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new and has existed at common law for some considerable time, the new Act represents a tougher and more specific legal regime than was previously seen. Under the old law, the perceived lack of convictions led

to calls for the law to be clarified. A growing political lobby insisted that the law should be able to point the finger where company procedures had been to blame for fatalities in the workplace. The incoming Labour Government in 1997 promised to introduce legislation to reform the law and pave the way for more prosecutions. Ten years later, the Corporate Manslaughter and Homicide Act finally received royal assent. Since the Act was passed, there has been only one charge

of corporate manslaughter, which gives an idea of what electrical contractors would face in similar circumstances. The case involved Cotswold Geotechnical Holdings, which was found guilty in February this year of being at fault in the death of an employee.

by its ‘senior management’ is a substantial element in the breach of duty. The first thing to point out is that the Act applies to

organisations only, which is not to say that an individual may not face a charge of manslaughter arising from the same incident. Of course, the primary incentive for an electrical contractor

to maintain health and safety standards will be its moral duty of care to all those involved in or attending a workplace. However, the additional repercussions for a company that experiences a tragedy – whether guilty or not – would include the cost of a legal defence and investigations, not to mention the cost of reputational damage and interruption to business. All of these combined could put a company out of business, even in the absence of a conviction.

Managing risk Insurers have a role in helping electrical contractors to manage their risks to avoid a tragedy. They can also protect companies against the potentially large costs of a corporate manslaughter case that can be incurred even if the company is not at fault. A standard liability policy from ECIC provides cover in

respect of the cost of legal representation at any coroner’s inquest or inquiry, or of proceedings arising out of a breach of duty. At the outset, ECIC would appoint a specialist legal adviser from a panel of solicitors, who would provide legal advice and assist in person where necessary. They would assist all the way from dealing with the HSE

initially, right through to the coroner’s inquest and the court, if required. This provides peace of mind for policyholders, who can

feel confident they would not be left high and dry if they were unfortunate enough to be involved in an investigation over a fatal accident.

Tougher legal regime While the legal concept of corporate manslaughter is nothing

42 ECA Today May 2011

Regina v Cotswold Geotechnical Holdings Ltd and Peter Eaton: In this first case to be prosecuted under the Act, the trial took place at Winchester Crown Court during January and February 2011. Cotswold Geotechnical Holdings and its sole director, Peter Eaton, were initially charged with corporate manslaughter and gross manslaughter, respectively, following the death of Alex Wright in September 2008. Mr Wright, who was employed by the company as a junior geologist, was taking soil samples from inside a pit when the pit collapsed crushing him to death. In October 2010, the individual charge of gross negligence

manslaughter was dropped, essentially due to Mr Eaton’s state of health. After a trial lasting three weeks, the jury returned a guilty verdict and a fine of £385,000 was imposed. The company’s annual turnover was in the region of £300,000 per annum and the trial judge, Mr Justice Field, acknowledged that the fine might put the company out of business. It was, he said, ‘a consequence of the serious breach’. The case should serve as a warning shot to all small and

The stakes have never been higher, and those organisations that fail to embrace basic health and safety standards and disciplines do so at their peril

medium sized businesses that will be prone to reputational damage and crippling fines in the event of investigations and convictions under the Act. The stakes have never been higher, and those organisations that fail to embrace basic health and safety standards and disciplines do so at their peril. For example, it is essential for contractors to ensure their

safety standards apply not just to themselves, but to every person who enters their work space, whether they are clients, fellow contractors or even uninvited visitors.

What the legal details mean To fully understand where liabilities arise, it is worth explaining some more details about the corporate manslaughter legislation and how it compares to the previous legislation. There are similarities between the new law and the old

law. A gross breach of duty and causation were necessary ingredients in the previous ‘common law’ offence, but the prosecution also had to prove that the gross breach of duty was caused by an individual who was the ‘controlling mind’ of the company. Typically, the ‘controlling mind’ had to be somebody very senior, such as the managing director, chief


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