Philip Crosbie, associate, Eversheds
The jury are about to be sent out in the corporate manslaughter trial of PS & JE Ward Limited at Norwich Crown Court. The King’s Lynn based flower nursery company was charged with corporate manslaughter following the death of one of its employees in July 2010. The employee, who was originally from Poland, died as a result of a electric shock when the lift trailer of his tractor came into contact with an overhead power line at Belmont Nursery.
This is the eighth corporate manslaughter case to come before the Courts since the Corporate Manslaughter and Corporate Homicide Act 2007 came into force in April 2008. The trial is running at the same time as that of MNS Mining Limited, a company charged with corporate manslaughter following the deaths of four miners at a South Wales Colliery in 2011.
The prosecution case is that there was 1. A lack of a safe system of work; 2. A lack of training; 3. the activities of the undertaking in the way that it was managed by Senior Managers was a gross breach of a duty of care; and 4. there were inadequate risk assessments.
In dealing with the alleged failures, the Prosecution suggested that these failures depicted a company that was’muddling through’ on health and safety. In particular, there are accusations of failing to provide suitable instructions to employees whose first language is not English, contrary to HSE requirements, and failing to control trees growing around power line poles, meaning that danger signs were not visible.
In deciding whether there has been a gross breach of the company’s duties, the jury must first consider whether the evidence before them demonstrates a failure to comply with health and safety legislation (and indeed, the company has been charged with health and safety offences. The jury must then consider how serious any failure was, how much of a risk of death the failure posed and also whether there were “attitudes, policies, systems or accepted practices” which either caused the failure, or meant that non-compliance with health and safety legislation was tolerated within the business.
Although there have been few prosecutions to date, there is evidence that the CPS is picking up pace in bringing prosecutions for corporate manslaughter. The commencement of this trial, and that of MNS Mining, serves as a reminder that employers must ensure that they have in place robust policies and procedures for health and safety and that these policies are reflected in practice ‘on the ground’ and every day.
The trial comes amid uncertainty about likely fines for corporate manslaughter following recent sentencing remarks and the Mobile Sweepers (Reading) case. Watch this space.
A previous version of this article suggested that ‘Profit before Safety’ was a feature of the Prosecution case which is incorrect.
Companies need to think seriously about their work activities, you can chase the profit all you want, but you cant chase profit if you get found guilty of a breach and levied with a substantial fine.
Simple to put into place and over time pays for it self, why don’t companies understand? Apart from the Moral obligation!