Legal
following the prosecution: a fine which was later upheld by the Court of Appeal. That first prosecution was followed by Lion Steel Limited being fined £480,000 in July 2012. And in May 2012, JMW Farm Limited was fined £187,500 after another successful prosecution under the Act. This year so far, there have been
announcements of four more companies who face prosecution under the Act. In most cases so far, though, there has been a common theme: the person who was killed was usually an employee and was involved in an activity which could be considered 'inherently dangerous'. In Cotswold, a sub-standard trench collapsed. In Lion Steel, an employee fell through a roof. Of the new cases, PS & JE Ward Limited involves the death of an employee by electric shock. MNS Mining Limited involves the death of four miners and JMW Farm Limited concerns the death off an employee at a pig farm. Another case involves Mobile Sweepers (Reading) Limited, where a man died from crush injuries after working on a repair underneath a road-sweeping truck. However, potentially one of the most interesting cases is the one planned against Princes’ Sporting Club Limited. In this case, an 11-year-old girl died after falling off a banana boat and being hit by the
speedboat towing it. This did not involve an ‘inherently dangerous’ activity and revolves around a member of the public, not an employee. The case is, therefore, likely to be
linked closer to the traditional common law of negligence, as opposed to health and safety at work. In order to establish negligence, firstly, there must be a duty of care owed to the person who is injured or killed. Secondly, there must be a breach of that duty. Thirdly, there must be resultant damage, which, under the Corporate Manslaughter and Corporate Homicide Act, must involve a death.
Rail industry in a unique position So what are the implications of the Act
for the rail and other industries? Firstly, the rail industry is in a fairly unique position. In that respect, the Act provides guidance on whether or not a duty of care will be owed to a particular individual. Examples of when a duty of care will exist are included in the Explanatory Notes to the Act. They include 'duties owed by a transport provider to its passengers'. Secondly, the size of the fines is significant. For example, Cotswold Geotechnical only employed eight people at the time of the offence. However, a substantial fine was imposed in line
with the severity of the offence. A larger organisation could face a much bigger fine. Thirdly, prosecution involving a non-employee could have applied in the instance of the rail guard mentioned at the start of the article. There are significant implications for the industry when dealing with passengers and members of the public generally. A fourth and final consideration is that
the Act could be used to protect employees in situations where the activities are not 'inherently dangerous'. For example, many employees are required to drive long distances for work. Could we perhaps see the first prosecution under the Act, where an employee is either killed or causes the death of the third party, while driving on business? The Act is still very much a work in
progress and it is difficult to state, with certainty, how it may apply in the future. One thing is certain, however. Ultimately all organisations need to remain vigilant to health and safety issues, adapt according to the situation and then take all reasonable steps to protect employees and third parties from injury or death.
Claudia Gerrard is a legal consultant at Excello Law. You can call her on 07447 985647 or email her at
cgerrard@excellolaw.co.uk
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