The Court of Appeal has rejected a challenge by a transport firm against its six-figure fine for a serious but non-fatal injury, concluding that the penalty was “stern” but not “manifestly excessive”.
Courier company Tuffnells Parcels Express Ltd was fined £150,000, plus £19,000 in costs, after an employee was seriously injured when his skull was crushed by a reversing lorry at the company’s depot in West Horndon, in Essex.
On 23 March 2010, Simon Mason was working on a night shift as a warehouse porter, waiting for an articulated HGV trailer to reverse into a loading bay before he could unload its contents.
Believing that the trailer had stopped reversing and noticing that it was not in line with the bay, he put his head round the rear of the vehicle to shout instructions to the driver. At this precise moment, the trailer backed up further and crushed his head against the wall. He was off work for nearly a year.
Tuffnells was prosecuted last year after an HSE investigation revealed that the shunter vehicle was defective and a risk assessment undertaken eight months prior to the incident had failed to identify a safe system of work for reversing vehicles at night. Inspectors also found that induction and health and safety training were inadequate and the condition of the yard and loading bay was poor.
They concluded that there had been widespread failure in the company’s health and safety procedures since 2007. The original sentencing judge agreed, stating: “[T]here were, I am entirely satisfied, significant and systematic failures to meet the standards on the part of Tuffnells at West Horndon depot.”
Noting that the company’s turnover in 2010 had been £100m, or thereabouts, and its operating profit had been £7.7m, and considering the seriousness of the failures, the judge decided an appropriate fine was £150,000. The equivalent trial penalty would have been £225,000 – 2.9 per cent of Tuffnell’s operating profit for 2010.
The company appealed against the fine, arguing that, in weighing up the aggravating and mitigating factors, the judge reached a figure that was manifestly excessive.
In a ruling heard last month that has just been published, Lord Justice Pitchford, Mr Justice Underhill and Mr Justice Lindblom dismissed the appeal, concluding that the sentencing judge had made no error in weighing up the relevant factors.
They also didn’t accept the suggestion that the judge should not have placed weight on those failures that were not causative of the accident, stating: “The offence is comprised not merely by failures causative of an accident, although that is an aggravating feature, but by the careless running of risk.”
While recognising that the Sentencing Guidelines Council’s guidelines on ‘Corporate manslaughter and health and safety offences causing death’ were not applicable, the appeal judges did note that the aggravating and mitigating factors in the case did apply “by analogy”.
They also agreed with the sentencing judge that the risk of serious injury was “not just foreseeable but obvious”, and that the company fell “far below” their duty of care. Said the judges: “Responsibility for the breach reached at least regional level and, in our view, permeated head office, where ultimate responsibility for implementation of an appropriate health and safety policy rested.”
Commenting on the appeal, Mike Appleby, a lawyer at Housemans, said: “The sentencing guidelines for health and safety breaches causing death say the starting point for a fine is £100,000. However, it does not follow that this figure provides a maximum for breaches that do not lead to death.
“Given that the company had a previous conviction and that the sentencing judge found there were significant and systemic failures and the risk of serious injury was obvious, it is perhaps not surprising the Court of Appeal judged the fine was not manifestly excessive, and so the appeal failed.”
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Not if there is a guilty plea, where automatically the defendant gets 1/3 off, regardless of the offence. Same is true for non-H&S cases.
Human error is a foreseable risk, we all have done it, and will continue to do so.
Risk perception and raising awareness is a duty placed upon employers.
If he had been killed, would they have been so contrite?
The evidence aginst them was significant.
I am confused at the comment ‘equivelant trial penalty’. Do HSE prosecutions not automatically go to trial?
This is of course the crminal prosecution. no doubt the civil action will follow when gross stupidity will apply. c/f Udin vs Portland Cement 1965 where if I recall he won a tidy sum due to employer negligence but then had most of it taken back due to contributary negligence.
A company that has a formal defects report 8 months earlier and cannot demonstrate any subsequent action really deserve everything they get!
There is only a trial if the defendant pleads not-guilty. Having read a brief summary of this case it would have been very foolhardy to have entered that plea in this case. there would have been no trial here, (basically) just a formal hearing for the case to be put, mitigation to be heard, and a formal plea to be entered prio to sentencing.
As to a charge of “gross stupidity”, how may of us would not have a criminal record for that at some time?
how much was the individual fined for gross stupidity i wonder?