Transcript Legal Update - University of Edinburgh

Edinburgh University
Annual Health and Safety Seminar
Legal Update
Presented by
Tom Stocker
Introduction
• Health and safety law – the extent of the duties owed
• Corporate Manslaughter Review - recent convictions and
new prosecutions
• Fee for Intervention - how it is working in practice and
how it can be managed internally
Risk, safety and reasonable practicability
• S.2 HSWA – speaks of safety
• S.3 HSWA – concerned with risk
• Court of Appeal - R v Tangerine / R v Veolia – Aug 2011
– concepts of safety and risk are the same
– the accident is evidence of risk only, not proof
– causation of the injury is not an ingredient of the offence:
exposure to a risk of injury is
– Prosecution too fixated on proving causation – often unhelpful
and unnecessary
Risk
• What Risk of Injury is relevant?:
• What would a reasonable and prudent employer have
foreseen by reference to prevailing knowledge and
standards – a “material risk”
• An employer must enquire into the possibility of injury
and must think deliberately about things which are not
obvious
• The risk of injury must be:
 Reasonably foreseeable (not fanciful/hypothetical)
 Arising out of business (not everyday risks)
Reasonable Practicability
• Foreseeability – relevant to the defence of whether all
reasonable practicable precautions having been taken
• Baker v Quantum Clothing Group (April 2011)
– The criteria relevant to reasonable practicability must
…require consideration of the nature, gravity and
imminence of the risk and its consequences, as well
as of the nature and proportionality of the steps by
which it might be addressed and a balancing of the
one against the other”
• Substantial disproportion test criticised
Corporate Manslaughter and Corporate
Homicide Act 2007
An Organisation…. is guilty ….
• … if the way in which its activities are managed or organised …
• … causes a person’s death …
• … and amounts to a gross breach of a relevant duty of care owed
by the organisation to the deceased …
• only if the way its activities are managed by senior management is
a substantial element of the breach of the duty of care….
Corporate Manslaughter: Convictions
Cotswold Geotechnical (Holdings) Ltd
• Trench collapsed on employee
• Fined £385,000 payable over 10 years
JMW Farms Ltd
• Metal bin fell on employee
• Fine of £187,000
Lion Steel Ltd
• Employee fell through fragile roof panel
• Directors prosecuted with Gross Negligence Manslaughter and s.37
HSWA
• Company fined £480,000
Corporate Manslaughter: Ongoing
Prosecutions
PS & JE Ward Ltd
•
•
•
•
Employee electrocuted when hydraulic-lift trailer came into contact with
overhead power line
Company charged with corporate manslaughter & s. 2 HSWA
Plea and Directions hearing at Norwich Crown Court 14 Feb 2013
Investigations into an earlier accident could form part of current
proceedings, a decision is to be reached at next hearing on 22 March 2013
MNS Mining Ltd
•
•
•
•
Death of 4 miners in Gleision colliery
Company - 4 charges of corporate manslaughter
Mine manager - 4 counts of gross negligence manslaughter
Plea and case management hearing at Swansea Crown Court on 20 May
2013
Corporate Manslaughter: Ongoing
Prosecutions
Prince’s Sporting Club Ltd
•
•
•
•
Child fell from a banana boat ride and was fatally injured by the boat towing it
Company charged with corporate manslaughter & s.3 HSWA
Director charged with s.37 HSWA
Plea and case management hearing at Southwark Crown Court on 26 April
2013
Mobile Sweepers (Reading) Ltd
•
•
•
•
•
Employee sustained fatal crush injuries when he removed a hydraulic hose
which caused the back of a road-sweeping truck to fall on him.
Company charged with Corporate Manslaughter
Sole Director charged with gross negligence manslaughter.
Also charges under s.2 HSWA 1974 and Reg 5(1) Provision & Use of Work
Equipment Regs against the Company and Director.
First hearing at Basingstoke Magistrates Court on 21 March 2013
Corporate Manslaughter: Recent Statistics)
•
England & Wales
– Number of new corporate manslaughter cases opened by the CPS rose
40% from 45 in 2011 to 63 in 2012
– 141 corporate manslaughter cases opened since records began in 2009
– 56 cases currently being investigated for prosecution
•
Scotland – House of Commons Select Committee on Health & Safety
– Q794 Lindsay Roy: How many prosecutions have there been in
Scotland under the Corporate Manslaughter and Corporate Homicide
Act 2007, and what were the outcomes of these cases?
– Lord Advocate: None, but a number are under consideration
Fee for Intervention (“FFI”)
What is FFI?
• Health and Safety (Fees) Regulations 2012
• From 1 October 2012 duty imposed on the HSE to recover costs of
an intervention from duty holders
• “In the opinion of the Inspector, there is or has been a contravention
of health and safety law that requires them to issue a notice in
writing of that opinion to the duty holder”
• HSE can charge for all investigation and follow up work until a
prosecution is commenced.
• £124 hour unless ‘specialist input’ required
FFI – How is it Working in Practice?
• FFI invoices sent out every 2 months - a company could get a
number of invoices during the course of an HSE investigation
• First round of invoices have now been dispatched for October –
November 2012:
– 1,419 invoices worth over £700,000
– Of those around 10% were for more than £1000, 20% were
between £500 and £1000, and 70% were for less than £500
• [Challenges]
• Payment of an invoice could be used in criminal prosecution as
evidence of an admission there was a material breach
• Appeal process - need to decide whether to pay the invoice. HSE
can enforce payment through a civil action. HSE could do that
before the appeal is determined - decided on a case by case basis
MANAGING FFI INTERNALLY
• Nominate a specific person internally to manage FFI across the
business:
– Ensures a consistent approach
– Enables appeals to be considered quickly (only 21 days to
appeal)
• An internal point of contact with HSE should:
– Ensure areas of investigation are relevant – requests for
documents should be focused
– Ensure key people are interviewed – try to avoid more
statements than necessary being taken
– Keep an internal record of who is interviewed and dates/ length
of time an Inspector is on site
Questions
• For Further Information
Tom Stocker
[email protected]
0131 777 7362
Combining the experience, resources and international reach
of McGrigors and Pinsent Masons
Pinsent Masons LLP is a limited liability partnership registered in England & Wales (registered number: OC333653) authorised and regulated by
the Solicitors Regulation Authority, and by the appropriate regulatory body in the other jurisdictions in which it operates. The word ‘partner’, used in
relation to the LLP, refers to a member of the LLP or an employee or consultant of the LLP or any affiliated firm who is a lawyer with equivalent
standing and qualifications. A list of the members of the LLP, and of those non-members who are designated as partners, is displayed at the LLP’s
registered office: 30 Crown Place, London EC2A 4ES, United Kingdom. We use ‘Pinsent Masons’ to refer to Pinsent Masons LLP and affiliated
entities that practise under the name ‘Pinsent Masons’ or a name that incorporates those words. Reference to ‘Pinsent Masons’ is to Pinsent
Masons LLP and/or one or more of those affiliated entities as the context requires. © Pinsent Masons LLP 2012
For a full list of our locations around the globe please visit our websites:
www.pinsentmasons.com
www.Out-Law.com