Legal Update on Serious Health and Safety Offences

Three recent developments highlight key aspects of dealing with serious health and safety offences.

Jail Sentence for Company Director

The managing director of a waste and recycling company in Liverpool has been sentenced to eight months in prison for breaching Section 37 of the Health and Safety at Work Act (HASAWA) which covers offences linked to the consent of, or neglect by, any director, manager or similar company officer after a worker was fatally crushed by a baling machine’s hydraulic ram in 2010. His maintenance engineer and operations and safety manager were also given custodial sentences while the business was fined £700,000.

The victim was operating a baling machine which fed waste or recyclable material into a compaction chamber when it became blocked. The court heard that he had received little training and “clearly misunderstood how the machine worked, or the horrendous risk”. In attempting to clear a blockage, without turning the machine off, the victim entered it by crawling through a small opening. As he stood up and tried to clear the blockage, the machine automatically activated and he was crushed by hydraulic ram.

A joint investigation by HSE and Police found that the electrical safety interlock system that would have prevented workers from entering the machine while it was still connected to the power supply had been overridden two months earlier by the engineer after the circuit became damaged.

Deliberately interfering with a safety device (an offence against Section 8 of HASAWA) might seem to be an obvious offence easily avoided but how many times are venue fire doors propped open, keys left in unattended fork lift trucks, driver restraints not worn while they are clipped in behind the driver? The time between the offence and the conviction was largely down to appeals in which defendants variously attempted to claim no direct responsibility. However, the risk of a serious accident should have been obvious had there been basic monitoring and oversight in place which directors and managers have a legal duty to undertake. Arguing you did not know about a serious safety failing when you should have known is not a defence. It is worth considering when you next encounter a routinely wedged open fire separation door in a venue.

Legal Privilege

The basis of this concept is that a conversation between a client and their lawyer is legally privileged i.e. confidential and cannot be disclosed to other parties. Similarly if a company commissions an investigation into accident to gather evidence that may be part of their defence in consultation with a lawyer then that document itself can be deemed to be ‘legally privileged’. This is a useful device that allows companies to conduct a thorough investigation without fear of the report being used against them in court.

Last year a judgement in a financial fraud case1 narrowed the circumstances in which legal privilege could be claimed leading to the HSE being more assertive in demanding access to documentation. This has now been overturned by the Supreme Court restoring the principle of lawyer/client confidentiality. However it isworth considering the criteria that will still apply.

The document’s dominant purpose has to be advisory in reasonable expectation of litigation and a lawyer has to be have been instructed. There also needs to be some semblance of confidentiality. If the report or its findings have already been circulated, it could compromise its status as being legally privileged. A good health and safety policy should contain the protocols for dealing with accidents and set out or refence a procedure for establishing legal privilege where required.

1. Serious Fraud Office v ENRC

New Sentencing Guidelines for Gross Negligence Manslaughter (GNM)

The new guidelines applicable from 1 November will lengthen the terms for GNM dependent on the level of culpability extending the maximum term for the most serious offence to 18 years. As well as a prison sentence the court can disqualify the defendant from being a director for up to 15 years. Such cases are rare (only 5% of workplace fatality prosecutions involve a manslaughter charge against an individual) and there were only four such prosecutions in the last 12 months.

One of these involved the prosecution of a couple operating a bouncy castle that blew away killing a young child each of whom received three years for GNM. The current test of GNM was set in 1994 based on the civil law concept of a duty owed and breached resulting in loss. A fourth element was added that the breach of duty had to be a substantial cause of death. The prosecution does not have to prove any harmful intent, only a harmful act or failure to act. This could be as simple as a fatality following a failure to properly check a temporary structure or failing to advise an employee of the medical risks arising from travelling to a particular country.

It is significant that in the final draft of the guidelines the requirement for the awareness of risk was removed thus enshrining the concept that not making yourself aware of the risk is in itself negligent. Once again the importance of risk assessment comes to the fore. In a case of GNM the failure to conduct or acquaint oneself with a relevant risk assessment would undermine any credible defence.