that there
were attitudes, policies, systems or accepted practices within
the organisation that were likely to have encouraged any such
failure ... or to have produced tolerance of it.
Corporate Manslaughter
Martinisation (London) Limited (July 2017)
Both company and MD denied corporate manslaughter and H&S charges respectively in relation to the deaths of two employees:
Workmen moving heavy sofa onto balcony using ropes with Victorian railings for safety
Sofa fell after railings on the balcony gave way – employees fell to their deaths
Company - guilty of Corporate Manslaughter - £2.4m fine for both deaths and £650k for H&S breach
Martin Gutaj – guilty of health and safety breach - 14 month imprisonment for each death (concurrently) - and barred from being a company director for 4years.
Changes in H&S for 2018?
Changes in H&S for 2018
Understanding ISO 45001
Consultation on Gross Negligence Manslaughter
Enforcement Notice appeals?
Developments on FFI challenges?
Understanding ISO 45001 (2018)
Seeks to bring Health and Safety in line with its
Environmental and Quality Management
counterparts - harmonise standards on a global
basis
Builds on framework of OHSAS 18001
Audit and exploration of organisation’s ‘responsible’
procurement sources for products and services
3 year transition window
Why have ISO 45001?
Moral reasons:
Reduce the amount of work related injuries, occupational illness and fatalities
Business reasons:
Increase productivity / profitability
Retention of workforce / increase morale
Maintain reputation of the organisation
Legal reasons:
Avoid claims / prosecutions
Need for international / aligned management system standards
ISO45001
PLAN – DO – CHECK – ACT approach
Main changes:
Context of the organisation – wider issues
Worker involvement?
Procedures and Records – more about process, documented info
Leadership and Commitment
Different to OHSAS 18001?
Consultation on Gross Negligence Manslaughter
4 July 2017 – Sentencing Council announced consultation for guidelines on manslaughter convictions
E.g. Gross negligence manslaughter - carers who fail to protect victim from falls / employer who disregards safety of employees / medical practitioner falls below appropriate standard in treatment of patient
Average sentence for Gross negligence manslaughter is currently 5 years
Sentences likely to increase for gross negligence manslaughter offences – particularly if employer has had a “long-standing disregard” for employees’ health and safety, motivated by cost-cutting
Consultation closed on 10 October 2017 (with extensions)
Gross Negligence Manslaughter (2)
Court of Appeal in R v Rose [2017] EWCA Crim 1168
Optometrist who allegedly failed to perform her statutory duty to conduct an ear exam on 8 year old patient
Vincent Barker died five months after Rose failed to identify that he had swollen optic discs – a symptom of fluid on the brain during a routine eye test
Judge: “ not appropriate to take into account what the defendant would have known but for her breach of duty…”
High level of negligence in failing to identify defect – matter for regulator, not gross negligence manslaughter.
Was it reasonably foreseeable that in consequence of a negligent failure there was an obvious and serious risk of death, not of serious injury?
Enforcement Notice appeals?
Why appeal?
HSE v Chevron North Sea Limited (Feb 2018)
widened test to be applied on appeal against enforcement notices served by HSE / Local Authority inspectors
Can Tribunal take into account evidence which was not known and could not reasonably have been known to the inspector at the time he issued the notice?
“When the inspector serves the notice, section 22 makes clear that what matters is that he is of the opinion that the activities in question involve a risk of serious personal injury..…However … when it comes to an appeal, the focus shifts. The appeal is not against the inspector’s opinion, but against the notice itself …. I can see no good reason for confining the tribunal’s consideration to the material that was, or should have been, available to the inspector."
FFI challenges?
HSE 'of the opinion that there is or has been a
contravention of health and safety law that requires him
to issue notice in writing to that effect‘
OCS Group – settled judicial review of FFI notice out of
court in March 2017 and had notice of contravention
withdrawn
Review of FFI appeal process – changed in September
2017 to an ‘independent’ process:
2 members experienced in health and safety matters,
plus a lawyer as chair
Will this result in more challenges of FFI notices?
Questions?
Contact details
Kizzy Augustin, Partner
T: +44 (0) 20 3826 7302