Legal position on criminal and civil proceedings March 2014

Transcription

1 Legal position on criminal and civil proceedings March 2014 Hayley Saunders, Senior Associate 1

2 HSE Statistics October workers killed at work in 2012/ ,222 RIDDOR reports 597 cases prosecuted by HSE and Procurator Fiscal with 95% success rate 13,503 enforcement notices down on previous year by 15% Estimated over-7-day injuries, nonfatal injuries reported by employers Most frequent causes of injury are manual handling, slips and trips and falls from height Highest rates in manual occupations Higher rates for less experienced workers Higher rates for men than for women 2

3 Criminal liability Manslaughter - Corporate - Gross negligence Health and Safety at Work etc Act Section 2 - duty to employees - Section 3 - duty to non employees - Section 7 - employee duty - Section 37 - director, senior manager duty 3

4 Corporate Manslaughter where are we at? CPS have opened 141 corporate manslaughter investigations since 2009 There have been six convictions all but one involved charges against the directors also Four more companies are awaiting trial Some 56 cases are currently being investigated by CPS More charges will follow as investigations are complex and can take a very long time before coming to trial 4

5 The law a recap An organisation is guilty of an offence if the way in which its activities are managed or organised- (a) causes a person s death, and (b) amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased. An organisation is guilty of an offence only if the way in which its activities are managed or organised by its senior management is a substantial element of the breach. 5

6 Corporate Manslaughter Lion Steel Equipment fined 480k + costs Failure to risk assess maintenance tasks (focus had been on workers on shop floor) Prosecution evidence relied on correspondence with insurers, insurance brokers and health & safety consultants Make sure such correspondence is accurate reflection of actual situation Prosecution intended to call insurers claims inspector who undertook a post accident investigation. Not legally privileged. Judge critical of failure of insurers, brokers, safety advisors and HSE to identify risk of employees going on roof Directors prosecuted but insufficient evidence. CPS strategy to target directors and company to maximise negotiating power. 6

7 Health and Safety what the prosecution have to prove There does not have to be an accident or incident for an offence to be committed. The mere exposure of employees or others to risk is sufficient 7

8 The cost of failure Court of Appeal January 2014 Sellafield Ltd Failure to segregate waste five bags out of five thousand. Four were handled at landfill site. Court accepted there was no harm and the risk of harm was low. Medium culpability of management custom within company, too lax and to a degree complacent. Turnover billion ( 30.7 million per week). Profit of 29m or 560k per week. Fine of 700k upheld 8

9 The cost of failure Court of Appeal January 2014 Network Rail extremely serious but non fatal accident at level crossing. Actual harm was serious and even greater harm foreseeable. Serious and persistent culpability of local operational management. A not for dividend company. Turnover - 6.2billion ( 119milion per week). Profit of 750m per year ( 14.4m per week). Fine of 500k upheld and Judge described as having given a very generous discount for the mitigation advanced. Fine must be large enough to bring message home to shareholders 9

10 Fire Safety Honeymoon period over Fire authorities bringing more prosecutions Personal prosecutions high on agenda Hotel owner and a Fire Risk Assessor both jailed for eight months even though there was no fire or injury Separate case, hotel and director fined after failures detected after a fire but not causative of it. Director fined 180k. Hotel 30k Courts are imposing big fines and imprisonment regardless of actual fire or any loss of life 10

11 Personal Liability As at October 2013, (excluding driving offences and asbestos waste dumping), there have been 89 individuals who, since 1975 have received an immediate or suspended prison sentence for Health & Safety at Work offences Of those, 78 have occurred since May 2008 Additional 46 for manslaughter, (since 2003 this has always resulted in immediate imprisonment) 11

12 What makes a director liable under Health and Safety legislation? A breach of statute plus: Consent Connivance Attributable to any neglect 12

13 R v P Ltd Prosecution of MD following fatal accident involving a fork lift truck and child Issue was meaning of neglect Held offence committed if he knew of the relevant facts giving rise to the breach or if he ought to have been put on enquiry as to whether the relevant safety procedures were in place Do not have to prove actual knowledge, just that he or she should have known 13

14 R-v- McGee Gross Negligence Manslaughter charge (+ sec 7 HSWA) following death of teenager leaning against a train on which he was guard. He gave signal to move off and victim fell between platform and train. Train stopped after 9 metres. Convicted after trail. Teenager 3 times over drink drive limit and drugs in blood. Judge found he should have known almost at a glance that victim vulnerable to losing balance. That Guard had been repeatedly trained in safety. Guard had clear view, in complete control of train and intoxication did not relieve duty of care Mitigation Negligence can be measured in seconds. No previous. 20 years conscientious service on railways. Suffered PTS would have to live with heavy burden He was jailed for 5 years 14

15 R v- Paul Burke Durham Crown Court Unusual as prosecution of individual supervisor with no action against his employer His employer contracted to remove asbestos cement roof sheets, system of work was to remove from beneath using scissor lifts Difficulties of access meant Burke instructed workers to work from roof itself. One of men fell through fragile roof HSE accepted that company did not know of change of method and that Burke had consulted no one. Personal prosecution was under Work at Height regulations essentially by permitting unsafe working practice. He was fined 1k and ordered to pay 9.7k costs 15

16 Conflict of Interest Request for personal interview will give rise to a conflict of interest If so, who will pay for the representation? 16

17 Civil Liability for accidents Strict Liability in civil damages as a result of a breach of statutory duty for injuries incurred after 1 st October 2013 has been removed. In future employee will have to prove common law negligence rather than the case being automatically won. 17

18 Health and Safety Management A legal necessity A stakeholder requirement A moral duty A financial benefit A protection from personal and corporate criminal liability 18

19 Benefits of Good Health and Safety Performance Improves efficiency Caring employers Better staff retention Integral part of modern management Reduces accident claims and insurance premiums Guards reputation Important to practice what you preach 19

20 How exposed are you to prosecution? Out of date policies/procedures Poor implementation of procedures Lack of top level commitment Perception that health and safety is down to employees/health and safety department A laissez-faire, complacent culture Lack of allocated resources What would your employees say about your organisation? 20

21 Change the culture Institute of Directors and HSE Joint Publication Leading health and safety at work Leadership actions for Directors and Board members Essential principles: - Strong, active leadership from the top - Worker involvement - Assessment and review Get it right and celebrate the good results! 21

22 Questions? 22