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following the prosecution: a fine which
was later upheld by the Court of Appeal.
That first prosecution was followed by
Lion Steel Limited being fined £480,000 in
July 2012. And in May 2012, JMW Farm
Limited was fined £187,500 after another
successful prosecution under the Act.
This year so far, there have been
announcements of four more companies
who face prosecution under the Act.
In most cases so far, though, there has
been a common theme: the person who
was killed was usually an employee and
was involved in an activity which could
be considered 'inherently dangerous'.
In Cotswold, a sub-standard trench
collapsed. In Lion Steel, an employee
fell through a roof. Of the new cases, PS
& JE Ward Limited involves the death
of an employee by electric shock. MNS
Mining Limited involves the death of four
miners and JMW Farm Limited concerns
the death off an employee at a pig farm.
Another case involves Mobile Sweepers
(Reading) Limited, where a man died from
crush injuries after working on a repair
underneath a road-sweeping truck.
However, potentially one of the most
interesting cases is the one planned against
Princes’ Sporting Club Limited. In this
case, an 11-year-old girl died after falling
off a banana boat and being hit by the
speedboat towing it. This did not involve
an ‘inherently dangerous’ activity and
revolves around a member of the public,
not an employee.
The case is, therefore, likely to be
linked closer to the traditional common
law of negligence, as opposed to health
and safety at work. In order to establish
negligence, firstly, there must be a duty of
care owed to the person who is injured or
killed. Secondly, there must be a breach of
that duty. Thirdly, there must be resultant
damage, which, under the Corporate
Manslaughter and Corporate Homicide
Act, must involve a death.
Rail industry in a unique position
So what are the implications of the Act
for the rail and other industries Firstly,
the rail industry is in a fairly unique
position. In that respect, the Act provides
guidance on whether or not a duty of care
will be owed to a particular individual.
Examples of when a duty of care will exist
are included in the Explanatory Notes to
the Act. They include 'duties owed by a
transport provider to its passengers'.
Secondly, the size of the fines is
significant. For example, Cotswold
Geotechnical only employed eight people
at the time of the offence. However,
a substantial fine was imposed in line
with the severity of the offence. A larger
organisation could face a much bigger fine.
Thirdly, prosecution involving a
non-employee could have applied in the
instance of the rail guard mentioned at the
start of the article. There are significant
implications for the industry when dealing
with passengers and members of the public
generally.
A fourth and final consideration is that
the Act could be used to protect employees
in situations where the activities are not
'inherently dangerous'. For example, many
employees are required to drive long
distances for work. Could we perhaps see
the first prosecution under the Act, where
an employee is either killed or causes the
death of the third party, while driving on
business
The Act is still very much a work in
progress and it is difficult to state, with
certainty, how it may apply in the future.
One thing is certain, however. Ultimately
all organisations need to remain vigilant to
health and safety issues, adapt according to
the situation and then take all reasonable
steps to protect employees and third parties
from injury or death.
Claudia Gerrard is a legal consultant at Excello Law.
You can call her on 07447 985647 or email her at
cgerrard@excellolaw.co.uk
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