August 2015 Newsletter
Legislation Update for Sentencing and Levels / Guidelines
By SMSE Consultant Andy Langham
A fairly common complaint of businesses that receive substantial fines during Health and Safety law cases is a perceived lack of consistency in sentencing.
Almost Identical cases/accidents sentenced on the same day in different courts can sometimes result in wildly differing fines – not in terms of pounds and pence, but in terms of the number of zeroes.
As of late summer/autumn 2015 sentencing guidelines for corporate health and safety offences are about to get a lot more complicated but the message is clear: risk managers need to be prepared for significant increases in fines….
Legislation came into effect on 12 March 2015 providing for all maximum fines in the Magistrates’ Court of £5,000 or more to become unlimited in England and Wales.
Previously, fines payable on conviction in the Magistrates’ Court were capped, often at a statutory maximum of £5,000 on the Magistrates’ Court ‘standard scale’, or a higher amount, if so provided for in the applicable legislation. For example, health and safety offences under the Health and Safety at Work Act 1974 were capped at £20,000, while the cap for environmental offences varied between £5,000 and £50,000 depending upon the nature of the offence. Henceforth, there will be no cap on the level of fines which can be imposed by Magistrates for these offences.
The new legislation will apply both to summary offences (those which can only be tried in the Magistrates’ Court) and to either way offences (triable by Magistrates or in the Crown Court) that are tried summarily. It will mean that Magistrates’ Courts will no longer have to commit a case to the Crown Court for sentencing simply because they have insufficient sentencing powers. Fines of below £5,000 will continue to be capped (although the amount of the cap may increase over time).
The changes only apply to fines for criminal offences in the Magistrates’ Court. They do not apply to Crown Court fines (which will remain unlimited, unless expressly capped in the applicable legislation) or to civil fines imposed by regulators. The changes do not have retrospective effect and only apply to offences committed on or after 12 March 2015.
The rationale for the legislation is to encourage the greater use of fines in the Magistrates’ Courts and, in particular, to enable Magistrates’ Courts to impose more proportionate fines on wealthy and corporate offenders.
Later this year new sentencing guidelines for health and safety offences, corporate manslaughter and food safety and hygiene offences will come into effect (currently there are only sentencing guidelines for corporate manslaughter and health and safety offences causing death). It is anticipated that the guidelines will encourage magistrates to make use of the higher level of fines available to them (as demonstrated in the Environmental Sentencing Guidelines which came into effect July 2014), whereby magistrates are required to focus on annual turnover of an organisation in order to reach a starting point for the fine amount.
For the meantime, magistrates will have the ability to issue unlimited fines without any guidance in respect of health and safety offences, where no death has resulted. It is anticipated that the greater sentencing powers of the magistrates, combined with the new (anticipated) guidelines will lead to a much tougher stance from the courts, with much larger fines being handed down to organisations as a result.
Further details at:-
School farm safety message welcomed by IOSH
IOSH has welcomed efforts to educate Irish schoolchildren about farm safety before the start of the school summer holidays.
A total of 23 children have died in farm accidents in Ireland over the last ten years with the summer holidays often proving to be a high-risk time.
The Health and Safety Authority (HSA) recently wrote to all primary school principals asking them to discuss farm safety with their pupils ahead of the school summer holidays.
The move has been backed by members of the Rural Industries Section of IOSH’s Ireland Branch as a way of empowering children to think about farm safety.
Aine English, chair of IOSH Ireland Branch’s Rural Industries Section, said: “The initiative enacted by the HSA is a very sustainable one and will support the continuous efforts to reduce farm fatalities.
“The targeting of schools will ensure that a cultural change is driven not only by professionals, but by family members too. Safety should be a kitchen table topic daily and with this initiative we are empowering our younger generation to think safety first.
“The Rural Industries Section support and commend the HSA and the educational systems for this initiative.”
Council ordered to pay £33,000 after boy, 14, loses fingertip
North Yorkshire County Council has been fined £5,000 and ordered to pay more than £28,000 costs after a schoolboy lost the tip of his right index finger after a lathe accident in class.
The 14-year-old pupil was putting the finishing touches to a metal torch he was making in a design and technology lesson at King James’s School in Knaresborough when he was told to use a polishing cloth on it while the lathe was turning.
Lisa Roberts QC prosecuting told Leeds Crown Court on Monday that the cloth became entangled and dragged his hand into the rotating lathe and the tip of his finger was almost severed before he could switch it off.
He was taken to hospital in Harrogate and efforts were made to re-attach it but they were not successful and the tip was subsequently amputated.
Miss Roberts said there was a notice attached to the lathe warning against the use of loose clothing, neckties and jewellery and said it was the Health and Safety Executive’s case the risk of using a polishing cloth should have been self-evident.
She said the school had not identified the risk and over a period of time the practice of using the cloth had become accepted when it was “regrettably inherently unsafe.”
The boy, although continuing with his schooling and sport, was conscious of his loss.
Robert Smith QC representing the county council said they had an excellent safety record covering the 120,000 children in the North Yorkshire catchment area and the health and safety breach was “out of character and exceptional.”
Equally the school was highly respected and very successful and the isolated incident was entirely contrary to the schools good safety record.
He said there had been no deliberate disregard by staff who had no recollection of health and safety guidelines on lathes being drawn to their attention. “The risk was not specifically addressed in assessments at the school. This was an exceptional incident and they failed to apply their minds to it.”
Since the accident on November 19, 2013 the school had done everything it could to reduce the risk of anything similar involving the use of such equipment, paying out of its own budget for health and safety consultants to do a two day audit at the school.
Notices had also been sent out at the time by the council to all head teachers and design and technology departments to stop the practice and use other safe methods.
The council admitted as an employer failing to ensure the reasonable protection of persons not in their employment and in addition to the fine was ordered to pay £28,287.85 prosecution costs.
Judge James Spencer QC said the consequences of the accident had been unpleasant and painful at the time for the boy, who had the continuing embarrassment of how his finger was left but there had been no prior warning it might happen.
“With hindsight this looks an obvious error at the time it wasn’t a particular risk that had been noticed.”
Civil action is ongoing.
Supermarket convicted after woman loses leg
A supermarket has been convicted of breaching health and safety law after an incident in January 2013 in which a woman had to have her leg amputated after she was hit by a lorry in the store’s delivery yard.
The woman, was walking across the car park by the main entrance to Jempson’s store in Main Street, Peasmarsh, near Rye, when she was struck by an 18-tonne delivery lorry.
The vehicle was in the process of trying to reverse into the store’s delivery yard, executing a manoeuvre which was allowed to occur regularly in front of the store entrance.
She was airlifted to hospital, but lost her left leg and suffered severe and permanent damage to her other leg and arm after being dragged under the front right wheel of the lorry.
Jempson’s Ltd denied breaching section 3 of the Health and Safety at Work Act, but was convicted by a jury following a prosecution by Rother District Council and a two-week trial at Lewes Crown Court.
Jurors heard evidence from logistics firms who said the supermarket’s delivery yard was cluttered and the access road to it narrowed by cars parked on double yellow lines, meaning lorries had to reverse into the yard.
The court heard that Jempson’s, part of a group of companies which owns eight shops and cafes across the Rother area, knew about the risk posed by lorries reversing in the busy pedestrian area by the entrance to the Peasmarsh store, but failed to implement reasonably practicable measures to reduce the risk of an accident.
A councillor for, the Rother District Council cabinet member for environment, transport and public realm, said:
“This was a truly horrific accident which has had life-changing implications for the woman.
“It’s the clear responsibility of companies and organisations which deal with the public to do everything they reasonably can to minimise risks to their customers.
“The jury found that this company did not do that and agreed with our view that this was a case where more could and should have been done to reduce the risk of an accident like this occurring.
“This conviction should send out a clear message of the importance of taking prompt and effective action when a risk to health and safety is identified.”
Inquest jury rules cow crush death as accidental
The death of a man who was trampled by a herd of cows in a field was an accident, an inquest jury has found. The incident followed three previous attacks in the same and neighbouring fields, after which HSE explained to the farmer his duty to “reduce the risk as far as one possibly can”.
The jury heard how former Edinburgh University lecturer and his brother were knocked to the ground by the herd as they crossed a field near Bradford-on-Avon in Wiltshire.
The 66-year-old and his brother, had been walking their dogs on leads on a public footpath through Elbow Field, in Turleigh, when they were attacked. A witness described the cows “going mad” as they surrounded the men. The younger brother died at the scene.
The man’s death followed a previous attack in Elbow Field, in 2008 and two in a neighbouring field in 2011. Following these incidents HSE had visited the farmer, to explain his duty to reduce risk.
At the inquest at Salisbury Coroner’s Court it the surviving brother said how the herd knocked them down repeatedly and seemed to “deliberately trample” on them “as if it was something they really wanted to do”.
The inquest heard that of the 57 animals on the farm at the time of the man’s death, were continental breeds or cross-breeds.
Thirty-one had been there during three previous attacks, but there was no evidence about which cows in particular were involved.
Company ordered to pay over £847k following second fatality at site
A Staffordshire animal rendering and food waste recycling company has been fined £660,000 after a self-employed contractor died after being scalded as he tried to fix an industrial cooker. In 2004 another worker died at the same site when he entered a confined space without proper precautions being taken.
In the more recent incident in November 2011 the contractor, was carrying out repairs inside the cooker at John Pointon & Sons Ltd.
While he was inside, steam from elsewhere in the system fed into the area where he was working. He was badly scalded and died in hospital the following day from his injuries.
An investigation by HSE found the contractor was allowed to enter the cooker without the proper precautions being taken. The company had not properly considered the risks of entering the cooker, had failed to put in place a safe system of work, and did not competently manage the work as it was taking place.
On Monday 29 June 2015, John Pointon & Sons Ltd, of Bones Lane, Cheddleton, Leek, was fined £660,000 and ordered to pay a further £187,632 in costs at Stafford Crown Court after pleading guilty to breaching section 3(1) of the Health and Safety at Work etc. Act 1974.
After sentencing the HSE inspector said: “The cookers in operation at the company form the core part of the business. Steam and hot vapours getting into the cookers from other connected pieces of equipment is foreseeable, and precautions should have been taken to ensure all avenues which had the potential to allow steam to be fed back into the cooker had been suitably isolated.
“John Pointon and Sons Ltd failed to do this and it cost the contractor his life.
“Work in confined spaces can be extremely dangerous, which John Pointon & Sons Ltd were fully aware of, having already had a fatality at the site. Companies must identify what measures should be taken to ensure the safety of their workforce. I would urge any company that carries out work in confined spaces to double check their procedures.”
Bakery fined after worker loses tip of finger
A Newcastle bakery has been fined after an incident with an unguarded machine caused an employee to lose the tip of his middle finger.
Newcastle magistrates heard how an employee was operating a pie making machine when his right hand was carried around with the motion of the machine. The blocker head came down and removed the tip of his middle finger.
The incident occurred at their business premises at Airport Industrial Park, Kingston Park, Newcastle upon Tyne.
The court heard how the machine was not guarded to the appropriate standard and should have been fitted with a safety frame or false table to prevent access to the blocking and trimming heads.
Minhoco 21 Limited (trading as Geordie Bakers) pleaded guilty of breaching the Provision and Use of Work Equipment Regulations 1998, regulation 11(1) at Newcastle Magistrates’ Court and were fined £2,000 with costs of £1,086, and a victim surcharge of £120.
The HSE inspector said “The guarding standards on these machines are well established, the use of a safety frame or false table to prevent access to the blocking and trimming heads is essential. Not only did the injured person sustain a partial amputation of the fingertip but it could have been a much more serious injury, including amputation of multiple fingers.”
£22,000 fine for safety failings that led to major gas leak
A Lincolnshire based farm, run by W. & A.C. Rose (Farms) Ltd in Fillingham has been fined for serious safety failings that led to a gas pipe being fractured, putting lives at risk. The farm failed to inform, instruct or warn employees of the presence or location of the gas pipeline even though it had been struck before in 1997.
A farm worker was operating a tractor and subsoiler in a field known as Deer Park Hollow when he struck and fractured a gas pipeline causing a major gas leak.
Lincoln Magistrates’ Court heard how the associated fire and explosion risk caused by the leak meant that the road around the field was closed and an evacuation zone was set up, resulting in nearby residents being instructed to leave their homes for two nights until the pipe was repaired.
The pipeline was known to have shallow cover as it had been previously struck during subsoiling operations in the same field in 1997.
The court heard how the farm had failed to inform, instruct or warn employees of the presence or location of the gas pipeline or that it was only a few inches underground and how employees were not provided with a farm map or marked plan showing the route of the pipeline
W.& A.C. Rose Ltd pleaded guilty to breaching section 2(1) of the Health and Safety at Work etc. Act 1974 and regulation 15 of the Pipelines Safety Regulations 1996. The company was fined £22,000 with £2,207.40 costs and a £200 victim surcharge.
TheHSE inspector said: “This incident could easily have been avoided if sufficient measures had been taken to tell workers about the location and shallow nature of the gas pipeline.
“The pipeline strike and the resulting uncontrolled release of gas caused a significant risk of fire or an explosion which could have resulted in the loss of life. The company failed to take appropriate action to prevent a further strike, despite being aware of the reduced cover over the pipeline.”
Man breaks legs at dance academy in lift shaft fall
The Royal Academy of Dramatic Art (RADA) has been sentenced after a member of the public fell into a vacant lift shaft.
A male, fell into a vacant lift shaft after leaning on a set of double doors at street level.
The doors were operated and controlled by RADA at its Central London campus. The doors were secured with a lock and key. The man leant against one of the doors and it opened inwards causing him to fall backwards through the double doors and into the lift shaft. He fell between five and six metres to the bottom of the lift shaft, breaking both legs.
His injuries have prevented him from attending university and working as a fashion model.
An investigation by the Health and Safety Executive (HSE) found that RADA had failed to carry out a basic risk assessment on a vacant lift shaft at its site with access from the street.
RADA, of Gower Street, London, pleaded guilty at Westminster Magistrates’ Court and was fined £12,000 and ordered to pay £1,266 in costs for breaching Section 3(1) of the Health and Safety at Work etc. Act 1974.
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