Practitioners attending the IOSH Conference were given the opportunity yesterday to act as the sentencing judge in an imaginary health and safety prosecution.
Providing an insight into the sentencing process, delegates listened attentively as two barristers presented the prosecution case and the mitigation of the defendant organisation, which had pleaded guilty to a health and safety offence.
The audience was then asked to vote on the fine and costs they felt the company deserved. Read the background to the incident, along with the respective summaries for the prosecution and the defence, and then let us know what you think the sentence should be by leaving a comment via the box at the end of the article.
Defendant’s background
Benjamin Jones began his business in 1989, manufacturing products for the construction industry.
In 1999 he received a Prohibition Notice following a serious accident at his factory. Four years later, the HSE prosecuted Jones over a safety incident, for which he was fined £4000 after pleading guilty. This experience led him to incorporate his business in 2005. He continued to trade at the same premises and is the only director of the company.
In 2007, Jones Ltd had 12 full-time employees and, at busy times, it would use up to 20 temporary agency workers. One such agency worker, Stefan Mackiewicz, a 24-year-old Polish carpenter, worked on and off for Jones Ltd over a four-month period in 2007. He told Benjamin Jones he had plenty of experience driving forklift trucks (FLTs) in Poland, albeit not the type used at the factory. Jones required Mr Mackiewicz to drive the FLT on occasions when the usual driver was off work.
The incident
Extension work to the factory meant that for much of 2007 the forklift truck had to be manoeuvred around a blind corner. On 17 December that year, the usual driver was off sick and Mr Mackiewicz was asked to operate the vehicle. He manoeuvred it round the blind corner and collided with one of the company’s employees, Tracey Dawson, a 17-year-old office worker. Although she had been instructed to avoid this area, she took the route as a short cut.
The collision caused her to sustain a nasty fracture to her ankle, for which she required surgery. Following her operation, she began to recover but, four days later, she unexpectedly died after suffering an embolism.
The charges
Following an inquest into her death, which recorded a verdict of accidental death, the HSE brought a prosecution against the firm under s2 of the HSWA 1974, alleging it had failed to undertake its duty of care to ensure the health, safety and welfare of its employees, so far as is reasonably practicable.
Defendant’s financial history
Jones Ltd was a very profitable business between 2005 and 2007. However, its turnover fell from a peak of £8m to £2.7m in 2008-09 (the last year for which audited accounts are available). Profits after tax dropped from a high of £1.8m to just £46,000 in 2008-09. The number of agency staff has also fallen dramatically in the last couple of years.
Keith Morton QC, counsel for the HSE (key points)
Mr Jones took Mr Mackiewicz’s experience of driving forklift trucks at face value and permitted him to operate the vehicle in question without proper training, or instruction.
Long-established HSE guidance on forklift trucks highlights that they are involved in many safety incidents, some of which are fatal. The first and essential step to take so that a FLT can be operated safely is to ensure the driver is trained to the appropriate level and has the necessary qualifications. It is clear that this company provided no training whatsoever.
The company may argue that the breach did not cause Tracey’s death, but the embolism did. But the fact that she took the short cut is clear evidence that the instruction provided was inadequate or inadequately explained. But for the incident, Tracey wouldn’t have died.
The court should also take into account the fact that the defendant, albeit in an individual capacity, has a poor health and safety record. The company is, in all intents and purposes, the alter ego of Mr Jones.
We note that the sentencing guidelines on penalties arising from a conviction of corporate manslaughter or of a health and safety offence causing a fatality should be seldom less than £100,000 and may be measured in hundreds of thousands of pounds.
In deciding the sentence, the court should bear in mind the seriousness of the offence; how foreseeable was it? Clearly, it was foreseeable that allowing an untrained driver to operate a FLT around a blind corner, where he could come into contact with pedestrians, was dangerous.
How far did the company fall below the standard of so far as is reasonably practicable? The company fell far below the standard, as the evidence is clear that it failed to follow established industry practice.
How far did the offence go up the management chain? It went right up to Mr Jones.
What aggravating and mitigating factors are there? Death is plainly an aggravating factor, as is the failure to heed warnings.
The company had a poor health and safety record. Perhaps the most serious aspect is that this company was cutting corners to save money, evidenced by the fact that no training was provided to Mr Mackiewicz. And the victim was vulnerable by reason of her age.
The company has pleaded guilty, but only at the last moment. It changed its plea after the overwhelming evidence against it. It has provided accounts for 2008/09 but has failed to provide any up-to-date financial information or any details regarding its assets.
Costs sought by the prosecution: £75,000
Dominic Adamson, counsel for Jones Ltd (key points)
I would like to start by expressing the company’s profound regret for the injury that Ms Dawson suffered and the tragic consequences of that injury.
Nevertheless, she was, in large part, responsible for the accident that befell her.
The extension work in 2007 led to a blind bend. The company identified the risk and pointed it out to employees. The instruction was provided specifically to Ms Dawson.
There was no evidence that the FLT was being driven recklessly, or at speed. The absence of training did not have any impact on causing this incident, so the sentencing guidelines do not apply.
The likelihood of Ms Dawsons’s injury causing her death was extremely low. In fact, the risk of death as a result of such injuries is significantly lower than 0.34 per cent.
Therefore, it can’t be said that the breach constituted a significant cause of death.
The company did not put profit before safety. There was no reason for training because the company believed that the driver had sufficient experience to drive the truck safely.
This company has a clean health and safety record. The fact that Mr Jones has been prosecuted in a personal capacity should be neither here nor there. The company has also entered a guilty plea, saving court time and saving the victim’s family from a lengthy and unpleasant trial.
In mitigation, the blind bend has now gone and Mr Mackiewicz no longer works for the company. Mr Jones has fully cooperated with the HSE investigation. The company has since employed a full-time safety advisor with a dedicated budget, and its lost-time injury frequency figures have dramatically improved over time. In 2006, its LTI rate was 10 accidents for every million man hours worked; in 2010, this had fallen to 1.5 accidents.
What fine would you hand down?
A) Below £10,000
B) £10,000 to £25,000
C) £25,000 to £50,000
D) £50,000 to £100,000
E) Over £100,000
What costs would you impose?
A) £75,000 payable immediately
B) A lower amount payable immediately
C) £75,000 payable over two years
D) A lower amount payable over two years
E) £75,000 payable over more than two years
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Readers of this article may be interested in “So what happens at an inquest” which has been produced for Safety Practitioners by the North Staffs Health and Safety Group, a video reflecting the process of what actually happens at an inquest.
Visit http://www.nshsg.org.uk/Media.aspx
This is a poorly constructed scenario.
The prosecution case is full of conjecture and the defence case is poor to say the least. I certainly wouldn’t want them to defend me.
Dependant on the assumptions made you could go anywhere on this one.
I was at this presentation by the way and I’m glad I wasn’t in the dock as the place was full of ‘hanging judges’
I think the above ‘scenario’ would clearly warrant a fine greater than £100,000 with costs being paid immediately. Relying on ‘un-ratified’ experience is an extremely poor attitude to adopt and regardless of whether they told the pedestiran not to access the area is neither here or there. I think the fact that a safety advisor was appointed shortly afterwards, that the incompetent FLT driver no longer works for the company and also that the ‘blind’ corner was removed speaks volumes!
Mmm…not a simple case by any standards. The fatality was unfortunate but not directly attributable to the accident. The reality is that you could go to many premises and find FLTs and pedestrians not properly segregated, possibly untrained staff operating FLTs. Notwithstanding that, the only real health and safety offence was not providing the FLT operator with training, and to a lesser extent not ensuring segregation ie SSoW. An offence of this type would dictate a low fine of under £10k IMO.
Those of you wondering what the two lawyers acting out the scenario felt would be the resulting fine and costs, they suggested a fine of between £100,000 and £150,000, with costs of £75,000 – likely to be payable immediately. They felt that the court would agree that the breach did cause the death, so the Sentencing Guidelines, which state that such offences would generally be in excess of £100,000, would probably apply. They also said it is rare for there to be any reduction in costs sought.
Very simplistic. The majority of employers learn from mistakes, equally taking ‘short cuts’ in any shape or form is asking for trouble D and C would be appropriate.
we all have responsibilities under Health and Safety at Work etc. Act 1974. As usual the ‘blind corner’ hazard is dealt with after the event. If only hazards were tackled effectively,
Terry