Oiling the Wheels of Justice?
Paul Verrico operated a contracting company from 1995 until 2004. During that time he also lectured at various further and higher education establishments on the law of obligations and criminal responsibility. He is a solicitor in the Regulatory Group at Eversheds LLP, based in Leeds.
Eversheds have the largest and most experienced team of specialist health and safety, environmental and regulatory lawyers in Europe. They routinely represent clients in corporate criminal defence and civil proceedings, and in corporate and property transactional work, as well as covering other areas of regulatory work such as food safety, trading standards and healthcare.
Writing from his background in the contracting sector, Paul has agreed to produce a series of articles covering some of the important legal issues that affect our readers.
Oiling the Wheels of Justice? A death at work - while a terrible circumstance is just the start of a long legal process…
Whenever there is a fatality at work, the Police and Health and Safety Executive will investigate and decide whether to bring any criminal charges against either a company or an individual. If this investigation reveals that gross negligence has brought about the death, the file is passed to the Crown Prosecution Service for a potential charge of gross negligence manslaughter.
For large companies the current legal test makes it very difficult to link the acts of directors with the errors which caused the death. Many large companies have avoided manslaughter convictions as a result. The prosecution of P&O Ferries after the Zeebrugge ferry disaster illustrates the problems facing a prosecutor - the prosecution in that case failed because the current law requires the prosecutor to identify a person as “the controlling mind” of the company at the time of the breach which led to the death, and convict that individual of manslaughter in their own right. A prosecution of a company without a successful prosecution of an individual cannot succeed.
For smaller companies, it is far easier to make such a link and to prove a Director has a direct connection with the death. It may be useful to consider some decided cases and draw out learning points.
Manslaughter Cases in the Courts
Keymark Services One of the company’s employees fell asleep at the wheel of his lorry on the M1 and crashed into seven vehicles, killing two men. Drivers kept false records on working hours at the company’s behest. Working practices were described as ‘an accident waiting to happen’. Director Melvyn Spree received a 7-year prison sentence.
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OLL 8 students, their teacher and two instructors from OLL tried to canoe across Lyme Bay as part of an organised expedition. The instructors only had basic proficiency skills in canoeing. The weather was bad. OLL failed to equip any canoe with distress flares and had not informed the coastguard of the trip. Four students died.
An OLL director was sentenced to a custodial sentence of three years. The company was fined £60,000, which put it out of business.
Teglgaard Hardwood Unsatisfactory hardwood stacking procedures led to an 18 year old man being killed when a load fell. The Managing Director was imprisoned for 15 months.
In Keymark Services, employees were under instructions to falsify records in order to maximise pay. Granted, your employees are not under the same tachographical requirements as lorry drivers. However, do you sometimes expect employees to be back at their desk for 9am, even though you know they have worked until the early hours as a project nears completion? Do you expect employees to go from Wrexham on Monday to London on Tuesday and up to Edinburgh on Wednesday? If so, and employees are driving, consider your potential culpability. When long hours on the road are married to company mobiles, the potential for hideous accidents is high. It is only a matter of time before an executive causes a fatal accident while driving a company car, perhaps following an argument with his boss on the company mobile, texting to his work colleagues while driving to complain of his treatment…headline news for sure!
In OLL, insufficient training and failure to appreciate the hazards were the main causal factors. As a design engineer, are you confident that your operatives are fully trained in safe working procedures or are corners sometimes cut to increase speed? Are all hazards identified and has appropriate consideration been given to operating conditions? If your staff go on site in a consul- tative role, has the working area been risk assessed and is the principal contractor notified when you are on site? With the lubricant market so competitive, are products and processes placed on the market without adequate testing in order to gain a commercial advantage? While Health and Safety may physically be top of a corporate board meeting agenda, in real terms what commitments are made to training and how is that message disseminated to your workers?
The lessons from Telglgaard are to survey premises with a fresh pair of eyes and challenge practices, even if they are long established, if risks are posed. New or young employees are particularly vulnerable to old hazards.
The New Law
The Corporate Manslaughter and Corporate Homicide Bill is parliament’s attempt to remove the barrier of having to identify the controlling mind of an organisation. The new Bill provides that an organisation will be guilty of Corporate Manslaughter if a gross organisational or management failing caused a person’s death. This will mean that the actions of “senior management”, and not just directors, can be deemed as those of the organi- sation. Actions can be aggregated without the need for a specific
LUBE MAGAZINE JUNE 2007
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