A reminder of the importance of risk assessment and heeding warnings

On Thursday 17 September 2015, Oscar's Wine Bar Limited, registered in Swinton, South Yorkshire, was sentenced at the Crown Court at Preston after pleading guilty to a charge under Section 3 of the Health & Safety at Work etc. Act 1974.

The prosecution was brought by Lancaster City Council following an incident in October 2012 which led to a teenage girl requiring removal of her stomach. Gaby Scanlon was celebrating her 18th birthday at the Oscar's Wine Bar in Lancaster when she consumed a "Nitro Jaeger", a cocktail containing liquid nitrogen and Jaegermeister which produces a "smoking" effect.  The teenager experienced immediate pain and later had emergency surgery to remove her stomach.

Sentencing

Oscar's Wine Bar Limited was fined £100,000 and ordered to pay £40,000 in costs.  

The company accepted that it had not carried out a suitable and sufficient risk assessment nor did it have a safe system in place to prevent customers being exposed to injury on the consumption of cocktails containing liquid nitrogen. 

The Court heard that a Health and Safety Officer had visited the premises in May 2012, prior to the incident, had expressed concerns and followed up with a letter warning about the use of liquid nitrogen. The guidance on such drinks is that they should not be consumed until the substance has evaporated but the training provided by the company to staff on this issue was described as "loose." 

Judge Pamela Badley commented that the "failings fell very far short of standards" and added that it was "astonishing that no risk assessment had ever been carried out.  There was a failure to heed warnings and advice from a senior health and safety officer.  Overall there is evidence of serious systemic failings within the organisation."

Risk Assessment

Regulation 3 of the Management of Health & Safety Regulations 1999 requires employers to carry out an assessment of health and safety risks. Guidance from the Health and Safety Executive website on the carrying out of risk assessments breaks this down into a five step process.

Risk assessment – guidance from Health and Safety Executive

  1. Identify the hazards 
  2. Decide who might be harmed and how
  3. Evaluate the risks and decide on precautions
  4. Record the significant findings and
  5. Review the assessment and update it if necessary 

Commercial implications

Following sentencing, a spokesperson for Oscar's Wine Bar Limited apologised and commented that the "The essence of this calamity was the ignorance on the part of the Company."

The case illustrates the importance of ensuring that a risk assessment is in place and is reviewed upon the introduction of new products and processes. It also highlights the need to take into account advice from regulators, such as in this case where a guidance letter was sent to the Company some months prior to the incident but not sufficiently acted upon. 

Lancaster City Council also commented that businesses planning to introduce new or untried products should make early contact with their regulator for advice on potential risks.

Comment on sentence

The £100,000 fine does appear to be broadly in line with the proposed new Sentencing Council guidelines for health and safety offences which are expected to be introduced either later this year or in early 2016. These propose that the court considers harm and culpability factors to identify the seriousness of the offence, and then uses this along with financial information to place the offence into the relevant sentencing table for organisations banded from micro to large.

The financial information available for Oscar's Wine Bar Limited shows that it is a relatively new business of a size which it would place it towards the bottom end of a "micro" organisation under the proposed guidelines (up to £2mn turnover). If the new guidelines had applied, it is likely this case would have fallen into harm category 1 with high culpability which would place it in a banding of £100,000-£250,000 and a starting point of £160,000.  Taking account of credit for guilty plea (maximum one third) this would place the fine imposed within that suggested banding.