There have been two health and safety cases where the sentences have been recently considered by the Court of Appeal. These led to opposing results
In the case of R & S Recycling, the company appealed a fine of £100,000. The prosecution involved an incident where an employee was killed after a bale of recycling material fell onto him. It was alleged that the prosecution case against the company was straightforward and a few days prior to the start of trial, the company indicated its intention to enter a plea of guilty. The company was ordered to pay prosecution costs of £57,927. In relation to the fine, the judge had in mind the starting point figure of £100,000 for corporate manslaughter and health and safety offences causing death, and whilst he acknowledged the fact the company did not have an ingrained culture of disregarding health and safety, there had been a foreseeable risk of the incident. Applying a starting point of £125,000 he reduced the fine by 20% to reflect the late guilty plea which brought the fine to £100,000.
On appeal, the Court of Appeal held that the approach taken by the judge had been correct and that he had evidently taken care when setting the fine. However, the costs figure had not been challenged, and it was a sum which should have been taken into account under the principles of totality. The Court of Appeal was required to consider whether the overall penalty was too high. As a result, the starting point of £125,000 was too high given the financial status of the company. A revised starting point of £80,000 was applied which, allowing credit for the guilty plea, was reduced to £65,000. The total amount of £122,927 was ordered to be paid at a rate of £15,000 per year.
The second case is one which we have previously reported. This concerned the prosecution of Balfour Beatty Infrastructures Ltd (BBIL) and Enterprise (AOL) Ltd (Enterprise) following an incident in November 2007 when William Collins was driving along the A50 but failed to negotiate a road closure at a junction where works were undertaken. He collided with a parked Enterprise van. BBIL was the Managing Agent for the project and had obtained a Temporary Traffic Regulation Order for the closure of two lanes. Whilst BBIL had initially intended to take responsibility for the Temporary Traffic Management (TTM) system, due to a shortage of manpower, they subsequently instructed Enterprise to undertake this task. Enterprise had significant experience in setting up such systems and three experienced employees of Enterprise were allocated the task.
The prosecution alleged that the TTM arrangements were inadequate and the closure was not properly signposted since there was a gradual right turn in the road which obscured some of the TTM signs. The prosecution expert, a qualified engineer and principal specialist inspector, concluded that the TTM system “fell well short of protecting motorists”. A second prosecution expert, an experienced construction engineer, had given evidence focusing on the role of BBIL and concluded that whilst the paperwork indicated that their procedures were sufficient to discharge their obligations towards and over their sub-contractors, those procedures were not followed. In particular, BBIL should have reviewed the generic risk assessments supplied by Enterprise which would have highlighted that they did not cover a full road closure.
BBIL argued that it had no responsibility for the TTM but that, notwithstanding that point, if they had remained prime contractors for that element of the project they had discharged their responsibilities by subcontracting the work to Enterprise, which had a long track record of experience of installing traffic management on the A50. They argued the system which had been installed was appropriate and safe.
Enterprise argued that they were only informed of the need for a TTM system at short notice but in any event the system installed was appropriate. Any deficiency in the written assessments had been addressed in a dynamic risk assessment produced by one of the Enterprise employees and prior to the accident 349 vehicles had gone through the TTM without any incident. It was suggested that the deceased had contributed to the accident by being severely deprived of sleep – a potential factor which had been referenced in the Police Accident Report.
Following conviction, each defendant was sentenced to a fine of £225,000, costs of £100,000 and a victim surcharge of £15. Both defendants appealed the sentencing remarks and level of fine, in addition to appeals against their convictions with renewal of applications to seek leave for other grounds of appeal against conviction.
The one aspect where leave had previously been granted and was considered by the Court of Appeal was the trial judge’s direction regarding material risk. The key component for the Prosecution to prove in a s.2 or 3 HSWA charge is the existence of a risk against which the defendant should have taken reasonably practicable steps. The defendants argued that the judge failed to direct the jury as to what a material risk was, namely that it was one that a reasonable person would appreciate as opposed to one which was fanciful or hypothetical. It was also argued that material risk requires the consideration of foreseeability of the danger and the factors relevant to foreseeability in the case, which included the lack of earlier incidents and the deceased’s tiredness.
When considering this issue, the Court of Appeal noted that rather than a dissertation of the law in this area, the trial judge had simply made reference to “material” risk. Since material was defined in the Oxford English Dictionary as “of serious or substantial import; significant, important, of consequence” they considered that this word alone was sufficient to “describe the notion that the risk is real, and is not trivial, hypothetical or fanciful.” As to the argument
that the trial judge had failed to direct the jury properly on the concept of “everyday” risks, the Court of Appeal held that jury directions are heavily dependent on the context of each case. In this case, the prosecution had focused on the adequacy of the TTM and it was not, therefore, a case relating to everyday driving. As a result, any reference to ordinary or everyday driving was only likely to cause confusion. As to the alleged need for an additional direction in relation to foreseeability, the Court of Appeal again rejected this argument and found that the approach of the Trial Judge in highlighting the need to consider all the relevant factors, including risk foreseeability, when considering reasonable practicability was sufficient. The argument that additional directions should have been given was rejected on the basis that this would only have had the effect of causing confusion.
Both defendants also challenged the level of fine imposed, with BBIL arguing that the their failure was not a significant cause of death and the risk was not obvious, whereas Enterprise argued that the sentence was manifestly excessive. The Court of Appeal again rejected both grounds, and in BBIL’s case found the Trial Judge was right to form his own view that there was a link between the death of Mr Collins and the TTM, which was found to have been inadequate. Neither fine was manifestly excessive and it had not been wrong for the trial judge to conclude that the two defendants were equally responsible for the failings of the TTM. The various applications made by both defendants were therefore refused.
The contrast in outcomes of these two sets of appeals highlights the importance of the individual case circumstances when penalties are set.