Health and Safety – November/December 2018Print publication
Almost three years on from the new sentencing guideline and £1 million-plus fines continue to bite
Bus company Midland Red (South) Limited was fined £2.3 million following a collision in which two people were killed and others were seriously injured. An investigation found that the 77 year old bus driver had put his foot on the throttle believing it to be the brake. The company dealt inadequately with numerous complaints about his driving and ignored warnings to ensure he reduced his working hours due to the effect of fatigue on his standard of driving. The driver was not fit and capable of undertaking his role and the company was in breach of its duty of care to passengers and members of the public. It was in breach of its own policies.
Southern Gas Networks plc was fined £1.2 million (and ordered to pay costs of almost £19,000) after two of its employees were injured, one of them suffering severe burns, during the repair of a damaged gas main. An investigation by the Health and Safety Executive (HSE) found that the company had failed to adhere to its own procedures or recognised safe systems of work. The construction company that had caused the damage had not followed safe digging techniques when excavating around the pipeline and was fined £60,000 (with costs of over £12,000).
The Atomic Weapons Establishment was fined £1 million (and ordered to pay costs of over £26,000) after one of its employees was injured in an electrical incident. The Office for Nuclear Regulation’s Deputy Chief Inspector and Director of Operating Facilities said: “This related to a conventional safety hazard and should have been avoided – and indeed would have been – had the right procedures and processes for safety been in place”.
Application of gross negligence manslaughter sentencing guideline
The new definitive sentencing guideline for gross negligence manslaughter came into effect on 1 November 2018 and has been applied in two recent cases.
In the first case, a farmer was sentenced to four and a half years’ imprisonment for gross negligence manslaughter and 10 months’ imprisonment for further health and safety offences (to run concurrently) after a volunteer at his farm died instantly when her hair and clothing became trapped in the Power Take Off (PTO) shaft of an old milling machine. The guarding on the PTO shaft was “utterly appalling” and the farmer’s “basic approach to health and safety showed a flagrant disregard for regulations”.
In the second case, the owner and manager of a takeaway were sentenced to two and three years’ imprisonment respectively for gross negligence manslaughter, plus a total of 8 and 10 months’ imprisonment respectively for health and safety and food offences (all to run concurrently), following the death of a teenager from an allergic reaction to nuts. She had specified her allergies in a note with the takeaway order, which was ignored. There were no appropriate systems or conditions in place to protect customers with known allergies.
As we have noted previously, the consultation paper for the draft sentencing guideline said that the aim was to regularise practice rather than substantially alter it, other than in the case of higher culpability offences arising from health and safety breaches where it was anticipated that sentences would rise. The new guideline is a further indication of the increasingly tough line being taken when it comes to health and safety breaches. While the focus tends to be on the employer as principle dutyholder, it is important to remember that directors, managers and others are also very much in the firing line. It is never going to be possible to eliminate the risk of harm entirely, but the current sentencing climate should bring home the message to employers and management that health and safety is a priority and there are steps that can be taken to minimise exposure.
In related news, a construction site manager has lost his appeal against conviction for gross negligence manslaughter (for which he was sentenced to four years’ imprisonment) following the death of a worker in a trench collapse . At the close of the prosecution case, the appellant had submitted that there was no case for him to answer on the count of gross negligence manslaughter because there was no evidence that he had ever witnessed a trench in an open and dangerous condition, no evidence that he ever saw anyone working in the trench which was not battered (i.e. sloped), and there was a site foreman present at all times. This was rejected by the judge, who held that there was sufficient evidence upon which a reasonable jury, properly directed, could convict the appellant. On appeal, the Court of Appeal was in no doubt that the judge was right to leave the case to the jury. There was evidence from which the jury could conclude that the appellant was actually aware of the method of excavation and that it was dangerous.
In reliance on a previous Court of Appeal decision, the appellant also appealed on the ground that the judge had erred in law in directing the jury that they were entitled to consider what the appellant ought to have known about the way in which the trenches were being dug on site at the time of any alleged breach of duty by him. The Court of Appeal dismissed the appeal. The factual matrix in this case was that it was a question of ‘when’ not ‘if’ the trench would collapse, and this was or should have been apparent to anybody. Consequently, there was reasonable foreseeability of serious and obvious risk of death to anyone in or near the trench. The evidence simply did not permit the appellant to argue that, but for the trench collapse, no objective observer would have been aware from the facts available to the appellant at the time that there was a significant risk of death arising from his breach of duty.
HSE releases annual injury and ill health statistics
The HSE recently published its annual statistics showing that 1.4 million workers were suffering from work-related ill health and around 555,000 from non-fatal injuries in 2017/18. Construction and agriculture are among the higher risk industry sectors.
Among other things, the rate of self-reported work-related stress, depression or anxiety has shown signs of increasing in recent years. The HSE recently launched its Talking Toolkit to help prevent work-related stress, as part of its ‘Go Home Healthy’ campaign.
Government to take forward all recommendations in Hackitt Review
On 18 December 2018, the government announced the introduction of a tougher regulatory system for building safety, including taking forward all of the recommendations in Dame Judith Hackitt’s review of building regulations and fire safety which was published in May 2018. The government has published an implementation plan setting out its programme of work. See the foreword on pages 6 and 7 and the next steps section on pages 32 and 33 of the document. Among other things, the government has also published at the same time a call for evidence to inform a full technical review of the building regulations fire safety guidance, known as Approved Document B (fire safety), and the response to its consultation on proposed amendments to Approved Document B on restricting the use of assessments in lieu of tests (known as ‘desktop studies’). See the amendments to the guidance and the explanatory circular letter. The amendments take effect on 21 January 2019.
Regulations giving effect to the ban on the use of combustible materials on the external walls of high-rise residential buildings, as well as new hospitals, residential care premises, dormitories in boarding schools and student accommodation over 18 metres come into force on 21 December 2018. Over the next few months, the government will be launching a broad consultation on the new regulatory framework. It will be establishing a Joint Regulators’ Group to trial elements of the new regulatory system ahead of any new proposed legislation. Walker Morris will continue to monitor and report on developments.
 R v Winterton,  EWCA Crim 2435
Contains public sector information published by the Health and Safety Executive and licensed under the Open Government Licence.