The fine follows an incident on 9 November 2012, when a customer was run over by a Travis Perkins Trading Company (TP) vehicle in the loading area of the Wolverhampton branch. Mark Pointer had parked his Landrover in one of four parking bays and was loading planks onto the roof rack when a cargo strap snapped, causing him to fall to the floor. At that precise moment, a TP flatbed lorry was attempting to manoeuvre between Mr Pointer’s vehicle and a company lorry which had been incorrectly parked in the loading bay area. The driver of the TP vehicle continued the manoeuvre without realising Mr Pointer had fallen and ran over him causing fatal crush injuries.
The prosecution was brought by Milton Keynes Council, who alleged that the loading and unloading activities were undertaken in an unsafe manner and that the risk of individuals falling in such an area was common. As such, loading and unloading should have been carried out in an area away from pedestrians and others not involved in the operation.
TP pleaded guilty to breaches of sections 2(1) and 3(1) HSWA 1974, but the Council did not accept the basis of those pleas, namely that the failures were not a significant cause of harm. A Newton hearing followed, that is a hearing to determine whether the failures were causative of the risk. Whilst TP ultimately accepted there was a causal link, they disputed the proposed category of harm of “high” under the sentencing guidelines.
At the hearing, the culpability of TP was categorised as “medium”, reflecting that systems were in place but were not sufficiently implemented or adhered to. The prosecution argued that risk of harm was high, which gave an overall harm category of 1 in the guidelines, the most serious of the three categories available. TP argued that the overall harm category should be 3, or 2, suggesting that the incident was highly unusual.
Judge Justin Cole accepted the prosecution case that the risk of harm was high, noting a well-documented risk of falling, and that collision with an HGV was likely to result in serious injury or death.
With a turnover of £2bn, TP fell into the category of a “very large” organisation under the sentencing guidelines, namely a business with turnover very greatly in excess of £50m. For organisations of that size, the guidelines make clear that it may be necessary to move outside the range of sentence suggested for large organisations.
Judge Cole made clear that had TP not taken steps to mitigate the risk of a further incident, which included implementing new systems for deliveries on site, improving signage, introducing moveable barriers to cordon off areas and improved assessment of the risk and training for those on site to act as banksmen, it was likely the fine would have been set beyond the applicable range for large companies. In view of the aggravating features, however, the judge concluded that the fine should be set at the upper end of the range.
For a large organisation convicted of an offence of medium culpability and a harm category of 1, the starting point is £1.3m with a range of £800,000 – £3.25m. Using a starting point of £3m, Judge Cole applied a discount to reflect that TP had pleaded guilty at the first opportunity. He imposed a fine of £2m which was broken down as £1m for each offence. In addition, TP was ordered to pay £114,813 for the prosecution’s costs.
As well as being the second highest fine to be imposed under the new sentencing guidelines, this is the largest health and safety fine to date imposed in a prosecution by a local authority.