Welcome
to our new feature:
RHSS Consultants out and about…snapping interesting sights from their weekly travels.
This
week, Rob noticed this rubbish storage facility on a construction site!
Health and Safety in the news this
week
New sentencing guidelines
The
new sentencing guidelines for health & safety offences are in force from 1
February 2016. They were intended to increase the level of fines,
particularly for larger organisations. However, unintended consequences
of the way punishments are now calculated mean that judges will be forced to
hand out very much greater fines than expected and send many more directors,
managers and junior employees to jail for breaching health & safety laws.
The
Four Inflations
For most health and safety
breaches, the criminal law laid down by Parliament does not set an upper limit
to the size of the fine, so it is left to judges and magistrates in Court to
decide how the fine should ‘fit the crime’. To help the Court set a fair,
transparent and consistent tariff, the eminent judges and lawyers on the
Sentencing Council have created a set of guidelines now coming into force.
Close inspection of the new
sentencing guidelines shows that four inflationary factors are going to
increase radically the level of fines, yet only one of these factors was
intended. Similarly, the threshold for imprisonment will be reached very
much more easily than before. Let’s look briefly at the four inflationary
factors:
First
Inflation
The sentencing guidelines
introduce a structured approach that the court must follow. This involves
plugging ‘culpability’, ‘likelihood’ and ‘harm’ factors into a series of tables
to reach recommended starting point fines, as well as ranges of fines above and
below the starting points. Similarly for imprisonment of individuals, the
tables stipulate ranges of prison sentences above and below various starting points.
These tables were calculated by
reviewing past sentences and then, particularly for larger companies,
increasing the levels of fines. This first inflation was
intended. It was designed to accommodate the Court of Appeal’s repeated
view that health and safety fines have generally been too low and need to be
increased sufficiently to send a message to directors and shareholders.
Indeed, the Court of Appeal envisages fines exceeding £100 million for the
worst health and safety breaches by the largest companies.
But the Court of Appeal has not
recommended massive increases across the board, even for less serious offences
by smaller companies and by individuals. Yet this will be the effect of
the next three inflations.
Second
Inflation
The sentencing guidelines
switch from a mainly outcome based approach (what was the seriousness of the
injury) to a risk based approach (how serious was the harm that was
risked). There are justifiable reasons for this switch but its
inflationary effect on sentences was not factored into the calculations.
How does this second inflation work?
Suppose an object falls from a
crane and crushes someone’s toes. Traditionally, that would be prosecuted
and sentenced very much more leniently than if the same object had hit
someone’s head and caused a fatality. Under the new risk based approach,
the toe injury is seen as having involved a high risk of death or disability
and is plugged into the computation at the level calculated for a fatality.
The majority of non-fatal
incidents could have been more serious, so these will be inflated up to the
level of fine corresponding to that more serious injury.
Third Inflation
If the offence exposed not just
one but a number of people to the risk of harm, the Court is directed to ramp
the punishment up to the next level. As a seasoned health and safety
defence lawyer, I struggle to think of a case where the breach only exposed one
person to a risk of harm. For example, if other people could have been
hit by the object falling from the crane, this third inflation will apply.
Fourth
Inflation
Finally, if there was actual
harm (unless more minor than could be expected), the Court is also directed to
ramp the punishment up to the next level. Since most prosecutions arise
after someone has been injured, this fourth inflation will almost always
apply.
Summary
The combined effect of these
last three unintended inflations will mean that criminal sentences will tend to
converge at the higher end of a scale that has already been substantially
increased by the first intended inflation. The Court is given some
discretion but not enough to depart materially from the stipulated
calculations.
For example, it is going to be
difficult for an individual convicted offender to escape a jail sentence if he
or she was aware of a risk of being in breach, nobody suffered an injury but
several people were exposed to a ‘medium’ likelihood of death or
disability. This is a very significant reduction in the threshold for
imprisonment for health and safety offences.
It has never been more
important to bring the importance of health and safety to the attention of
board members and senior executives.
Source: www.shponline.co.uk
Major construction firm fined £1million after death of worker
Construction firm Balfour
Beatty has been fined after a worker lost his life whilst repairing a central
reservation barrier damaged in a road traffic collision.
Canterbury Crown Court heard
how, on 1 October 2012, a team was sent out by Balfour Beatty Civil Engineering
Limited, a subsidiary of Balfour Beatty PLC, to install temporary traffic
management in order to repair barriers on the A2 at the location of a collision
site.
The crew were trying to remove
the footings of a post that had snapped off using a lorry mounted crane. The
lorry mounted crane slipped from the concrete footing, and swung back towards
the barrier, hitting the worker on the head. Larry Newman, aged 37, sustained
severe head injuries and was pronounced dead at the scene.
Balfour Beatty Civil
Engineering Limited, of Churchill Place, Canary Wharf, London, was fined a
total of £1million, and ordered to pay £14,977 in costs after pleading guilty to
offences under Section 2(1) and Section 3(1) of the Health and Safety at Work
etc. Act 1974.
After the hearing, HSE
inspector Andrew Cousins said: “This was an entirely preventable incident that
could have been averted by simply creating and implementing a safe system of
work. If a suitably sized excavator had been used to remove the footing
mechanically it would have prevented this tragic loss of life completely.
“Employers have a
responsibility to create safe systems of work for hazardous activities that
their workers may be undertaking. The workers should be trained in safe systems
of working and adequately supervised. Safety needs to be proactively managed
and not just left to chance”.
Firm fined for safety failings after worker fell four metres
from scaffolding
A scaffolding company has been
fined after a worker fell over four metres suffering severe injuries.
Colchester Magistrates’ Court
heard how a 39 year old worker fell from the second lift of a scaffold while it
was being dismantled. Mr Hemphill (39 years old) fell approximately 5m before
striking the ground. Mr Hemphill
collided with the scaffolding twice before finally hitting the ground below.
He sustained nine broken ribs,
a punctured lung, fractured skull and a fractured spleen. He spent five days in
hospital and at the time of the accident was expected to have at least 3 to 4
months off work.
An investigation by the HSE
into the incident which occurred on 23 February 2015 found that there were no
guard rails on the area from where Mr Hemphill was working and he was not
provided with a harness and lanyard to clip on with. As a result there was
nothing to stop him from falling.
SP Scaffolding (East Anglia)
Limited of Gosbecks Road, Colchester, Essex pleaded guilty to breaching Work at
height Regulations 2005, regulation 6(3) and were fined £8,000 with costs of
£3,003.
Worker killed whilst assisting a reversing lorry
A company has been fined for
safety failings after the death of an employee.
Mold Crown Court heard how
Philip Ledward, aged 62, an employee of Arkenfield Stable Hire Limited (ASHL),
was assisting one of the company’s lorry drivers when he was struck by a
passing car and received fatal injuries.
An investigation by the HSE
into the incident, which occurred in November 2011, at Boundary Garage,
Ellesmere Road, Bronington, found that there was no safe system of work in
place for controlling risks from workplace transport.
Arkenfield Stable Hire Limited,
of Birch House, Back Lane, Coton, Whitchurch, was fined a total of £7,500 and
ordered to pay costs of £5,000 after pleading guilty to an offence under
Section 2 (1) of the Health and Safety at Work etc Act 1974.
Haulage firm sentenced after HGV crushes worker to death
A haulage firm has been ordered
to pay £90,000 in fines and costs after an employee was crushed to death by a
runaway lorry.
Tony Schulze had been trying to
connect a cab to a lorry trailer when the incident happened at Freight First
Ltd’s premises on the Astmoor Industrial Estate on Goddard Road on 22 January
2011.
The company was prosecuted by
the HSE after an investigation found the 49-year-old from Runcorn did not
normally drive articulated vehicles, had not received training on coupling
lorries, and there was no written procedure for the work.
Liverpool Crown Court heard
that Mr Schulze had been working at the site at the weekend, and had been asked
to line up the trailers in the company’s small yard so they could be used for
deliveries and pick-ups on the Monday morning.
When Mr Schulze released the
brakes on the trailer, it began to roll forwards on the sloping yard. He ran
down the side of the trailer, in front on the cab and attempted to jump into
the open door but the HGV struck another vehicle in the yard, crushing him
between the door and cab frame.
Mr Schulze’s colleagues tried
to rescue him before the emergency services arrived, but he died at the scene.
The HSE’s investigation found
there was not a safe system of work for the coupling and uncoupling of
vehicles, and that the handbrake in the cab had not been applied.
Although Freight First Ltd had
prepared a general risk assessment in May 2010, it did not deal with the task
of connecting cabs to trailers, or identify the risk of runaway vehicles.
The court was told that an
external health and safety adviser had highlighted the lack of a risk
assessment in December 2010 – a month before Mr Schulze’s death – but no action
was taken.
Freight First Ltd, of
Whitehouse Industrial Estate, Aston Fields Road, Preston Brook, Runcorn, was
fined £90,000 and ordered to pay £67,500 in prosecution costs after being found
guilty of a breach of Section 2 (1) of the Health and Safety at Work etc. Act
1974.
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