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Health and Safety – December 2016/January 2017

Print publication

31/01/2017

Including sentencing and recent cases, HSE Health and Work Strategy, food and drink advertising and the Product Liability Directive.

Sentencing

The Court of Appeal dismissed an appeal by the UK subsidiary of global energy corporation ConocoPhillips against the £3 million fine it received in February 2016 for health and safety breaches in relation to three major gas release incidents on a North Sea platform owned and operated by the company [1]. The gas was brought into dangerous proximity to the 66 people working on the platform. Key points are:

  • The company was a very large organisation and the sentencing judge was rightly conscious of the need for a fine to be large enough to bring home a message to directors and shareholders as to the company’s health and safety responsibilities (that message is applicable in all cases but a poor safety record will aggravate the position – in this case, one of the mitigating factors was the company’s excellent safety record).
  • The company was extremely large and with extensive available assets – if the new sentencing guidelines were applied, the company would easily satisfy the definition of a “very large organisation”.
  • There was a trend in sentencing practice prior to the creation of the new guidelines of an increase in levels of sentencing and recognition of the need to reflect assets available to large and very large organisations so as to produce a fair and proportionate sentence – the new guidelines are a continuation of that process.
  • The sentencing judge in this case did not apply the new guidelines (which came into force between the hearing of submissions and the passing of sentence) – the Court doubted that this approach was correct, as the guidelines came into effect on 1 February 2016 (regardless of the date of offence) and sentence was passed after that date. It would be unfair, however, to base the Court’s decision on the new guidelines, in view of the position adopted by the parties and the judge.
  • Adopting a pre-guideline approach, the Court did not consider that this level of sentencing in a serious case, both in terms of culpability and harm, could properly be described as manifestly excessive – it fell high up the scale of culpability and the level of harm which might foreseeably have been caused was very significant.
  • A £5 million fine (the total level the sentencing judge would have imposed before mitigation and full credit for an early guilty plea) was significant in real terms, but only represented about 0.1% of the company’s turnover for the year ending 2014 and about 1.6% of the loss made in that year – that gave some perspective of the impact of the fine on the company.
  • The company was fortunate to have been granted full credit for the guilty plea – the Court considered 25% to be the appropriate level given that the plea was only tendered at the first hearing before the Crown Court, and not when the matter came before the Magistrates’ Court.
  • By reference to the new guidelines, this was a case of high culpability, since the company fell far short of appropriate standards. There was a serious and systemic failure to address risks to health and safety, persisting over a period of time. As to harm, the Court considered that the case fell within category 1 as there was a high likelihood of serious injury or death being caused and a large number of workers were exposed to that risk. The combination of high culpability and category 1 harm would for a single offence in the case of a large organisation (turnover £50 million and over) lead to a starting point of £2.4 million, with a range of £1.5 to £6 million. Since the company exceeded the threshold for large organisations by a huge margin, it would be necessary to move well beyond that range to achieve a proportionate sentence.
  • It was obvious that if the guidelines had been applied, no tenable arguments could have been raised on appeal (even allowing for the available mitigation and credit for a guilty plea) that the sentence imposed was manifestly excessive.

A family-run business in the iron industry had its £160,000 fine for health and safety breaches halved on appeal [2]. The company was fined after a maintenance worker slipped and put his foot through an asbestos sheet during repairs to a roofing panel, potentially exposing employees working underneath to debris and asbestos fibres. The sentencing judge assessed the culpability under the new guidelines as medium due to the failure to put in place the necessary health and safety measures. The level of harm was assessed as level A and fell into category 2 on the basis that there was a risk of death or very serious injury (this was balanced against the fact that no harm was actually caused). The company fell into the medium category given its annual turnover of £32 million in that year. The sentencing judge took a starting point of £240,000 under the guidelines and gave a full one third deduction for an early guilty plea, producing a fine of £160,000. The company appealed. Key points are:

  • The Court of Appeal noted that the sentencing judge did not make any downward adjustment to the starting point of the fine, despite the fact that there were no aggravating factors as such and significant mitigating factors (including the firm’s exemplary record over 50 years of trading) which should have driven the starting point down.
  • It was highly relevant to have regard to the company’s small operating profit. The fine represented 23 per cent of the company’s operating profit. The Court had been informed that, since the June referendum to leave the European Union, the trading conditions for companies like this one, which employs 240 people, had not been good.
  • Taking all of these factors into account and stepping back, the Court considered that £120,000 was a more appropriate starting point. Discounting by one third for the early guilty plea produced a fine of £80,000.

It is notable that the maintenance supervisor in the above case had not undergone any training in relation to his supervisory role, and none of the employees had received training regarding working at height. This has been a recurring theme in a number of recent cases. For example:

  • In a case brought by Leicester City Council’s Public Safety Team, high street chain Wilko was fined £2.2 million after an employee suffered spinal injuries when a cage of paint tins fell on top of her. The court heard, among other things, that employees were not provided with adequate training or supervision.
  • Jaguar Land Rover was fined £900,000 after a worker suffered life-changing injuries on the production line of one of its plants. The Health and Safety Executive (HSE) investigation found that the company had failed to ensure that the driver of the car involved in the accident was familiar with procedures.
  • The national truck, bus and plant division of Volvo was fined £900,000 after a worker suffered head injuries in a fall. The HSE investigation found that, at the time of the incident, Volvo UK had not trained staff to select, inspect and use access equipment for work at height.
  • A shipbuilder was fined £400,000 after a worker suffered serious injuries to his hand while carrying out repairs. In a statement, the HSE said that the defendant “had developed a Health and Safety Management System (HSMS) but failed to ensure that the system had permeated all parts of the organisation. If the HSMS had been followed this accident may not have occurred…

These recent examples underline the importance for businesses of ensuring that adequate training and supervision is in place and that systems and procedures are communicated effectively – having a written policy is not enough. The HSE has produced guidance for organisations of all sizes on their health and safety responsibilities.

It was recently confirmed in the Scottish courts that the new sentencing guidelines (issued by the Sentencing Council of England and Wales) can be used as a ‘cross check’ in cases north of the border [3].

HSE launches new Health and Work Strategy

In December, the Minister of State for Disabled People, Health and Work, Penny Mordaunt MP, helped launch the HSE’s new Health and Work Strategy.  Priorities are work-related stress, musculoskeletal disorders and occupational lung disease.  The HSE has published draft plans for health and safety in 19 different sectors, from construction and manufacturing to public services and utilities.

New rules on food and soft drink advertising to children

Following a public consultation, the Committee of Advertising Practice announced the introduction of “tough new rules” from 1 July 2017 banning the advertising of high fat, salt or sugar food or drink products in children’s media (targeted at under-16s). The rules apply to all non-broadcast media, including social media.

European Commission launches consultation on Product Liability Directive

The European Commission launched a three month public consultation in January on the rules set out in the Product Liability Directive (Directive 85/374/EEC) on liability of the producer for damage caused by a defective product.  Part 1 of the Consumer Protection Act 1987 (CPA) implements the provisions of the Directive into UK law and imposes a strict liability on the producers of defective products for the damage caused by those defects.  In an important recent case [4], the English High Court has clarified the meaning of ‘defect’ under the CPA, a decision likely to be welcomed by manufacturers.

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[1] R (Health and Safety Executive) v ConocoPhillips (UK) Ltd [2016] EWCA Crim 1594
[2] R v MJ Allen Holdings Ltd [2016] EWCA Crim 2142
[3] Scottish Power Generation Ltd v HM Advocate [2016] HCJAC 99
[4] Wilkes v DePuy International Limited [2016] EWHC 3096 (QB)

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