serious roll cage accident/prosecution...1. accident offence contrary to: sections 2 (1) and 33...
TRANSCRIPT
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Serious Roll Cage
Accident/Prosecution
Presented by Govind Mandora Team Manager
Mina Jotangia
Environmental Health Officer
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Accepted practices
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Today’s Talk
Very serious accident to a Wilko
employee
Our Investigation
Court Proceedings
2016 Sentencing Guidelines
Media and follow-up
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Wilko Stores Limited
A ‘very’ local Company
JK Wilkinson opened his first store at
Charnwood Street, Leicester in 1930
Now grown to over 500 stores
Company turnover - £1.46billion
Now a ‘very’ LARGE Business
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How did we get involved?
RIDDOR Notification
Accident Investigation by
Mina Jotangia & Gurdeep Dosanjh
Making safe
Evidence
IUC-Offences
Summons
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The RIDDOR Report
The report stated that IP had a major injury to her
trunk and described accident as:
‘Whilst manoeuvring a cage stocked with tins of
paint from the lift in the goods inwards area of the
store, the cage toppled and team member ended
up beneath the cage’. Supervisor was pushing the
heavy rollcage , whilst Miss Collins was pulling it
over an uneven ledge created by the lift floor not
levelling with Good-in Floor’
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The Injured Person –
Corisande Collins
20 years old female
Part-time employee since 1st October 2011
An undergraduate student at University of
Northampton
Very little knowledge and experience of
working in warehouse and retail
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Liaising with Corisande &
Family
Very emotional
Respecting Corisande’s & Family time and
personal space
Clear explanation & why we needed to talk
to Corisande
S9 Statements - Corisande & mum
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The Injured Person –
Work Duties/Training
Job involved moving stock in cages between
floors using a lift
Training was induction, watching DVD; H&S
multiple choice test
Shadowing a ‘Buddy’ for a couple of weeks
Practical roll cage training not part of their role
(S9 statement from Buddy very important)
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Causation Factors
Individual- Lack of training and
supervision
Load - Roll cage was top heavy and
had a high centre of gravity
Equipment - Lift had a small ledge and
uneven with the shop/warehouse floor
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January 2014 Officers Revisit
No stock/cage between the blue tape and the
lift doors
Lines on the lift door must be within the
10mm tolerance level, if not the send it to the
other floor and then recall. If still not level
then inform manager
LCC officers requested warning sign affixed
in Lift
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1. Accident Offence
Contrary To: Sections 2 (1) and 33 (1)(a) of the Health and Safety at Work etc Act 1974
You did fail in your duty to ensure so far as was reasonably practicable, the health, safety and welfare at work of all your employees, in particular the provision and maintenance of plant and systems of work that were so far as was reasonably practicable safe and without risks to health, in that:
The floor of the main goods and passenger lift was not level with the shop floor; and
On 22nd August 2013 an incorrectly loaded roll cage was manoeuvred out of the main goods and passenger lift and fell onto Corisande Collins causing injury
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2. Training Offence
Contrary To: Sections 2 (1) and 33 (1)(a) of the Health and Safety at Work etc Act 1974
You did fail in your duty to ensure so far as was reasonably practicable, the health, safety and welfare at work of all employees, in particular the provision of such information, instruction, training and supervision as is necessary to ensure so far as was reasonably practicable to ensure the health and safety at work of your employees, in that:
Employees were not provided with information, instruction, training and supervision in relation to safe use of roll cages; and
Employees were not provided with information, instruction, training and supervision in relation to safe use of the main goods and passenger lift
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3. Risk Assessment Offence
Contrary To: Regulation 3(1)(a) of The Management of Health and Safety at Work Regulations 1999
You did fail in your duty to make a suitable and sufficient assessment of the risks to the health and safety of his employees to which they are exposed to whilst they are at work, in that:
The ‘Generic Risk Assessment for Escalator and Passenger Lift’ dated 16th April 2013 did not contain suitable and sufficient control measures for managing the hazard identified as ‘when the lift does not level with the floor’
The ‘Generic Risk Assessment 24 for Safe Use of Roll Cages’ dated 26th January 2010 did not contain suitable and sufficient control measures for managing the hazard of manoeuvering roll cages on uneven surfaces
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4. Manual Handling Offence Contrary To: Regulation 4(1)(b) of the Manual Handling Operations Regulations 1992
You did fail in your duty to make a suitable and sufficient assessment of manual handling operations to be undertaken by employees, to take appropriate steps to reduce the risk of injury to employees arising out of undertaking manual handling operations to the lowest level reasonably practicable and to take appropriate steps to provide employees with information on the weight of each load and the heaviest side of any load whose centre of gravity is not positioned centrally, in that:
An assessment was not carried out for manual handling of roll cages, having regard to the factors which are specified in Column 1 of Schedule 1 of the Manual Handling Operations Regulations 1992 and considering the questions which are specified in the corresponding entry in column 2 of this Schedule, in particular there was inadequate regard for the factors; the tasks, the loads, the working environment, individual capability and other factors.
Employees undertaking manual handling of roll cages were not provided with general indications or precise information on the distribution of loads throughout the roll cage.
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Primary Authority
2013 - PAP with Bassetlaw DC at time of investigation
13 Jan 2016 - Bassetlaw DC prosecuted Wilko following a FLT fatality and Wilko withdrew from PAP with Bassetlaw DC
March 2016 – Wilko formed PAP with Milton Keynes Council
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Wilko Attitude
During investigation was ‘reactive’ but
co-operative
No immediate action was taken until
interventions by EHOs
Lift not levelling was not addressed for
over 6 months
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Prosecution Bundle
Cost schedules on Excel for each
Officer
To start referencing Exhibits & scan
To create file of Exhibits – used and
unused and Chronologically order
Statements: Investigation
Be careful who provides S9
Wilko requested written IUC
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That was then – THIS IS NOW!
Wilko/Milton Keynes PAP have :
Improved SSW for use of roll-cages
Employed Regional Managers and H & S Advisors
(1 of them is EHO)
Booklet & Notice Board to improve employee
engagement
Training -practical roll cage training, Albi Campaign
Lift levelling marks identify safe levelling
Improved Employee engagement, compliance
and training
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Offences in Summary
S.2(1) Health & Safety at Work Act
(Un-safe life/In-correctly loaded roll cage);
S.2(1) Health & Safety at Work Act
(Lack of information, instruction & training)
Reg 3(1) Management Regulations
(No suitable & sufficient risk assessment); &
Reg 4(1) Manual Handling Operations Regs
(Lack of risk assessment/controls)
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Case Management
Get Senior Management/Members on
board
Legal Services
Appointing Counsel
Be prepared to be challenged
Costly exercise
Communications/Media
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Enter our Barrister!
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Sentencing Guidelines
https://www.sentencingcouncil.org.uk/wp-content/uploads/HS-
offences-definitive-guideline-FINAL-web.pdf
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Sentencing Guidelines
Under Sec 120 of the Coroners and Justice Act
2009, the Sentencing Council issues this
definitive guideline.
It applies to all organisations and offenders aged
18 and older, who are sentenced on or after 1
February 2016, regardless of the date of the
offence.
Replaces Friskies schedule
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Sentencing Guidelines
Separate guidelines for corporate manslaughter
Sets fine ranges from £180K to £20million.
Do not get confused
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Sentencing Guidelines
Culpability
Seriousness of Harm
Likelihood of Harm
Harm Category
Type of organisation
Level of Fine
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Sentencing Guidelines
Breach of duty of employer towards
employees and non-employees Breach of
duty of self-employed to others, ie Section
2 or 3 breaches
Breach of Health and Safety regulations
Triable either way
Offence range: £50 fine – £10 million
fine
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Sentencing Guidelines
Culpability
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Sentencing Guidelines
Culpability
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Sentencing Guidelines
Harm
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Sentencing Guidelines
Very large organisation
“Where an offending organisation’s turnover or
equivalent very greatly exceeds the threshold for
large organisations, it may be necessary to move
outside the suggested range to achieve a
proportionate sentence.”
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Sentencing Guidelines
Fine
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Sentencing Guidelines
Wilko Case
Culpability - HIGH
Wilko did not meet recognised h&s standards
as they had unsuitable risk assessments
Allowed unsafe roll cage loading/movements
Used untrained staff asked to carry out tasks
Allowed breaches over a sustained period
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Sentencing Guidelines Contd…
Wilko Case
Seriousness of harm – LEVEL A
Corisande was now paralysed below her waist
Corisande had a lifelong physical impairment
Corisande now needed had third party care for
basic needs
Wilko did not dispute this at Court
.
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Sentencing Guidelines Contd…
Wilko Case
Likelihood of harm - MEDIUM
Lift levelling was a known problem and had
been reported but not rectified adequately
Lift overloading was allowed practice that
meant staff had to pull cages out of the lift
routinely
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Sentencing Guidelines Contd…
Likelihood of harm – MEDIUM contd…
The cages at the store were also found to
incorrectly loaded increasing the risk of them
toppling over
In these circumstances any employee could
have suffered an injury as Corisande from the
same activity
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Sentencing Guidelines Contd…
Wilko Case
Harm Category – CATEGORY 2
The offences are considered to be a
significant cause of actual harm
Organisation – VERY LARGE
If large organisation (ie with turnover of £50
million or more), the starting point for
sentencing is a fine of £1.1 million with a
range of £550,000 - £2.9 million
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Aggravating Factors
13/1/16 Bassatlaw DC fatality prosecution
highlighted unsafe practices, poor RA’s
Breaches continued over a sustained period
Level of harm – Life-changing injuries
Failure of store management to supervise,
monitor or take remedial action
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Mitigating Factors
Wilko assisted with the investigation
Controls now in place but this was months
after the accident to Corisande, ie noted on
5/9/13 but not actioned fully until 17/1/14
Guilty pleas entered at first time of asking
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Court Proceedings - Key Dates
12/4/16: Summons served on Wilko
16/6/16: Guilty pleas entered by Wilko
8/12/16: Sentencing Hearing
11/1/17: Wilko sentenced – 42 days to pay
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Proceedings
Wilko pleaded guilty to all 4 Offences at Mags Court
Referred to Crown Court for Sentencing
Wilko appointed expert re. Lift levelling issue
LCC appointed HSE expert who stated:
“roll cage toppled due to an overturning movement”
due to:
• The high centre of gravity of its contents
• The discontinuity between platform and landing
level
• Potential load shift of the roll cage contents
• Pushing the trolley, as the front of the roll cage
dropped onto the landing level
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Case Law
Our Barrister said in his sentencing summary:
A fine that is intended “to bring the message
home to the directors and shareholders of
offending organisations”, as stated by the
Judge in the prosecution of Thames Water
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Prosecution Fines & Costs
Total Fine: £2.2million fine!
Costs: £70,000
* All LA costs awarded
* £28,000 in barrister fees
At the time this was the 2nd highest fine
(highest was Alton Towers prosecution)
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The Media Circus
Screen Shot from Daily Mail online:
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The Media Circus
Screen Shot from BBC News online:
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The Media Circus
Screen Shot from Leicester Mercury online:
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The End?
Screen Shot from Leicester Mercury online:
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Lessons
Investigation
Evidence
PAP
Barrister
Defence
Media
Fines/costs
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Sentencing Guidelines –
1 Year one
Statistics show significant increases in fines
The largest fine in 2016 was two-and-a-half times the
size of the largest fine in 2015 and almost ten times
larger than the largest fine in 2014
Nineteen companies received fines of a million
pounds or more since the new guidelines were
implemented.
Only three £1million+ fines in 2015 and none in 2014
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Sentencing Guidelines –
1 Year one
£1million: DFS - Neck/Head injuries, r3 Mang Regs/S2
HASWA, £15k costs
£5million: Merlin (Alton Towers) – 5 seriously injured, s3
HASWA, £70K costs
£600k: Go Ahead London – Fatal fall, s3 HASWA, £79k
costs
£3million: Conoco – Gas leak, Offshore Installations Regs,
£159K costs
£900k: Jaguar - Crushing/Leg amputation, s2 HASWA £50k
costs
£950k: Kentucky Fried Chicken (KFC) - Arm scalding,
s2 HASWA, £19k costs
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Sentencing Guidelines –
Spot the difference
Merlin (Warwick Castle/Alton Towers)
2012: £350K fine plus £145k costs
Fatal fall from bridge - Mang Regs/HASWA
2016: £5million fine plus £70k costs
5 seriously injured - HASWA
Wilko
2016: £200k fine plus £200k costs
Fatality - HASWA
2017: £2.2million plus £70k costs
Life-changing injuries - HASWA, Mang/MH Regs
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Any Questions?
Presenters:
Govind Mandora Team Manager
Mina Jotangia Environmental Health Officer