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June 18, 2010

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Court dismisses New Look appeal

The Court of Appeal has ruled against high-street retailer New Look after the company appealed that the £400,000 fine it received last year in relation to fire-safety breaches was excessive.

Thirty-five fire engines and around 150 firefighters attended the fire on 26 April 2007, when around 450 people form the store and surrounding premises were evacuated. The cause of the fire remains unknown.

A subsequent investigation found that a fire risk assessment was prepared on 16 January 2007 by an employee who was not responsible for fire safety. The assessment was defective in two respects; firstly, it failed to identify some of the deficiencies in the store’s fire-safety precautions, which would expose customers in the event of fire to a risk of injury or death; and, secondly, it failed to identify the necessary steps to rectify those deficiencies and changes to the fire safety precautions, which had been certified under the fire certificate issued to the retailer in 2000.

The failure of the risk assessment led to confusion on the evening of the fire, when, instead of being ushered by trained staff to safe escape routes, and thereby to designated fire exits, customers made for the main exit by routes which took them under the heart of the fire on the second floor.

At a court hearing in November last year, the company pleaded guilty to a failure contrary to art. 32(1)(a) and art. 9 of the Regulatory Reform (Fire Safety) Order 2005 to carry out a suitable and sufficient risk assessment, and an offence under art. 32(1)(a) and art. 21(1) of the same Order to ensure that its employees were provided with adequate safety training.

The judge imposed a fine of £250,000 in respect of the first count and a fine of £150,000 in respect of the second. However, New Look appealed the penalty on the reasoning that the fine imposed exceeded levels previously imposed for HSWA breaches of duty where death had resulted.

In a judgement handed down by Lord Justice Pitchford and published on 16 June, the appeal court did not take the view that the judge “either intended or was purporting to set a new standard for sentencing corporations for breaches of fire safety legislation”.

Lord Justice Pitchford explained: “The magnitude of that risk was demonstrated, not by a death or serious injury, but by a fire in which death and serious injury was fortuitously avoided. What the fire served to illustrate was the magnitude of the risk, which the appellant ran with public safety.”

The appeal court also shared the original judge’s scepticism that “the appointment of a single fire safety advisor for a group of 600 and more shops was a sufficient response to the magnitude of the obligation”.

It concluded: “We share the judge’s view that the appellant’s performance of its fire safety duties in a large department store in the centre of London was lamentable. The fines were, we recognise, severe, but they were not in our judgment manifestly excessive and the appeal is dismissed.”

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