April This month s round up consists of: In Court:

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1 April 2015 This month s round up consists of: In Court: 1. Pyranha Mouldings Ltd sentenced for corporate manslaughter (10 th conviction) 2. Eleventh UK corporate manslaughter conviction 3. Nicole Enterprises Ltd pleads guilty to corporate manslaughter 4. Shellfish boat skipper jailed following death of diver 5. Transport firm fined 500k after worker is crushed between two lorries 6. Fine and suspended sentence after warehouse roof death General News 7. Government s final report on health and safety concerns 8. Cap on Magistrates' Courts sentencing powers lifted 9. Proposed HSWA self-employed exemption amended 10. Construction (Design and Management) Regulations 2015

2 Pyranha Mouldings Ltd sentenced for corporate manslaughter (10 th corporate manslaughter con onviction) On 12 January 2015 following a trial at Liverpool Crown Court, Pyranha Mouldings Ltd was found guilty of: corporate manslaughter, contrary to section 1 of the Corporate Manslaughter and Corporate Homicide Act 2007; failing to ensure the health, safety and welfare of employees pursuant to section 2(1) of the Health and Safety at Work Act 1974; and failing to ensure the safety of an article designed, manufactured and supplied for use at work pursuant to section 6(1)(a) of the Health and Safety at Work Act Peter Mackereth (Director of Pyranha Mouldings Ltd) was also guilty of: Being an officer of a body corporate which committed an offence under the Health and Safety at Work Act 1974 committed with the consent, connivance or being attributable to the neglect of the office holder, contrary to section 33(1)(a) and s37(1) of the Health and Safety at Work Act 1974 as amended On 25 March 2015 at the Royal Courts of Justice, Company director Peter Mackereth was sentenced to nine months in prison suspended for two years and fined 25,000 and Pyranha Mouldings Ltd was fined 200,000. Pyranha Mouldings Ltd and Peter Mackereth were also asked to pay costs of 90,000 between them. Alan Catterall was a supervisor for Pyranha Mouldings Ltd, a company which manufactures plastic kayaks and canoes. On the morning of 23 December 2010 a fault developed on one of the ovens used to create the kayak moulds, which was then out of service whilst maintenance work was carried out. Once the initial fault was fixed Mr Catterall began working on the machine, however the oven was turned back on with Mr Catterall inside. Mr Catterall had no means of escape and no alarm, due to the unique design of the oven which had been developed by Pyranha Mouldings Ltd. Mark Auty, senior specialist prosecutor with the CPS said, "Mr Catterall's death was caused by the serious failings of his employer, Pyranha Mouldings Ltd. This wasn't just a tragic situation; it was a tragedy waiting to happen. Mr Catterall's death is all the more upsetting because it was avoidable. By choosing to take on the design and installation of the machine, Pyranha Mouldings assumed responsibility for its safety. However, the machine clearly endangered the safety of those working with it, including Mr Catterall. By their verdict, the jury have decided that Pyranha Mouldings Ltd is responsible for the death of Alan Catterall. This is a sad and distressing case, and our thoughts are with the family of Alan Catterall."

3 Eleventh UK corporate manslaughter conviction A UK building firm, Peter Mason Ltd, has become the eleventh company to be convicted for corporate manslaughter. It was fined 200,000 for the corporate manslaughter offence under the Corporate Manslaughter and Homicide Act 2007, and 20,000 to a charge of failing to ensure the safety of its employees under the Health and Safety at Work Act Peter Mason, owner of the company, was also convicted and sentenced to eight months in prison, suspended for two years; 200 hours unpaid work; a publicity order to advertise what happened on the company website for a set period of time; to take out a half page spread in the local newspaper; and pay costs of 31, The employee had been working on the roof and had fallen through a skylight from a height of 7.6 metres onto a concrete floor. The investigating inspector at the HSE stated that the company had done nothing to ensure he was safe whilst working on a fragile roof. He said that the owner of the company knew the clear panels on the roof were not safe to walk on, but neither he nor his company provided any equipment, such as fitting scaffolding or netting under the fragile panels, or covers over the panels.

4 Nicole Enterprises Ltd pleads guilty to corporate manslaughter The managing director of a caravan park has pleaded guilty on behalf of one of his companies to the corporate manslaughter of Thomas Houston, who died after being crushed by a static caravan, at Silvercove Caravan Park near Kilkeel, County Down in February Alan Milne, of Armagh Road, Newry, appeared at Newry Crown Court in a personal capacity and representing two of his companies. He pleaded guilty on behalf of one of his companies, Nicole Enterprises, to the corporate manslaughter of Mr Houston and to breaching health and safety regulations by failing to ensure the health, safety and welfare of employees. However he denied a charge of manslaughter in a personal capacity in relation to the death. Additionally, as the managing director of Dieci Ltd, he pleaded not guilty to a count of corporate manslaughter and to a further charge of breaching health and safety regulations by failing to properly assess risks posed to employees. Following the mixed pleas, a prosecuting lawyer told Newry Crown Court there were now matters for the Crown to consider but added that in all likelihood a trial will not be necessary. A date is yet to be set for sentence.

5 Shellfish boat skipper jailed following death of diver The skipper of a boat which was being used to fish for razor clams in Largo Bay, Leven, has been jailed for nine months following the death of diver James Irvine, 42, who went missing during a dive in March His body was later discovered by police divers on the seabed. Guthrie Melville, 60, the skipper of the boat Solstice was sentenced at Stirling Sheriff Court for health and safety regulatory failings that lead to the Mr Irvine s death. It was heard how on 24 March 2011, Mr Irvine was scuba diving from Solstice to collect shellfish in the tidal waters of the River Forth Estuary, known as Largo Bay, at a location south of the village of Lower Largo, Fife. During the dive, Mr Irvine descended as normal, but after some time, the people in the boat were unable to see any air bubbles on the surface of the water from his breathing apparatus, and after looking for some time, contacted the emergency services to report the diver missing. A search was conducted by the Coastguard, and a Police Scotland dive team. On 25 March 2011 Mr Irvine s body was found lying face up on the seabed without either of his air supply regulators in his mouth. The court heard that Mr Irvine, an unemployed kitchen fitter, had been doing his first day s work as a diver. His only dive training had been a two-week holiday course in Turkey. Following an investigation it was found that Mr Melville, as the master of the vessel and the dive contractor had: failed to assess the risks to the health and safety of Mr Irvine; failed to provide appropriate supervision, equipment including a means of communication and essential safety gear; failed to ensure there were sufficient people who were competent to take part in the diving project; and failed to have a stand by diver in place to provide assistance to Mr Irvine in the event of a reasonably foreseeable emergency. It was also found that Mr Melville had displayed the same lack of regard to these essential health and safety regulations as far back as April 2005 and as a result exposed a number of other divers to serious risk. Guthrie Melville was found guilty after trial at Stirling Sheriff Court on two charges on indictment contrary to The Diving at Work Regulations 1997, regulation 6 and the Health and Safety at Work etc. Act 1974, section 33(1)(c). Judith Tetlow, HSE principal inspector of Diving, said: This dive resulted in tragic consequences which could have been avoided had Guthrie Melville planned the activity properly using competent and appropriately qualified divers. Diving is a high hazard activity, but if it is conducted properly, in accordance with the regulations and guidance, the risks can be managed. The minimum team size normally required when diving for shellfish is three a supervisor, a working diver, and a standby diver. Additional people may be required to operate the boat and to assist in an emergency. In addition, simple measures taken to ensure that the diver in trouble can communicate to the dive supervisor and that the diver is marked by a line and float, or by a line to an attendant on the dive boat, maximise the chance of a successful outcome to an emergency situation. We hope this sentence will send a strong message to the shellfish diving industry that employers have a duty to plan and carry out work properly in order to protect workers.

6 Transport firm fined 500k after worker is crushed between two lorries A Cheshire-based transport company has been fined 500,000 after an employee suffered horrific injuries, including broken bones in her back and a punctured lung, when she was crushed between two lorries. Warwick Crown Court heard on 16 March that Jennifer Rose was lucky to be alive after the incident at Tip Trailer Services Griff Lane depot in Nuneaton on 9 April Mrs Rose, 38, who now lives in Hull, broke 13 bones in her back, shoulders and ribs, and punctured a lung. The incident left her with severe head injuries, impaired vision and she required a tracheotomy. She suffered a cardiac arrest and was in intensive care for ten days. Mrs Rose, who has a young son, needed to wear a body brace for four months and was confined to a wheelchair for some months although she has since regained some mobility. She still requires weekly physiotherapy. An investigation by HSE found Mrs Rose was acting as a banksman, assisting a lorry driver to reverse park on a slope, at the time of the incident. The driver decoupled his trailer without engaging its parking brake, causing it to roll back and trap her between the two vehicles. The investigation found TIP Trailer Services regularly allowed vehicles to park on a slope without the provision of chocks or similar devices. The company had no monitoring system to check whether drivers were applying their handbrakes properly. The slope ended on a public road, so the risks were not just to pedestrians on site but also to passing pedestrians and drivers. TIP Europe Ltd, of Market Street, Altrincham, Cheshire, trading as Tip Trailer Services, pleaded guilty to two breaches of Sections 2 and 3 of the Health and Safety at Work etc. Act 1974, and was fined a total of 500,000 and ordered to pay a further 56,938 in costs. This surprisingly high level of fine for a non-fatal case (when compared to previous fines imposed in corporate manslaughter cases) might indicate that members of the judiciary are already starting to take into consideration the newly proposed Sentencing Guidelines in relation to health and safety offences. It will be interesting to see over the coming months whether this trend continues to develop until the Guidelines are fully implemented as anticipated in November 2015.

7 Fine and suspended sentence after warehouse roof death A Lancashire-based toy distributor and a builder have been sentenced after a worker died when he fell nine metres through a fragile plastic panel in a warehouse roof in July Craig Gray, 39, from Fleetwood, had been helping to clean the roof at Halsall Toys Europe Ltd as debris had been washing down the roof and into the gutters, causing them to overflow into the warehouse below. Four days into the job he stood on a clear panel designed to let in light, which gave way sending him nine metres to the concrete floor below. He died at the scene. Halsall Toys had arranged with David Plant, an unemployed builder, for the roof cleaning work to be done, but did not carry out any checks to make sure he was competent. Mr Plant and Mr Gray had worked on the roof, which covers 36,000 square feet, without any preparation work or planning having taken place in advance. They failed to use harnesses or any other equipment to keep them safe. The company and builder David Plant were both prosecuted by HSE on 20 March 2015, after an investigation found no safety measures had been put in place to make sure the work could be carried out safely. Halsall Toys Europe Ltd pleaded guilty to a single breach of the Health and Safety at Work etc. Act 1974 by failing to ensure the safety of Mr Gray. The company, of Copse Road in Fleetwood, was fined 200,000 and ordered to pay 10,483 towards the cost of the prosecution. David Plant, 60, of Shetland Road in Blackpool, was given a 6 month prison sentence, suspended for 12 months, after being found guilty of a breach of the Work at Height Regulations 2005 by failing to make sure the work was carried out safely. Speaking after the hearing, HSE inspector Allen Shute said: Craig Gray should never have been allowed onto the warehouse roof without being given suitable training and equipment, but both Halsall Toys and David Plant allowed his life to be put in danger. Halsall Toys hired Mr Plant to carry out the work despite him not having any previous experience of working on industrial roofs. The firm should have carried out checks to make sure the work would be carried out safely. Mr Plant also had a legal duty to make sure the right equipment was used for the job, whether it was using harnesses or simply placing covers over the fragile roof panels to remove the risk of them collapsing. Sadly incidents of workers falling through warehouse roofs are all too common, and it s vital firms do more to make sure this kind of work is carried out safely and by competent people.

8 Government s final report on health and safety reforms The final report on the implementation of health and safety reforms has been published by the Department of Work and Pensions. The report is the final update on the work done on implementing Professor Lofstedt s recommendations, as well as the recommendations in Lord Young of Graffham s earlier report Common Sense, Common Safety. The HSE commented that the final progress report marks a major milestone in the achievement HSE has made in delivering reforms to health and safety legislation and guidance. Dr Richard Judge, chief executive of the regulatory body, added that HSE had made significant progress in reducing regulatory burdens for business by helping them understand what they need to do to keep their workers safe. He added that they had undertaken an extensive guidance review and reduced the overall stock of legislation by 50 per cent. The full report is available to read here:

9 Cap on Magistrates' Courts sentencing powers lifted On 12 March 2015, section 85 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) came into force which has the effect of increasing the maximum level of fine to Magistrates Courts (previously 20,000 for most health and safety offences) to an unlimited amount. The increase will only apply (a) in respect of offences committed after 12 March 2015; and (b) to England and Wales but not to Northern Ireland or Scotland. While at first glance the consequence of section 85 LASPO should mean that more cases can be dealt with by the Magistrates Court because their powers of sentence will be sufficient, Annex 3 of the Criminal Practice Direction has been amended to indicate the types of case in which must be dealt with by an authorised District Judge, rather than a lay panel. This includes: cases involving death or significant, life changing injury or a high risk of death or significant, life changing injury; cases where the defendant corporation has a turnover in excess of 10 million but does not exceed 250 million, and has acted in a deliberate, reckless or negligent manner; cases where the defendant corporation has a turnover in excess of 250 million; cases where the court will be expected to analyse complex company accounts; and high profile cases or ones of an exceptionally sensitive nature. In the event that a case falls into any of the above categories, the Prosecution is required to notify the court 7 days before the first hearing so that a District Judge can be allocated. Where a District Judge is not appointed at the first hearing, the court must adjourn the case. This provision only applies when the offence has been committed after 12 March In addition, despite the Magistrates' Court having maximum fines available, there is a further discretion available to allocate a case to the Crown Court for sentence under section 3(2)(a) of the Powers of Criminal Courts (Sentencing) Act This section provides that where the court is of the opinion the offence or combination of offences make it so serious that a greater punishment should be inflicted, then then Crown Court should deal with the case as though the person/corporate body has been convicted on indictment. Practical Implications Any client who has been through this process before will recall that it is notoriously difficult to gauge whether Magistrates will accept jurisdiction (except in cases involving death or serious injury). These new provisions may therefore provide some clarity. However, even if it is apparent a matter should remain in the Magistrates as a result of these provisions, the level of fines will still remain difficult to predict with any certainty. The Magistrates' Court Sentencing Guidelines (February 2014) will still apply, which provide the following guidance to the Bench: 'Particular care needs to be taken when considering whether to accept jurisdiction or to commit a case to the Crown Court, especially when the defendant is a large company'. While the new provisions do provide more guidance on what might be termed a 'large company', it will be smaller companies that will continue to suffer as a result of the uncertainty whilst it becomes clear how these provisions will actually be applied. In addition, the new provisions will also increase potential inconsistency of fines as there is now no cap, or limit on the fines available, until such time a the new Sentencing Guidelines are implemented (they remain under ongoing consultation). As such penalties are likely to vary greatly across England and Wales.

10 Serious consideration therefore need to be given to decisions by clients as to whether it is in their best interest to indicate guilty pleas in the magistrates court and run the risk of being sentenced there, or whether consideration should be given to electing for a trial in the Crown Court and then indicating guilty pleas at the earliest opportunity following committal to the Crown Court jurisdiction.

11 Proposed HSWA self-employed exemption amended Between 7 July and 31 August 2014 the HSE sought views on their proposal to exempt certain self-employed persons from Section 3(2) of the Health & Safety at Work etc. Act 1974 (HSWA). The proposal arose from the government-commissioned 2011 Löfstedt Report 'Reclaiming health and safety for all', which recommended that self-employed persons be exempt from health and safety law where they pose no potential risk of harm to others through their work activity. At present, section 3(2) of HSWA, places general duties on everyone 'at work' including the self-employed. It states that: 'It shall be the duty of every self-employed person to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that he and other persons (not being his employees) who may be affected thereby are not thereby exposed to risks to their health and safety'. Section 53 of HSWA gives a broad definition of a self-employed person. It states that a 'self-employed person means an individual who works for gain or reward otherwise than under a contract of employment, whether or not he himself employs others'. The proposed change to section 3(2) HSWA, which is due to be implemented in the Deregulation Act 2015, will mean that the self-employed will be exempt unless they are carrying out an undertaking of a prescribed description 1, in which case the undertaking must be carried out so far as is reasonably practicable that the self-employed person and others (who are not his employees) are not exposed to risks to their health and safety. Last month when discussing the proposed amendment, the House of Lords have considered implementing a new Section 3(2)A, which would mean that when considering whether the self-employed should be on the prescribed list, a decision would also have to be made about whether others, including any employees, would thereby be exposed to health and safety risks. The wording adopted by the House of Lords in a debate on the proposed change is: A description of undertaking included in regulations under subsection (2) may be framed by reference to: (a) The type of activities carried out by the undertaking, where those activities are carried out or any other feature of the undertaking; (b) Whether persons who may be affected by the conduct of the undertaking, other than the self-employed person (or his employees), may thereby be exposed to risks to their health and safety. This may mean that the proposed list of areas where self-employed are automatically covered by HSWA will increase beyond those originally envisaged. However, this proposed change has come under universal criticism on the basis that if the section is implemented, it would remain unclear whether or not the self-employed from certain industries were covered or not. In response, Lord Wallace of Saltaire said that the amendment would: 1. address concerns that the original proposal to amend HSWA would lead to some self-employed who pose a risk to health and safety being exempt; and 1 A prescribed list of undertakings (according to draft regulations) where the self employed would still be covered by the HSWA include agriculture, forestry, construction, design, health and social care, and asbestos, however this is yet to be finalised.

12 2. enable the government to make regulations which retained s.3(2) duties on all self-employed person who conduct specified high hazard work activities, as well as those who may expose others to risks of their health and safety. It is also understood that once the amended section is finalised (after the general election), the HSE is to produce guidance to address the above issues, and to supplement existing guidance which explains in practical terms what self-employed persons need to do to comply with the relevant law and to limit the possibility of incorrectly assessing whether their work activities may expose other persons to risks to their health and safety. While this section is not yet in force, it is important that those who are self-employed keep abreast of the changes that are to be made. Weightmans LLP will be producing a second update once the section has been finalised, with confirmation of the implementation due date.

13 Construction (Design and Management) Regulations 2015 Subject to Parliamentary approval, new Construction (Design and Management) Regulations 2015 (CDM 2015) will come into force on 6 April In order to assist Dutyholders, the HSE have published draft legal guidance which is available on their website: (N.B. The Regulations and the draft legal series guidance may be subject to change while the Regulations are awaiting Parliamentary approval. The final version of the legal series guidance to support CDM 2015 will be available on 6 April 2015). So what is set to change? 1. Principal designer. The replacement of the CDM co-ordinator role (under CDM 2007) by principal designer. This means that the responsibility for coordination of the pre-construction phase which is crucial to the management of any successful construction project will rest with an existing member of the design team. 2. Client. The new Regulations recognise the influence and importance of the client as the head of the supply chain and they are best placed to set standards throughout a project. 3. Competence. This will be split into its component parts of skills, knowledge, training and experience, and - if it relates to an organisation - organisational capability. This will provide clarity and help the industry to both assess and demonstrate that construction project teams have the right attributes to deliver a healthy and safe project. The technical standards set out in Part 4 of the new Regulations will remain essentially unchanged from those in guidance related to CDM There are also a series of draft industry guides available for the five dutyholders under CDM 2015, and one for workers. These are available before the Regulations come into force and may be subject to change. They set out, in practical terms, what actions are required to deliver a safe and healthy construction project. When CDM 2015 comes into force on 6 April 2015, there are transitional arrangements in place that will run for six months from 6 April 2015 to 6 October This update does not attempt to provide a full analysis of those matters with which it deals and is provided for general information purposes only. This update is not intended to constitute legal advice and should not be treated as a substitute for legal advice. Weightmans accepts no responsibility for any loss, which may arise from reliance on the information in this update. The copyright in this update is owned by Weightmans Data Protection Act: Pursuant to the Data Protection Act 1998, your name may be retained on our marketing database. The database enables us to select contacts to receive a variety of marketing materials including our legal update service, newsletters and invites to seminars and events. It details your name address telephone fax website mailing requirements and other comments if any. Please ensure you update our marketing team with any changes. You have the right to correct any data that relates to you. You should contact James Holman, our Data Protection Officer in writing, at 100 Old Hall Street, L3 9QJ with any complaints. The data will be retained for as long as we consider it appropriate and is for our own internal use only.