JN Bentley, who operate as civil engineering contractors, were prosecuted following an incident on 9 March 2007 when employee Steven Allen suffered fatal injuries during a lifting operation being performed by another employee. Workers were using a Probst SG80 block grab attached to an excavator to move a wooden pallet which contained 30 bags of cement. As the pallet was lifted, it twisted, causing the bags to fall to the floor. Mr Allen and his colleagues attempted to free the pallet when the jaws dropped onto him causing serious injuries which led to his death the following day.
Whilst JN Bentley pleaded guilty to breaching section 2(1) HSWA 1974, they did so on the limited basis that the failures were administrative in not having a written risk assessment and in failing to provide the driver with proper instruction. Since agreement could not be reached with the HSE, a Newton hearing took place in January when the Court heard evidence regarding the mechanics of the incident. A Newton hearing occurs where there is a dispute between the parties regarding the basis of a guilty plea, which would materially impact the sentence imposed.
JN Bentley argued that the equipment was suitable for the lift, the system did not fall significantly below standard and the failures were not the cause of Mr Allen’s death as his choice to stand under the suspended load was against his training. These points were disputed by the HSE who maintained that the equipment presented an obvious and foreseeable risk of injury and that the block grab was inherently unsafe. The HSE also argued that the lifting operation fell significantly below standard, as the operation was not properly planned nor were the workers appropriately trained. Finally the HSE maintained that there was a direct link between the breach and Mr Allen’s death.
The Court accepted the HSE’s arguments on each of the three grounds and sentenced JN Bentley in accordance with the Sentencing Guidelines for Fatalities, which provide that fines in fatal cases will seldom be less than £100,000, and may be more. The company was fined £106,250 and costs of £90,000 were imposed. The standard one third discount to reflect a guilty plea was reduced to 15% in light of the limited basis on which the guilty plea was submitted, and the fact a Newton hearing was required