Health and Safety / Corporate Manslaughter Quarterly Update – Q2 2023

This quarterly update provides a summary of a selection of news stories relating to health and safety investigations and prosecutions, as well as key corporate manslaughter cases, from the period April – June 2023.
 

APRIL

Enforcement action against companies following the hospitalisation of employee

Two construction companies were sentenced after pleading guilty to breaches of the Construction (Design and Management) Regulations 2015. This followed an incident where a worker was seriously injured after being struck by a 124kg panel at a construction site in Jesmond, Newcastle. The worker was hit by the panel while lifting it with a tower crane. The structured insulated panel (SIP) struck steelwork and fell on the worker, causing him to suffer fractures to his collarbone, shoulder blade, left ankle and left rib, requiring a hospital stay of nearly two weeks.

The HSE investigation revealed that Tolent Construction Limited had failed to adequately plan, manage, and monitor the construction phase. This included the failure to develop a suitable lift plan for the individual SIPs, neglecting to address safe lifting procedures, proximity hazards, and control measures during the lifting operation.

Clad Build UK Limited, the contractor responsible for the design, supply, and installation of the SIPs, was also found to have failed in planning, managing, and monitoring the work. The HSE found that the company had not provided the necessary information and instruction to workers on preparing the SIPs for lifting, and had failed to effectively supervise and monitor the work carried out by a sub-contractor under their control.

Tolent Construction Limited (now in administration) was fined £1,000 with additional costs, while Clad Build UK Limited received a fine of £12,000, plus costs. Sentencing Judge, James Wood KC, stated that had Tolent not been in administration, it would have received a fine of £1m.

£800,000 penalty following the death of a child in a manhole

R.J. McLeod (Contractors) Limited, a Scottish civil engineering contracting company, received a fine of £800,000 for safety breaches following the death of a 10-year-old boy on a construction site in Glasgow. On 16 July 2020, Shea Ryan fell down a manhole on the site while playing with his friends, and despite rescue efforts from both emergency services and local residents, tragically succumbed to his injuries.

An investigation conducted by Police Scotland and the HSE revealed that inadequate measures were taken to prevent children from accessing the construction site. The HSE investigation further determined that the company had failed to conduct a proper assessment of the risk of unauthorised individuals gaining entry to the site. This failure resulted in the insufficient inspection and maintenance of perimeter fencing and the absence of other necessary security measures.

At Glasgow Sheriff Court court the company pleaded guilty to breaching section 3(1) of the Health and Safety at Work etc. Act 1974 and was subsequently fined £800,000 and ordered to pay a victim surcharge of £60,000.

This case is another reminder of the risks associated with insufficient protections put in place. In only August last year, another firm Howard Civil Engineering Ltd, was also fined £600,000 for a similar breach (see earlier update here).

Extended radiation exposure risk results in fine

An unannounced visit by the HSE led to a Cornwall-based company being fined for jeopardising the safety of its employees by exposing them to ionising radiation over a span of a decade. This was despite an external Radiation Protection Adviser (RPA) identifying deficiencies in the access controls and warning systems at Terrill Bros. (Founders) Limited's foundry in 2009. The RPA carried out a number of follow-up visits and issued reports and advice over the following 10 years, but the company failed to take remedial action.

The issues persisted until the inspection in February 2019.

Following an investigation, it was discovered that the door to an industrial radiography enclosure lacked adequate interlocks and a suitable trapped key system to prevent access. Additionally, there were no “pre-exposure warning systems or failsafe warning lights” in place. The company relied on administrative controls instead of implementing industry-standard engineering controls, thereby putting its employees at risk of exposure to high dose rates of ionising radiation, according to the HSE.

Terrill Bros. (Founders) Limited pleaded guilty to breaching regulation 9(1) of the Ionising Radiations Regulations 2017 and regulation 8(1) of the preceding Ionising Radiations Regulations 1999. It was fined £33,750 and ordered to pay costs of £47,601 at Truro Crown Court on 14 April 2023.

MAY

New Bill sets out significant compliance burden for those responsible for premises and events

The Terrorism (Protection of Premises) Bill, popularly known as Martyn's Law, was released in draft form on 2 May 2023, addressing the absence of mandatory requirements for premises and events open to the public to consider and implement proportionate protective security measures against terrorist threats. The strategic objectives of the Bill, which arose from campaigning by the mother of one of the victims of the Manchester Arena bombing in 2017, are to ensure public safety, minimise the impact of terrorist attacks, clarify responsibility for security, and improve consistency in security practices. A key change brought about if the Bill becomes law will be to subject relevant organisations to a new ‘Protect Duty’, rather than relying on them voluntarily taking steps to mitigate against terrorist risk.

Qualifying Public Premises and Events

The Bill defines qualifying public premises as those with a minimum public capacity of 100 people, public access and specified uses such as entertainment, retail, leisure, healthcare, and education. These premises are divided into two tiers: standard duty premises with a capacity between 100 and 799 people, and enhanced duty premises with a capacity of 800 or more. Qualifying public events with a capacity of 800 or more would be subject to similar requirements as enhanced duty premises.

Standard duty requirements would include conducting an annual terrorism evaluation and providing relevant workers with appropriate terrorism protection training. Enhanced duty premises and qualifying public events would be subject to additional obligations, including an enhanced terrorism risk assessment, regular training for relevant workers, implementation of reasonable security measures, appointment of a designated senior officer, and the development and maintenance of a security plan.

The Bill currently excludes premises with a capacity of fewer than 100 people, but encourages them to adopt voluntary measures to mitigate terrorism risks. Temporary events with fewer than 800 attendees are also exempted. Places of worship are considered standard duty premises, regardless of their capacity, unless an admission charge is imposed. Transport premises are already subject to existing transport security regulations and are not covered by the Bill.

The regime

Under the proposed regime, qualifying premises and events would be required to register with the relevant regulator, whose identity is yet to be determined. The Bill places key obligations on the "person responsible" for the premises, which can be an organisation or an individual. If there are multiple individuals responsible, specific legal duties to cooperate are outlined within the Bill. A designated senior officer must be appointed, and their details provided to the regulator. Enhanced duty premises and qualifying events are required to prepare and submit a security plan to the regulator, with specific details to be prescribed by regulations.

While the government anticipates widespread compliance with the legislation, the regulator would be equipped with enforcement tools, including investigatory powers and fixed penalties ranging from £10,000 for standard duty premises to the higher of £18 million or 5% of global revenue for enhanced duty premises and qualifying events. Under s.34 of the Bill, corporates and individuals are potentially liable for criminal offences if they, without reasonable excuse, contravene or fail to comply with a notice or knowingly/recklessly provide false or misleading information to the regular. Under s.35 of the Bill, senior personnel face possible individual liability if their organisation commits an offence with their consent, connivance, or neglect.  These offences vary a maximum sentence of two years’ imprisonment.

Training

Training will be a key part of compliance, including providing terrorism protection training and refresher courses for relevant workers. The term "relevant worker" encompasses both employees and non-employees, full-time and part-time workers, who have responsibilities that necessitate terrorism protection training. The Bill provides guidance on when and what training should be provided, with government bodies expected to offer training materials to educate personnel on terrorism threats and appropriate responses.

Organisations subject to the Bill may need to strengthen their in-house security capabilities or seek external consulting support to assess and mitigate risks effectively. Employees may experience heightened concerns regarding terrorism threats, and supporting their mental health may involve referring them to Employee Assistance lines or Occupational Health services. The security plan submitted to the regulator should include details of the terrorism protection training conducted, and maintaining evidence of compliance will be crucial.

Fingers amputated following health and safety failings

A devastating workplace event left a father from Devon with severe hand injuries which required the amputation of all of his fingers. Dean Delahaye, 35-years-old, was operating a metal rolling machine while employed at S F Limited, trading as SFL Flue and Chimney, on 5 September 2019, when the accident occurred and all his eight fingers were crushed. Following the incident, Mr Delahaye endured a 54-day hospital stay and underwent multiple surgeries. Despite more than three years passing since the incident, he is still awaiting prosthetics.

During the proceedings at Yeovil Magistrates’ Court, it was revealed that an HSE investigation found that SF Limited had failed to adequately assess risks and implement necessary controls when installing the roller equipment. Furthermore, the company missed an opportunity to reassess risks when significant changes were made to the machine's operation.

SF Limited pleaded guilty to breaching section 2(1) of The Health and Safety at Work etc Act 1974. It was fined £26,000 and ordered to pay costs of £12,000.

HGV incident leads to £1.9m fine

The death of a 60-year-old man after being hit by an HGV in Birmingham has led to £2.2m in fines for two transport companies. Neil Roberts, a depot manager at Turners (Soham) Limited, died after being struck by a reversing HGV on 30 August 2019, when the lorry was leaving a parking space in a transport yard belonging to The Haulage Group Ltd. An investigation conducted by the HSE revealed that the companies had failed to adequately manage the risks associated with workplace transport.

Turners (Soham) Limited, based in Newmarket, Suffolk, pleaded guilty to violating sections 2(1) and 3(1) of the Health and Safety at Work etc Act 1974. It was fined £1.9 million and ordered to pay costs of £7,300. The Haulage Group Ltd of Sutton Coldfield, West Midlands, pleaded guilty to breaching the same sections of the Act and was fined £300,000, with costs of £7,300.

Prosecution brought against Cambridgeshire County Council following busway deaths

Cambridgeshire County Council is set to be prosecuted by the HSE after three individuals lost their lives in separate incidents and another individual suffered life-altering injuries in a collision on the Cambridgeshire Guided Busway. The HSE conducted an investigation into the incidents and has stated that it will be charging the council under section 3(1) of the Health and Safety at Work etc. Act 1974.

On 17 November 2015, 81-year-old Jennifer Taylor died when she was struck by a bus while crossing the busway on foot at Fen Drayton. Another fatality occurred on 13 September 2018, when Steve Moir, a 50-year-old cyclist, collided with a bus on the busway between Cambridge railway station and Long Road. Kathleen Pitts, 52 years old, also on foot, suffered the same fate on 26 October 2021. Finally, on 9 November 2021, a teenage cyclist sustained serious injuries following a collision with a bus on the guided section of the busway parallel to Kings Hedges Road.

JUNE

Death of custody officer results in £2.25m fine

Serco has been fined £2.25 million following the death of a custody officer which has been linked to health and safety failings. In 2015 Ms Barwell, a 54-year-old grandmother, was kicked twice during the restraint of a prisoner at Blackfriars Crown Court, resulting in fatal brain injuries. An HSE investigation revealed several deficiencies in Serco's practices. According to the HSE, the company failed to adequately analyse risk intelligence on prisoners, communicate risks and safety precautions to staff, implement sufficient procedures and follow them, provide accessible protective equipment, and offer necessary training.

The investigation also found that over a three-year period, Serco had consistently neglected to ensure adequate staffing levels, manage working hours, assess risks of violence and aggression, communicate safety information and maintain appropriate procedures. Time pressures, understaffing, and prioritising business concerns led to routine violations of procedures by Serco staff, which went unaddressed despite being brought to the attention of multiple entities, including HM Prisons Inspectorate, the Ministry of Justice, HSE inspectors and Serco's own staff.

Serco pleaded guilty to s.2(1) of the Health and Safety at Work Act 1974 on 25 April 2022. The following day the company was sentenced to a fine of £2.25 million and ordered to pay costs of £433,596.07.

£15,000 fine following attacks by cows

Sir Charles Hobhouse, a landowner from Wiltshire, received a fine of £15,000 after pleading guilty to health and safety failings linked to attacks by cattle on members of the public, who were walking on footpaths crossing his Monkton Farleigh Estate in Bradford-on-Avon. Two separate incidents occurred in the summer of 2021.

The first incident occurred on 5 June 2021, when three walkers encountered an electric fence blocking the public right of way with no alternative route provided. They managed to navigate around the fence but were subsequently attacked by several cows. One of the party sustained severe injuries, including a fractured shoulder and broken ribs, after the cows repeatedly headbutted and stamped on her.

The HSE found that Sir Charles had failed to control the risks to the public, particularly in regard to the lack of suitable segregation between cows with calves and the public footpath.

Despite receiving instructions to implement preventive measures, a second attack occurred on 19 August 2021. James Johnson, a local builder out for an early morning run, was attacked by cattle, sustaining significant injuries including concussion, dislocated shoulders, broken ribs and broken vertebrae.

At Taunton Crown Court, Sir Charles pleaded guilty to two counts of breaching section 3(2) of the Health and Safety at Work Act 1974. He was fined £15,000 and ordered to pay £8,000 in costs.

Waste collection failures lead to fine for Chelmsford City Council

Health and safety failures in waste collection have led to an £80,000 fine for Chelmsford City Council, following the death of a father-of-three who was struck by a reversing bin lorry. On 8 December 2017 Steve Bishop, 37, was hit by the rear and underside of the lorry while it was reversing down Osea Way in Chelmsford. Steve was employed as a loader operative for Chelmsford City Council at the time of the incident.

While it was acknowledged that the council's failings did not directly cause Mr. Bishop's death, the incident sparked an HSE investigation. This revealed that the Council had not effectively managed the risks associated with moving refuse vehicles, had failed to provide training and instruction to agency workers on safe reversing procedures and the use of hand signals, and did not adequately monitor employees' working practices.

Chelmsford City Council pleaded guilty to breaching sections 2(1) and 3(1) of the Health and Safety at Work Act 1974. On 16 June 2023, the Council was fined £80,000 and ordered to pay £61,065 in costs.

Fine for Legionnaires’ disease outbreak at plastics company

Riaar Plastics Limited of West Bromwich has been fined for health and safety offences after the company endangered workers and the public by exposing them to potentially deadly bacteria. The company was subject to an investigation led by the HSE after several members of the public contracted Legionnaires' disease in September 2020.

Legionnaires' disease is a lung infection that can be contracted from inhaling droplets of water from items such as air conditioning or hot tubs, which contain Legionella bacteria. It primarily affects the lungs and symptoms include coughing, shortness of breath, chest pain, and difficulty breathing.

Five people were infected during the outbreak, with one person requiring intensive care treatment and ventilation due to the severity of the infection. The company pleaded guilty to failing to adequately manage the risk of Legionella. The HSE discovered that the water-cooling towers and pipes at the company's site in Black Lake, West Bromwich, were in an extremely poor condition which facilitated the growth of Legionella bacteria.

Riaar Plastics Limited pleaded guilty to breaching section 2(1) and 3(1) of the Health and Safety at Work Act 1974. On 2 June 2023 the company was sentenced by Birmingham Magistrates’ Court to a fine of £50,000 and ordered to pay £11,000 in costs.

Further Information

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

About the Authors

Sophie Wood is a Legal Director 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.

Úna Campbell is a legal apprentice in the Criminal Litigation team at Kingsley Napley. Úna was the inaugural winner of The Legal Apprentice in 2019, a competition run by Kingsley Napley in association with The Times in which 902 teams from 308 schools and colleges across the UK competed against each other through a series of heats testing pupils’ drafting, negotiation and interpersonal skills.