JFC Plastics had pleaded guilty to breach of s 2(1) HSWA following an incident in 2005 when its employee Steven Bennett was fatally crushed after falling into an unguarded baling machine. However, JFC Plastics argued that its breach was not the significant cause of his death and as a result a Newton hearing, which is a hearing specifically to determine this issue was listed. Bearing in mind the sentencing guidelines which specify that the starting point for a fine for an offence which results in death as £100k, there is a clear benefit to a defendant who can avoid the courts using that starting point.
Mr Bennett had been working alone loading the bales of compacted bottles into the balebreaking machine on 24 November 2005. The machine had rotating screws at the base which would rip apart the metal binding holding the bales together. However, on occasion the metal wire securing the bales would become entangled in the screws. During the course of the nightshift, the shift manager went into the shed to see why the machine had been stopped and after a search, Mr Bennett’s body was found in the baler.
JFC Plastics pleaded guilty to the s 2(1) offence, but on the basis that it was not the significant cause of death. A risk assessment, completed nine months before the incident had identified the problem of wires snagging on the rotating screws, and determined a remedial procedure to be implemented by a two man crew. Whilst it was accepted that the risk assessment had deficiencies, the fact that the problem had been identified with a resolution which Mr Bennett had been aware of and yet not followed was, on the basis of JFC’s plea, indication that the company’s failure was not a significant cause of Mr Bennett’s death.
The Judge delayed the hearing until after the Court of Appeal (CoA) decision in Tangerine Confectionery and Veolia ES (UK) Ltd v The Queen. That case highlighted that causation of injury/death was not an ingredient of the offence but that the fact of death or injury could be evidence of a risk to safety.
Judge Morrow found that there were four key issues to consider:
- The extent to which JFC’s risk assessment was suitable and sufficient;
- The extent of any training JFC had provided to their employees in relation to the system;
- The extent to which the system in place had been controlled, monitored and supervised; and
- How Mr Bennett had come to be found in the machine
After consideration of the facts, Judge Morrow determined that the risk assessment was deficient in a number of ways. For example, the assessment did not address the risk associated with access into the machine to remove baling wire or the risk of falling from height. Whilst it was accepted that Mr Bennett had received some “on the job” training on the system to remove baling wire, the Judge found this informal approach to be inappropriate for the hazard in question. The team leaders providing it had not themselves been trained on how to train effectively. These factors then fed into the view that the system in place was inadequate which he noted to have been “poorly implemented, poorly controlled and inconsistently applied.”
As to how Mr Bennett came to be found in the machine, Judge Morrow formed the view that Mr Bennett had climbed onto the frame of the hopper to look in and check that the blockage had been cleared when he fell head first causing serious skull fractures. However, ultimately Judge Morrow agreed with the prosecution that it did not matter how Mr Bennett had come to be in the machine: “There should have been proper control measures in place to prevent any such eventuality arising.”
Taking all the facts into account, Judge Morrow found that JFC’s breaches were a significant cause of death and that the case was not one where this issue was a close call. JFC was fined £140k with costs of £100k. The fine was reported to be approximately three times the operating profit of the company for 2011.