Health and Safety and Corporate Manslaughter Quarterly Review - Q3 & Q4 2022

This quarterly health & safety and corporate manslaughter law update provides a summary of news stories in the period July 2022 – December 2022.

JULY

HEALTH AND SAFETY EXECUTIVE PUBLISHES WORKPLACE FATALITY FIGURES

According to figures published on 6 July 2022 by the Health and Safety Executive, the number of worker related deaths reduced in 2021/2022, continuing a long-term downward trend to the rate of fatal injuries for workers. Whilst, there were 80 more deaths than compared to the previous year, the numbers remain lower than pre-pandemic levels.

According to these new figures, 123 workers died in work-related accidents in 2021/2022. It was also revealed that there were 2,544 deaths in 2020 through past exposure to asbestos.

HEALTH BOARD FINED OVER DEATH OF VULNERABLE PATIENT

Cwm Taf Morgannwg Health Board were investigated by the Health and Safety Executive following an incident where a vulnerable patient left the hospital ward through an unsecured door. This led the patient into the icy conditions of hospital grounds and resulted in the patient falling and suffering a fatal injury to the head. The Board had already been served with an improvement notice due to another incident, which occurred in November 2019 where another patient left the hospital unnoticed and suffered a fatal injury. The Board was criticised for failing to act on the previous incidents.

The investigation concluded that Cwm Taf Morgannwg Health Board had breached sections 3(1) and 33(1)(a) of the Health and Safety at Work etc. Act 1974. They pleaded guilty and were fined £850,000 with full costs of £10,627.30 awarded.

B&M RETAIL LTD FINED AFTER CONTRACTOR INJURED IN WAREHOUSE

Following an incident in September 2018 where a contracted electrician was seriously injured after using a metal spanner to repair an electrical fault at a B&M Retail Ltd warehouse, the company pleaded guilty to breaching sections 2(1) and section 3(1) of the Health and Safety at Work Etc Act 1974. They were fined £1 million and ordered to pay costs of £4,978.

It was deemed that B&M Retail Ltd did not appoint a suitably competent person to plan and carry out the site work. The contractor’s employer, Dake Ltd, also pleaded guilty to a s.2 HSWA 1974 offence and fined £100.

 

AUGUST

A MONTH OF MILLION POUND FINES

Following B&M’s £1 million fine, August brought more successful prosecutions for the Health and Safety Executive.

On 3 August the HSE announced that Dyson Technology Limited pleaded guilty to breaching section 2(1) of the Health and Safety at Work etc Act 1974, following an incident where an employee was seriously injured.

Two employees were lifting a 1.5 tonne CNC milling machine using a five-tonne jack when it fell and landed on top of one of the employees. As a result, the individual sustained injuries to his head and his chest. He saved being crushed by the machine after it fortuitously landed on two toolboxes and the handle of another machine. The Health and Safety Executive deemed that Dyson Technology limited had not assessed the task, devised a safe system of work, or provided sufficient training. Dyson was fined £1.2m and ordered to pay costs of £11,511.

On the same day, the HSE revealed that the mining company, Cleveland Potash Limited had been fined £3.6 million. This followed an investigation by the Health and Safety Executive into two separate incidents during which two electricians suffered serious burns at a mine in Saltburn-by-the-Sea.

One incident occurred when an electrician unknowingly placed a vacuum cleaner nozzle into a live electrical chamber. On another, separate, occasion almost three years later, an electrician made contact with a live conductor during electrical testing work.

The Health and Safety Executive found deficiencies in the owner’s risk assessment of the mine, planning of works and shortfalls in providing warning about which parts of the electrical systems remained lived. Cleveland Potash Limited pleaded guilty to breaching section 2(1) and two counts of section 3(1) of the Health and Safety at Work Act 1974.

August also saw significant penalties levied against Fruehauf Ltd and Stagecoach Devon Ltd (£400,000 and £380,000 respectively) after they both pleaded guilty to breaches of the Health and Safety at Work Etc Act 1974. Fruehauf Ltd was found to have failed in having an adequate risk assessment and identification of the risks relating to the task, after a worker was trapped by a hydraulic arm and suffered a fractured back. Equally, Stagecoch was found to have not had in place a sufficient risk assessment after an employee was crushed between a reversing bus and a stationary vehicle and suffered life-changing injuries.

A SALIENT REMINDER FOR THE CONSTRUCTION INDUSTRY

On 4 August it was announced that civil engineering firm Howard Civil Engineering Ltd had been fined £600,000 after it pleaded guilty to breaching regulation 13(4)(b) of the Construction (Design and Management) Regulations 2015 and to breaching section 3(1) of the Health and Safety at Work Etc Act 1974. An investigation was launched after a seven-year-old boy had ventured onto the site and had become trapped in a drainage pipe. Tragically, the boy, Conley Thompson, had suffocated by the time he was found the next morning. The Health and Safety Executive found that there had been insufficient fencing in place to prevent unauthorised access to the site.

 

SEPTEMBER

CORPORATE MANSLAUGHTER CHARGES NOT PURSUED AGAINST WASTE FIRM FOLLOWING DEATH OF EMPLOYEE

In September 2022 an inquest into the death of Steven Hill was opened. Mr Hill, an employee of waste firm TK Lynskey, was operating heavy machinery to move waste on a large pile of aggregate underneath a 66,000-volt overhead power line, when he was electrocuted. He suffered burns to more than a third of his body and died later in hospital from his injuries.

The incident was initially investigated by South Yorkshire Police and members of the company’s management were interviewed under caution under suspicion of corporate manslaughter and potential breaches of health and safety legislation. However, South Yorkshire police stated that that the threshold for charges to be brought against the management team had not been met and so no further action was taken.

TWO COMPANIES FOUND GUILTY OF DEATH OF CONSTRUCTION WORKER

The Health and Safety Executive launched an investigation into two companies following the death of 18-year old Josh Disdel due to serious crush injuries. He was working in a manhole on a road when he was hit by a van being driven by another work colleague. The investigation showed that neither company put in place sufficient planning to ensure workers were not exposed to health and safety risks. It was also discovered that workers had not been trained to work on the road.

P & R Plant Hire (Lincolnshire) Limited pleaded guilty to breaching section 2(1) of the Health and Safety at Work etc Act 1974 and was fined £24,000 and costs of £2,264.87. D. Brown (Building Contractors) Limited was found guilty after trial of contravening section 3(1) of the Health and Safety at Work etc Act 1974 and fined £300,000. Both companies were ordered to pay £15,765.92 in costs.

MEXICHEM SPECIALTY COMPOUNDS LIMITED FINED £200,000

Mexichem Specialty Compounds Limited was found to have breached section 2(1) of the Health and Safety at Work etc Act 1974 following an incident were an employee suffered serious injuries to his hand whilst cleaning the manufacturing line at one of their sites.

They were fined £200,000 and ordered to pay costs of £7,846.78 after it was deemed that the company did not have a suitable and sufficient risk assessment or safe system of work in place for cleaning the bagging line in particular.

 

OCTOBER

FINES FOR FOOD COMPANIES AFTER WORKERS PULLED INTO MACHINES

In November 2020, a Nestle employee working in their factory in Newcastle upon Tyne, was dragged into a roller mechanism on a conveyor machine, leaving their arm trapped between the roller and the conveyer belt. Following a Health and Safety investigation, the company pleaded guilty to contravening of Regulation 11(1) of the Provision and Use of Work Equipment Regulations 1998 due to their inadequate risk assessment and use of dangerous parts. It was deemed foreseeable by the Health and Safety Executive that there was a clear risk of injury to employees. Nestle UK Ltd was fined £800,000. This decision comes after Nestle was fined £660,000 in 2021 for a similar incident at its Halifax factory.

On 13 October it was announced that Bernard Matthews Food Ltd had been fined £400,000 following two separate health and safety incidents. Both incidents involved employee being drawn into machines, with one employee left permanently paralysed as a result. It was considered that these incidents could have been avoided and the company failed to identify and manage risks in the workplace. Bernard Matthew’s Food Ltd pleaded guilty to breaching section 2(1) of the Health and Safety at Work etc. Act 1974 and, along with its fine, ordered to pay £15,000 in costs.

CONSTRUCTION - FIRE SAFETY RISKS PROSECUTED

S&S Quality Building Contractors Limited and its Director were found guilty of breaching the Health and Safety at Work etc. Act 1974, due to repeated failings to manage the risk of fire during work at their construction site.

Following concerns raised that people were sleeping on site, the Health and Safety Executive inspected the company premises. This inspection in turn identified failings in fire management. It was deemed that the site was poorly managed and construction work was being done in an unsafe manner, which could result in a fire.

The company had previously been the subject of health and safety interventions for fire risks, and at the time it was deemed that despite the company’s Director regularly attending the site in question, improvements had not been implemented.

The company was fined £600,000 and ordered to pay costs totalling over £36,000. The Director was sentenced to a community order and fine of £4,200.

 

NOVEMBER

TENANTS UNION CALLS FOR CHARGES AGAINST LOCAL COUNCIL FOLLOWING DEATH OF TWO YEAR OLD BOY

The Greater Manchester Tenants Union is calling for charges of corporate manslaughter to be brought against the Rochdale Borough Council following the death of two year old Awaab Ishak.

Following an inquest into his death, it was found that Awaab Ishak died after he developed a respiratory condition due to prolonged exposure to black mould, which was present in the social housing accommodation where he lived.

Charges are yet to be bought, although the Housing Ombudsman is carrying out an investigation into the Council.

TWO COMPANIES FINED FOLLOWING FATAL ACCIDENT OF HGV DRIVER

Joseph Ash Limited and LM Bateman and Company Limited have been fined for violations of section 2 (1) and 3 (1) of the Health and Safety at Work etc. Act 1974, following the death of a heavy goods vehicle driver who suffered fatal chest injuries while unstrapping a load on a trailer.

The Health and Safety Executive found that neither company had adequate arrangements in place for planning and restraining loads. This led to the goods being instable and falling from the vehicle when the load straps were released.

Joseph Ash Limited was fined £239,000 and LM Bateman and Company Limited was fined £120,000. Both were ordered to pay costs and victim surcharges.

 

DECEMBER

FDS WASTE SERVICES LTD CONVICTED FOLLOWING DEATH OF EMPLOYEE

In December 2018, an employee of FDS Waste Services Ltd died due to transport failures at their waste plant. After a trial in Winchester Crown Court, the company was found guilty on 22 December 2022 of corporate manslaughter. This represents a rare example of a corporate manslaughter conviction following a trial, rather than a guilty plea, and brings the number of convictions in 2022 to four (following none in 2021, one in 2020 and one in 2019).

The company was also convicted of violations of health and safety legislation and the company’s director was convicted of violation of section 37 of the Health and Safety at Work etc. Act 1974 for a transport offence.

The company and the director are due to be sentenced in 2023.

CHEMICAL COMPANY FINED FOR HEALTH AND SAFETY VIOLATIONS FOLLOWING EXPLOSION

The year ended with International Paint Limited being been fined £800,000 following an explosion at the company’s warehouse, leading to an employee sustaining life-changing injuries. The incident occurred when the employee was making paint in a large vessel, involving flammable liquids. As he was emptying resin pellets from a large bulk bag into the vessel an electrostatic spark was generated, igniting the flammable vapour. Following an investigation by the Health and Safety Executive, it was identified that the company had failed to put sufficient measures in place to control the risk.

The company pled guilty to breaching section 2(1) of the Health and Safety at Work Act 1974. Following the conviction, the HSE inspector Paul Wilson said: “This incident should serve as an important reminder to industry that fire and explosion can have devastating consequences. It is critical that employers fully assess the risk of fire and explosion including the risk from static discharges and put the necessary control measures in place.”

INFECTED BLOOD INQUIRY QUESTIONS POSSIBLE CORPORATE MANSLAUGHTER CHARGES AGAINST THE DEPARTMENT OF HEALTH

The Infected Blood Inquiry was launched back in 2017 by Theresa May to investigate the “Contaminated Blood Scandal”. This refers to a series of events between 1970s and 1980s during which 4,689 people were given infected blood and infected blood products. It is estimated that more than 3,000 people died as a result and, of the 1,243 people assessed to have been infected with HIV, less than 250 are still alive.

The Inquiry, chaired by Sir Brian Langstaff, started on 2 July 2018 with final oral submissions concluding on 3 February 2023. Whilst the Inquiry’s conclusions are yet to be determined, it is clear that some individuals or organisations will be criticised. This has been accepted by the Inquiry itself in its ‘Statement of Approach’ regarding warning letters, in which it said: “It is inevitable that in the course of the Inquiry’s proceedings criticisms will be made of individuals or organisations, whether by witnesses in their written statements or in their oral evidence, or in documents provided to the Inquiry, or otherwise. Furthermore, the Chair may in due course have to make findings and/or reach conclusions in relation to a number of such criticisms and his proposed findings or conclusions may involve the making of explicit and/or significant criticism of individuals and organisations”. Whilst the Inquiry cannot determine civil or criminal liability, calls for corporate manager prosecutions were made in December 2022 by lawyers representing core participants, echoing earlier calls by former Health Secretary, Andy Burnham.

 

Further Information

For further information on the issues raised in this blog post, please contact Alice Trotter or Sophie Wood.

ABOUT THE AUTHOR

Alice Trotter is a trainee solicitor at Kingsley Napley and is currently in her third seat with the Criminal Litigation team, having completed her second seat with the Corporate, Commercial and Finance team and her first seat in the Regulatory team.

Sophie Wood is a Senior Associate in the Criminal Litigation team with extensive experience in advising corporate and individual clients involved in a wide range of internal, criminal and regulatory investigations. Sophie has acted for individuals and companies involved in investigations brought by the Environment Agency, Health and Safety Executive and local authorities, and is a member of the firm’s cross-practice Health, Safety and Environment Group.