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H&S Newsletter April 2015
H&S Newsletter
April 2015
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Contents
News
FAI Legislation Reform Update (Scotland): Analysis of Consultation Responses
Construction (Design and Management) Regulations 2015
Mines Regulations 2014
Care Quality Commission
Cases
Company fined after worker killed in offshore incident
Loft company in court for scaffold collapse failings
Liverpool NHS Trust in court over deadly asbestos fibres
Construction firms prosecuted after worker crushed by falling conveyor
Engineering firm in court after worker’s hand pulled into machinery
Skipper jailed for failings that lead to death of diver
Scottish Fire and Rescue Services fined over health and safety breaches
Focus on: The Corporate Manslaughter and Corporate Homicide Act 2007 and
Associated Case Law
Corporate Manslaughter Update: A. Diamond and Son (Timber) Ltd
Corporate Manslaughter Update: Peter Mawson Ltd
Corporate Manslaughter Update: Pyranha Mouldings
Corporate Manslaughter Update: Summary
Oil and Gas News
Civil Aviation Authority (CAA) report on progress to improve safety of offshore helicopter
operations
Control of Major Accident Hazards Regulations 2015
Health and Safety – what do we do
CMS Cameron McKenna LLP is recognised as a leading firm in the
area of Health and Safety. We provide specialist advice on regulatory
compliance, prosecutions, investigations and corporate governance.
Emergency Response Service
The steps a company takes immediately following an incident can be pivotal and can significantly
increase or decrease the likelihood of a subsequent conviction. Health and Safety Inspectors have
substantial powers to enter and examine premises, remove articles and demand documents
necessary for them to carry out their investigations. Immediate, on the spot advice and support
can therefore prove to be invaluable in the event of an emergency.
Our dedicated team is on call 24 hours a day to provide assistance and respond to incidents on
site. Our lawyers are qualified to practice in England, Wales and Scotland; but we also regularly
advise clients in relation to health and safety matters in other jurisdictions and can draw on the
expertise of our CMS network of European offices.
We are available for health & safety emergencies and advice; along with any other related urgent
matters. In the event of an emergency the team will ensure a swift and efficient response to
client queries, irrespective of the time of day or day of the week.
If your company has a health and safety emergency, you can contact us on:
Emergency Response Hotline: 0333 20 21 010 (available 24 hours a day, 7 days a week)
London: 020 7367 3000
Aberdeen: 01224 622 002
Out of hours: 07811 362 201 (Ask for Jan Burgess)
Kelvin TOP-SET
A number of our team are qualified as approved Senior Investigators under the Kelvin TOP-SET
incident investigation system. They are also able to assist in conducting an incident investigation
itself, in order to ascertain the ‘root cause’ of an incident with a view to future preventative
measures and improvements to health, safety and welfare.
Offshore Environmental Issues
Our team has considerable experience in advising in relation to offshore oil & gas issues – ranging
from defending prosecutions by DECC to appealing enforcement notices – along with general
advice in drafting of OPEPs and complying with the extensive range of offshore environmental
regulation, including those introduced by the European Union Offshore Safety Directive (“OSD”).
Changes introduced by the OSD are extensive and have significant impact on oil & gas operators
and contractors engaged in offshore activities. We are able to assist in any transitional measures
that may be required.
Foreword
News
FAI Legislation Reform Update (Scotland): Analysis of Consultation Responses
We have previously reported on The Scottish Government’s consultation on amending the
legislation that governs Fatal Accident Inquiries (FAIs) and the subsequent legislation which will
largely implement the recommendations made by Lord Cullen in his 2009 Review of Fatal
Accident Inquiry Legislation. The consultation ran from the 1st July to the 9th September 2014,
with a total of 58 responses received. Following the consultation, The Scottish Government have
published a report analysing the responses received.
The report gives an overview of the current legislation, highlighting that an FAI is mandatory for
deaths as a result of an accident in the course of employment. The first question posed to the
respondents was whether this mandatory position was sufficient, and the majority agreed that it
was. Many respondents agreed with the assertion that requiring an FAI for all work-related
deaths would lead to a greater number of FAIs being held. Some went on to note that this would
lead to greater utilisation of public resources and could actually help exacerbate the very delays
that other proposals contained in the consultation seek to address. A small number of
respondents also suggested that little if anything new would be learnt from conducting FAIs for
all work-related deaths and that there would be limited value in holding repeated FAIs covering
the same sets of circumstances. An example given was the danger of asbestos exposure and
related injuries and it was suggested that these dangers are already well known and extensively
documented. Regardless of opinion on this point, a number of respondents submitted that the
proposals would have minimal or no impact on themselves or the area in which they worked.
As noted in the consultation paper, under current legislation, there is no provision to hold an FAI
into the death of a person domiciled in Scotland who dies abroad. Lord Cullen expressed the
view that although it would be unjustifiable to hold mandatory FAIs in the deaths of all Scots who
die or are killed abroad, an FAI should be held at the discretion of the Lord Advocate, where the
body has been repatriated to Scotland. The Scottish Government accepted this recommendation
and the question was posed to the respondents whether there should be such a discretion. The
overwhelming majority agreed. A small number did raise additional issues which would need to
be considered in due course, including introducing primary legislation to define the circumstances
in which such a power could or should be exercised and information to be published regarding
the range and capacity of the inquiry. The majority of respondents also agreed with the criteria
put forward in considering whether to hold an FAI: whether there had been circumstances which
called for an investigation; whether there had been a satisfactory investigation (in the country
where the death took place); and, whether there was a prospect of an FAI yielding significant
findings.
A further issue put to consultation by The Scottish Government, and which has been criticised in
recent years, was the delays in holding FAIs, with the main concern being the time lapse between
a death and the resulting FAI taking place. In accordance with the views submitted by Lord
Cullen, the respondents were asked whether they agreed with the position that it was plainly not
practical or realistic to make it mandatory that an FAI must open within a certain period of the
date of the death of the deceased. A large majority of the respondents agreed with this view.
However many respondents, both who agreed and disagreed, made further comment noting
their concerns about unacceptable delays. In particular, one respondent was concerned that the
failure to hold an FAI in a time bound manner would allow the continuation of potentially fatal
working conditions and practices to continue undiagnosed, therefore increasing the possibility of
a repeated fatal accident occurrence. Many of those who did not support mandatory timescales
still offered suggestions for improving the current approach. These included the introduction of
primary legislation setting out that the Crown will use its best endeavours to bring the matters to
court at the earliest opportunity. Also, in non-complex cases, there was a suggestion that it
would be realistic to set notional timescales for opening an FAI. In response to a separate
proposed question, all of the respondents agreed that preliminary hearings should be held to
speed up the process of FAIs.
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There were also a number of responses received on the consultation questions regarding Fatal
Accident Inquiry accommodation and legal aid for bereaved relatives. These responses are
detailed further in the report of The Scottish Government. This analysis of responses will inform
The Scottish Government on the desire and preferences for reform and will be used as part of
their decision making process in finalising the reformed legislation.
Construction (Design and Management) Regulations 2015
We reported on the HSE consultation on changes to the CDM 2007 Regulations in our May 2014
Health and Safety newsletter. Following that consultation, the 2007 Regulations are to be
revoked and replaced with CDM 2015.
The biggest practical change that the Regulations are aiming to achieve is in relation to duties of
the client. The client has greater responsibility, recognising the fact that they head up the supply
chain and are therefore best placed to set standards throughout a project. There is now an
ongoing obligation on the client to make suitable arrangements for managing a project and,
particularly, to ensure that the construction work can be carried out, so far as reasonably
practicable, without risks to the health and safety of any person affected by the project. The
obligation includes the following responsibilities:
— Appointing a principal designer and principal contractor;
— Notification to the HSE of particular projects;
— Provision of pre-construction information to every contractor and designer;
— Ensuring preparation of a construction phase plan.
Clients who are regular developers will be more able to manage these but it is a greater burden
for those new or inexperienced clients.
A further change is the abolition of the role of the CDM co-ordinator. The responsibility for
coordination of the pre-construction phase will now rest with the principal designer, an existing
member of the design team. The crux of the role is to make sure all designers’ design comes
together in a way that delivers a project that can be built and used safely. He is the key conduit
between the designers and contractors and must coordinate the handover of a safely-designed
project to the principal contractor in a way that the principal contractor can then safely build the
project. This leads into the duty to create, maintain and often complete the health and safety file.
The general view at the moment is that the architect is most likely to take on this role from the
concept design stage until completion of the pre-construction phase, following which, he will
pass the health and safety file to the contractor.
In terms of those projects which are already underway and still ongoing at the time of the
proposed commencement date, their obligation to comply with the new Regulations depends on
the completion date of the project. Should it be scheduled to complete by 6 October 2015, then
the project may continue in accordance with the old Regulations, however, if the project will
remain ongoing by 6 October 2015, it will need to change to comply with CDM 2015 as of that
date.
Mines Regulations 2014
The unique nature of underground mining and the related hazards has resulted in a large volume
of mining health and safety legislation which has been introduced over time, primarily in response
to incidents and other concerns. They date from 1954 to 2007, and taken together are
voluminous, complicated and prescriptive. The Mines Regulations 2014 will come into effect on 6
April 2015, and will replace all current health and safety mining law.
The primary objective of the new legislation is to consolidate mining legislation into a single set of
modern, goal-setting regulations. The intended effect is to retain necessary protection for mine
workers in a form which is simpler and clearer for businesses to comply with, places primary
responsibility for managing health and safety on mine operators and reflects contemporary
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approaches to major hazard management and control. Following the introduction of much of the
current mining law, legislation of general health and safety application covering a range of topics
has subsequently come into force. The Regulations will remove the duplication where significant
parts of the existing mines legislation is no longer necessary.
The Regulations clearly place the duties to ensure adequate health and safety compliance on the
mine operator, rather than the mine owner. He is obliged to take the necessary measures to
ensure that both the mine and its equipment are designed, operated and maintained in a way
which does not endanger the health and safety of workers. Regulation 7 is the underpinning
requirement of the Regulations and is intended to secure a co-ordinated, proactive approach to
the management of health and safety, which ensures that risks are properly controlled.
The focus of the Regulations is on the control of major hazards in mines. The reduced prescription
intends to encourage the mine operator to move away from using compliance with detailed
requirements as a measure of their health and safety performance, towards an approach based
on proactive identification, assessment and control of risk. The mine operator will need to be able
to demonstrate for themselves, the workers and the regulator that risks are as low as is
reasonably practicable.
As was intended, the new Regulations change very little of the existing mining health and safety
legislation. Rather, they are intended to consolidate and simplify, and dutyholders should now be
clearer on their duties and obligations.
Care Quality Commission
The Health and Safety Commission (HSE) has issued a consultation on a new liaison agreement
between the Care Quality Commission (CQC), HSE and Local Authorities. The new Agreement
has been developed in response to criticism of the “regulatory gap” under current arrangements,
namely the restrictiveness of HSE’s health and social care investigation policy and CQC lacking the
necessary powers to act to secure justice. The purpose, as expressly set out in the draft
Agreement, is to help ensure that there is effective, co-ordinated and comprehensive regulation
of health and safety for patients, service users, workers and members of the public.
The proposal is that, from April 2015, the CQC will become responsible for taking regulatory
action following health and safety incidents involving service users who use health and adult
social care services. This responsibility will be transferred from the HSE, which together with Local
Authorities currently deal with these health and safety prosecutions. This means that in cases
where patients and service users have been seriously harmed or die due to unsafe care, the
responsibility will now fall on the CQC to take action under the fundamental standards. Both HSE
and Local Authorities will continue to deal with health and safety prosecutions in cases involving
employees, visitors, contractors and people not registered with the CQC. Where there is any
uncertainty about jurisdiction, the relevant bodies will determine who will have primacy for any
regulatory action and whether joint or parallel regulatory action will be conducted.
Up until now, CQC have been slow to prosecute, perhaps in part because they might struggle to
prove cases to the necessary criminal standard but also perhaps because their powers to do so
are currently more limited than they will be in the future. It is certainly possible that the changes
envisaged by the new Liaison Agreement will result in a rise in the number of prosecutions
against providers.
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Cases
Company fined after worker killed in offshore incident
An offshore services company has been fined for serious safety failings following an incident in
which a worker died after plunging 23 metres from a platform into the sea.
Lee Bertram, then 37, from Newcastle, was working for Bilfinger Salamis UK Limited on a
platform in the North Sea when the incident happened on 16 June 2011. Mr Bertram was using
ropes to access below the deck and carry out a sweep for dropped objects that could fall into the
water, potentially injuring divers working in the sea below.
Aberdeen Sheriff Court heard that Mr Bertram had successfully abseiled around an area about
eight square feet taking photographs and removing debris. He then started back up the ropes
and was a metre from the top when he noticed a beam clamp that needed to be removed, which
he did with a hammer. As Mr Bertram started his ascent to the deck he had to stop, suspended,
just below the hatch in order to open the rope protector so he could move his ‘jammer’ up the
working rope and past the edge allowing him to move through the hatch. However, as he pushed
down on his foot loop to come up through the hatch both the main and the safety rope sheared
against the sharp edge and he fell to the sea – a distance of 23 metres – striking steelwork as he
fell.
An investigation by the Health and Safety Executive (HSE) found that the job Mr Bertram was
undertaking had not been properly planned by his employer and was contrary both to industry
(IRATA) guidelines and the company’s own procedures. Inspectors concluded that had the work
been properly planned the edge of the hatch would have been identified as being sharp and the
risk of rigged ropes coming into contact with it could have been prevented. Instead the ropes
were rigged against the edge leading them to be severed.
Bilfinger Salamis UK Limited of Lowestoft, Suffolk, was fined £100,000 after pleading guilty to
breaching Regulation 4 of the Work at Height Regulations 2005.
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Loft company in court for scaffold collapse failings
A loft conversion company has been fined for safety failings after an employee was injured in a
dramatic scaffold collapse outside a property in North London.
The structure buckled, tipped towards the home it was being used to serve and bent in on itself
– effectively creating a chute that sent the worker and an array of materials, including plaster
boards, wood and lead rolls, crashing six metres to the ground below. Thomas Pastura, 24, broke
two ribs in the fall at the property in Hornsey, on 4 October 2013.
His employer, Acton-based Lofty Creations UK Ltd, was prosecuted on 11 March 2015 by the
Health and Safety Executive (HSE) after an investigation identified clear failings with the design of
the scaffold.
Westminster Magistrates’ Court heard it was being used to provide access to the roof of a
traditional two-storey property where a loft conversion was underway, and had been built to
reach across a ground level bay window. HSE established that the weight of the materials on the
structure at the time of collapse was between 3-3.5 tonnes – the equivalent of a transit van. This
was far greater than it could safely handle and it gave way as it was simply unable to bear the
load. Magistrates were told that, as a company routinely engaged with work at height, Lofty
Creations should have known the property required a scaffold built to an approved design by a
specialist structural engineer.
Lofty Creations UK Ltd was fined £5,000 and ordered to pay a further £1,019 in costs after
pleading guilty to a single breach of the Construction (Design and Management) Regulations
2007.
After the hearing HSE Inspector Simon Hester said:
“Lofty Creations failed to adequately plan and design the scaffold that collapsed; failed to
manage the storage of heavy materials; and ultimately failed to protect its workforce.”
8 | H&S Newsletter
Liverpool NHS Trust in court over deadly asbestos fibres
A Liverpool NHS Trust has been fined £10,000 after it emerged its workers may have been
exposed to potentially-deadly asbestos fibres.
The Royal Liverpool and Broadgreen University Hospitals NHS Trust was prosecuted by the Health
and Safety Executive (HSE) after the fibres were discovered in the basement of its offices at
Derwent House on London Road in January 2013.
Liverpool Magistrates’ Court heard that the organisation had failed to act on a survey carried out
in 2006 which identified that an area of the basement may contain asbestos, and recommended
that its condition should be properly assessed. A HSE investigation found that workers had
regularly been visiting the basement to access patient records. The risk to them came to light on
9 January 2013 when the NHS Trust’s health and safety manager noticed that the doors to an
out-of-use goods lift in the basement were damaged. The lift doors contained asbestos, which
meant there was a risk of exposure to those accessing the basement. A subsequent survey found
that asbestos fibres were present in several different areas of the basement.
The Royal Liverpool and Broadgreen University Hospitals NHS Trust, of Prescot Street in Liverpool,
was fined £10,000 and ordered to pay £696 in prosecution costs after pleading guilty to two
breaches of the Health and Safety at Work etc Act 1974 on 26 February 2015.
Speaking after the hearing, HSE Inspector Imran Siddiqui said:
“Around 4,000 people die every year as a result of breathing in asbestos fibres, making it the
biggest single cause of work-related deaths in the UK.
“It’s therefore vital that organisations take the risks from asbestos seriously. The Trust, in line with
the 2006 survey, should have assumed asbestos was present in an area of the basement and
taken appropriate action to make it safe for people working there.”
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Construction firms prosecuted after worker crushed by falling conveyor
Three construction companies have been fined after a worker was crushed by a falling section of
conveyor at a plant in Sleaford.
The incident happened during construction of the Sleaford Renewable Energy plant on Boston
Road on 14 February 2013 when the 4.5 tonne conveyor section overturned during installation. It
trapped Michael Doyle, a 49-year-old employee of Derby-based Shaw Group UK Ltd, who
suffered multiple injuries including four cracked vertebrae, broken ribs, a punctured lung and
broken ankle. He has not returned to work since.
Lincoln Magistrates’ Court heard that Shaw Group UK Ltd had been subcontracted to install a
boiler and associated equipment , including a conveyor system to carry large straw bales, by
Burmeister and Wain Energy (BWE). BWE was one of two Danish companies, the other being
Burmeister and Wain Scandinavian Contractor (BWSC), that had formed a consortium to design
and build the centre, which burns straw and wood to create electricity and also to provide heat
for some local authority buildings.
Shaw Group UK Ltd had already lifted three conveyor sections on to a slope leading up to the
boiler by craning them on to a platform at the bottom of the slope. Skates were bolted to the
front and rear legs which helped keep the section of conveyor on rails as it was dragged up the
slope by manual winches set up at the top. In order to fix the sections of conveyor in place
workers needed to remove the skates and used jacks to raise the legs enough to take the skates
off and then lower the legs down onto the rail. This was carried out successfully on the first three
sections but as the jacks were released, on the lower legs of the fourth and final section, one side
lowered faster than the other and the conveyor swung towards two workers before violently
swinging the other way and turning on its side, trapping Mr Doyle, underneath.
A Health and Safety Executive (HSE) investigation identified safety failings by all three companies.
Shaw Group UK Ltd had produced a risk assessment and a plan for the installation but it did not
consider removal of the skates from the legs of the conveyor sections or the manual winching of
the load up the slope. The document had been sent to BWE for checking but the company did
not pick up on the omission. The lifting operation using jacks was not carried out safely and none
of the three defendants was managing or monitoring the work in a way that would ensure its
safety.
The investigation also found that BWSC failed in its responsibility as principal contractor to ensure
work was properly assessed and co-ordinated between the many contractors on site.
Shaw Group UK Ltd, of Derby, was fined a total of £17,350 and ordered to pay costs of £1,710
after pleading guilty to breaching Regulation 3(1) of the Management of Health and Safety at
Work Regulations 1999; Regulation 8(1)(c) of the Lifting Operations and Lifting Equipment
Regulations 1998; and Regulation 13(2) of the Construction (Design and Management )
Regulations 2007.
Burmeister and Wain Scandinavian Contractor, of Denmark, was fined £4,670 and ordered to pay
costs of £1,710 after pleading guilty to breaching Section 3(1) of the Health and Safety at Work
etc Act 1974.
Burmeister and Wain Energy, also of Denmark, was fined £5,350 and ordered to pay costs of
£1,710 after admitting a breach of Regulation 13(2) of the Construction (Design and
Management) Regulations 2007. This case highlights that the absence of a UK base is no barrier
to prosecution of a company.
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Engineering firm in court after worker’s hand pulled into machinery
An Aberdeenshire firm has been fined for serious safety failings after a worker was injured when
his gloved hand was pulled into a metalworking lathe.
Mariusz Toporek, 23, living in Macduff but originally from Poland, was employed by Macduff
Shipyards Limited in its precision engineering department and was working on a lathe when the
incident happened on 19 March 2013. The lathe had been remotely set to the correct new
diameter by computer, but Mr Toporek had switched to manual mode and was using emery cloth
to finish the pins off when the emery cloth caught in the machinery, pulling his gloved right hand
in with it. Mr Toporek suffered strained tendons in two fingers and a fractured bone in his hand,
and was off work for four weeks as a result.
An investigation by the Health and Safety Executive (HSE) found that the company had failed to
carry out any assessment of the risks relating to work in the precision engineering department or
for the use of any of the machinery within it. Inspectors also found that the day-to-day running
of the workshop, including health and safety, was left to the operations manager, who had
received no specific training for this role and whose knowledge was limited. The company had
failed to carry out a risk assessment for the use of emery cloths – which was seen as normal
practice – and therefore workers had developed and used an unsafe working method. Safer
alternatives were available but had not been explored.
Banff Sheriff Court was told that the company had two previous convictions for health and safety
breaches in December 1999 and August 2000, resulting in fines of £500 and £2,000 respectively.
Macduff Shipyards Limited was fined £8,000 after pleading guilty to breaching Section 2(1) of the
Health and Safety at Work etc Act 1974.
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Skipper jailed for failings that lead to death of diver
Guthrie Melville, the skipper of the boat ‘Solstice’, has been sentenced to nine month
imprisonment at Stirling Sheriff Court for health and safety regulatory failings that lead to the
death of James Irvine in Largo Bay, Leven.
Melville was found guilty after trial on 17 February 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). On 24 March 2011, James Irvine was scuba diving
from Guthrie’s vessel 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 a dive, James
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 by a Police Scotland dive team. James Irvine’s body was subsequently found
and recovered from the seabed by police divers on 25 March 2011.
The court heard that Melville, as the master of the vessel and the dive contractor had failed to
assess the risks to the health and safety of James Irvine or provide appropriate supervision,
equipment including a means of communication and essential safety gear. Melville also 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 James Irvine in the event of a
reasonably foreseeable emergency. The court also heard that 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.
Judith Tetlow, HSE Principal Inspector of Diving, said:
“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.”
12 | H&S Newsletter
Scottish Fire and Rescue Services fined over health and safety breaches
The Scottish Fire and Rescue service has been fined £54,000 after admitting health and safety
breaches that contributed to a firefighter’s death.
During a narration of events on 12th July 2009, the court heard that Mr Williamson had become
separated from a colleague after taking a wrong turn as they exited a smoke-filled bar. The
firefighters had been attempting to locate the blaze in the basement, but had retreated due to a
lack of visibility and heat. When it was discovered that Mr Williamson had not followed his
colleague out, radio messages revealed that he had turned left instead of right, and had become
stuck in the men’s toilets on the ground floor. Colleagues who tried to rescue him were faced
with the bar floor collapsing and flames coming up from the basement where there was an
intense glow “similar to flowing lava”.
At the High Court in Edinburgh, the Scottish Fire and Rescue Service pled guilty to a single charge
arising from the incident of breaching the Health and Safety at Work Act 1974 between July 13,
2008 and July 12, 2009. It admitted failing to provide firefighters, including Mr Williamson, with
a system of work that was, so far as reasonably practicable, safe and without risks to health.
It also failed to have in place effective systems of radio communication and implementation of
procedures for firefighters using breathing apparatus on the date of the incident.
It further admitted failing to adequately monitor and ensure attendance by firefighters at training
courses and adequately training them to ensure that close personal contact was maintained
during firefighting and search and rescue operations, in the year leading up to Mr Williamson’s
death.
Lord Uist said that, in fixing the financial penalty, he took into account that he was dealing with a
public body whose daily business was the prevention of injury and death and preservation of
property.
He said there had been “co-operation of the highest degree” by an employer with a good health
and safety record, and said he accepted that the case involved an isolated failing which fell very
much at the lower end of the scale of criminal culpability.
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Focus on: The Corporate Manslaughter and Corporate Homicide Act 2007 and Associated Case Law
Corporate Manslaughter Update: A. Diamond and Son (Timber) Ltd
The sawmill company, A. Diamond and Son, was fined a total of £75,000 and ordered to pay
£15,832 in costs for safety failings that led to the death of employee, Peter Lennon in September
2012. The sentence followed a guilty plea to the charge of corporate manslaughter in December
2014.
A joint investigation by the Police Service for Northern Ireland (PSNI) and the Health and Safety
Executive for Northern Ireland (HSENI), revealed that the employee was carrying out a repair to a
large automated machine when the accident occurred. It is reported that the machine had not
been isolated from all power sources so that, during the work, the machine moved and crushed
him. This is said to have been allowed to occur even though repairs could have been carried out
safely whilst the machine was removed from power sources. In addition, it is said that the safety
guards preventing access to dangerous parts of the machinery had been modified and regularly
bypassed for routine tasks. The electrical safety key for the safety gates had also been disabled,
and operators did not know how to operate the machine in maintenance mode.
Reports suggest that the judge at Antrim Crown Court (Northern Ireland) told the directors of A.
Diamond and Son that he was “staggered” by the fact that the 75-year-old family-run company
with 50 employees had not been told how to operate their machinery in safety maintenance
mode. However, he was prepared to accept the gross failures resulted from human failings and
that cutting corners for greater profits was not the driving force here. The prosecuting lawyer
described the tragedy as “an accident waiting to happen” and that the failure in the company’s
health and safety procedures meant the employees carrying out maintenance were “basically
taking their lives in their own hands”. Since the incident, there has been an improvement in safety
standards.
Linda Murphy, an inspector with the HSENI, said: “[This] death could easily have been avoided if
his employer had properly considered the risks associated with maintenance of the saw. Safety
devices must be used and safe systems of work, such as using the machine in maintenance mode,
must be followed at all times. Failure to do so costs lives.”
14 | H&S Newsletter
Corporate Manslaughter Update: Peter Mawson Ltd
Peter Mawson Ltd, a building and joinery firm, were sentenced at Preston Crown Court on 3rd
February 2015 following a guilty plea in December to corporate manslaughter and a breach of
the Health and Safety at Work Act by failing to ensure the safety of employees. The company was
fined £200,000 for the corporate manslaughter offence, and £20,000 for the Health and Safety
breach.
Peter Mawson, owner of the company, also pleaded guilty to a breach of the same Act and was
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
and ordered to take out a half page spread in the local newspaper; and
— pay costs of £31,504.77.
At around 3:15pm on Tuesday 25 October 2011 emergency services attended West Cumberland
Farmers LTD, Lindal, Ulverston, following a report that a man had fallen through a roof. The man,
42 year old Jason Pennington, had been working on the roof and had fallen through the skylight
from a height of approximately 7.6 meters onto a concrete floor. He was taken to Furness General
Hospital where he died a short time later.
The joint investigation by Cumbria Constabulary and the Health and Safety Executive (HSE) found
there was no edge protection, no means of preventing falls through fragile skylights and no safe
means of access onto the roof. His Honour Judge Russell found that it was not a specific
deliberate act of the parties but simply the defendants had completely failed to address the issues
of safety at the time the work was authorised.
Peter Mawson Ltd, said HSE inspector Chris Hatton, “did nothing” to ensure Mr Pennington was
safe while working on the roof. He went on to comment on the preventable nature of the case:
“Peter Mawson knew the clear panels on the roof weren’t safe to walk on but neither he nor his
company provided any equipment to prevent workers falling to their death. If scaffolding or
netting had been fitted under the fragile panels, or covers had been fitted over them, then Jason
would still be here today.”
15
Corporate Manslaughter Update: Pyranha Mouldings
Pyranha Mouldings, a kayak manufacturer, was convicted of corporate manslaughter in January
2015 following the death of an employee who became trapped in an industrial oven in Cheshire
in 2010. Peter Mackereth, the company’s technical director, who designed the oven which was
used to mould the kayaks, was also convicted at Liverpool Crown Court of two charges of
breaching the Health and Safety at Work Act 1974.
The company have recently been fined £200,000 for the corporate manslaughter conviction. In
addition, the company’s technical director has been fined £25,000 for the health and safety
breaches, together with a prison sentence of 9 months, suspended for 2 years.
The employee, Alan Catterall had been cleaning the oven when another worker turned it on
without realising that he was inside. The design of the oven meant that the doors automatically
shut and locked the moment it was switched on, trapping Catterall inside. He suffered severe
burns and died from shock on 23 December 2010.
The Health and Safety Executive (HSE) inspector who investigated Catterall’s death, Martin
Heywood, told the court that the automatic locking mechanism had meant that there was a
“high risk” of somebody becoming trapped inside. He said that if Mackereth and the firm had
“properly considered the risks to employees when they designed, installed and operated the
ovens”, then Catterall would not have died. He noted that the safety failings included:
— the lack of an escape hatch fitted to the oven;
— the fact that there was no clear line of sight from the control panel to the oven door;
— the lack of risk assessment and training in how to use the new oven; and
— the lack of written instructions on cleaning and maintenance of this oven.
16 | H&S Newsletter
Corporate Manslaughter Update: Summary
The 2007 Corporate Manslaughter and Corporate Homicide Act was intended to make it easier
for organisations to be held accountable for deaths caused by their failures. An organisation is
guilty of a criminal offence under the Act if the way in which its activities were managed or
organised caused a person’s death, and amounted to a “gross breach” of a relevant duty of care
owed by the organisation to the deceased. 16 cases have now been brought under the 2007 Act
since it came into force in April 2008, with the Pyranha conviction being the latest success for the
Crown Prosecution Service.
In many of the successful prosecutions, a “running theme” seems to be issues such as lack of risk
assessments, inadequate training / supervision and failure to put in place appropriate safety
measures. This has meant, in terms of a corporate manslaughter prosecution, that the
prosecution has been able to establish a “gross breach of duty of care”. Conversely, in the cases
of acquittal, whilst safety measures may not have been ideal (e.g. risk assessments may not have
reached the required standard, but did exist) the prosecution has failed to establish that any
failings were “gross” i.e. falling far below what could reasonably be expected. Mistakes or errors
of judgement are not sufficient to meet the relevant standard for corporate manslaughter.
So far, the highest fine has been £500,000 which was imposed on Sterecycle Rotherham Limited
in November 2014. As the company is in administration, whether that fine is paid, remains to be
seen. The highest fine imposed on an individual (prosecuted alongside a corporate manslaughter
charge) is the £183,000 fine imposed on Mervyn Owens, together with an order disqualifying
him from acting as a company director for 5 years. His company, Mobile Sweepers, was fined
£8,000 plus £4,000 in costs after admitting a corporate manslaughter charge.
Fines for corporate manslaughter and health and safety offences are technically unlimited. The
definitive Guidance on the sentencing of corporate manslaughter offences suggests that fines
should seldom be below £500,000 and may be measured in millions. However, until the
Sterecycle prosecution, no company had reached the £500,000 limit with fines ranging from
£100,000 to £480,000. This is due to a variety of factors but primarily the small size of the
companies prosecuted to date.
But all of this may change. We reported at the beginning of this year that new guidance for the
sentencing of corporate manslaughter, health and safety and food safety offences had been
issued for consultation. The Sentencing Council (England and Wales) proposes to create a more
consistent approach to sentencing for both fatal health and safety offences and corporate
manslaughter, given their close interplay. It sets different “tariffs” depending on the size of a
company (based on turnover) within which fine starting points and ranges are set out taking into
consideration the offenders’ means and the seriousness of the offence to ensure ‘proportionate
sentences’. Indeed, if the proposed Council guidelines were applied to recent health and safety
cases which have come before the courts, based on the turnover and culpability of the companies
in question, the resultant fine would be far higher than the fine imposed, in some cases millions
of pounds more.
With the initial trickle of corporate manslaughter prosecutions seemingly now gathering
momentum, particularly towards the end of 2014 and beginning of 2015, it is important for
senior officers in all organisations to ensure that their health and safety risks are properly
managed. Aside from the financial and reputational impact for companies, the human cost alone
means that it is crucial that organisations take their health and safety obligations seriously.
Adequate safety policies and procedures, including appropriate training and record keeping
which have appeared to be the downfall of companies thus far, will require to be fully embedded
in the culture of the company in order to ensure employees are kept safe whilst at the same time
safeguarding the company. Furthermore, although there have been no cases as yet prosecuted in
Scotland, the Lord Advocate has confirmed that a number of cases are under consideration. It is
inevitably only a matter of time before a successful corporate homicide prosecution is also seen in
Scotland.
17
Oil and Gas News
Civil Aviation Authority (CAA) report on progress to improve safety of offshore helicopter operations
The CAA have published a report on the progress of its Safety Review of offshore helicopter
operations. The comprehensive Safety Review that commenced in February 2014, examined the
risks to helicopter operations to support the oil and gas industries in and around the North Sea. It
identified a wide range of opportunities to improve the safety of those operations and, in
particular, to increase the chances of passengers and crew surviving an accident. The update
published on 28th January 2015 reports on the progress against those actions and
recommendations as at 31 December 2014.
Substantial improvements to offshore helicopter safety have already been initiated, but the CAA
acknowledges that there is still more work to be done. Key safety improvements introduced since
the CAA review was launched include:
— Stopping flights over the most extreme sea conditions;
— Ensuring every passenger on an offshore helicopter flight is equipped with new improved
Emergency Breathing System;
— Review of the human performance aspects of flight crew responses to engine bay fire
warnings, specifically within the offshore operations environment;
— Standardisation of pilot training, particularly for the use of complex automated systems on
helicopters and the associated operating procedures;
— Establishing a new top level group to drive change, the Offshore Helicopter Safety Action
Group (OHSAG) that includes unions, industry and the CAA; and
— With effect from 1 April 2015, the CAA will prohibit helicopter operators from carrying
passengers on offshore flights, except in response to an offshore emergency, whose body
size, including required safety and survival equipment, is incompatible with push-out window
emergency exit size.
In the meantime, the OHSAG will continue to drive change by working closely with other
stakeholders such as helicopter manufacturers and international regulators, especially the
European Aviation Safety Agency. In particular, longer term recommendations focused on
helicopter design, will require collaboration of the CAA, OHSAG and the organisations
responsible for change, to ensure the safety improvements are delivered as soon as possible.
18 | H&S Newsletter
Control of Major Accident Hazards Regulations 2015
Following the Health and Safety Executive consultation, which we previously reported on, the
COMAH Regulations 2015 have been laid before Parliament and will come into force on 1 June
2015, along with the revised guidance. This guidance is for anyone who has duties under the
COMAH Regulations 2015, particularly operators of establishments, and others such as local
authorities and emergency services. The aim of the Regulations is to prevent and mitigate the
effects on people and the environment of major accidents involving dangerous substances.
Although many duties will be familiar from the 1999 Regulations, the 2015 Regulations contain
some new or changed duties including:
— The list of substances covered by the Regulations has been updated and aligned to the CLP
Regulation;
— Some definitions have been changed;
— There are transition arrangements for safety reports;
— For emergency planning, there is a new requirement for co-operation by designated
authorities (Category 1 responders, as defined in the Civil Contingencies Act 2004) in tests of
the external emergency plan;
— There are stronger requirements for public information including a duty for lower-tier
establishments to provide public information. There are provisions for electronic access to
up-to-date public information;
— The domino effects duty is broader, including a duty for members of a domino group to
co-operate with neighbouring sites to share relevant information;
— Stronger requirements for the competent authority on inspection;
— After a major accident local authorities must now inform people likely to be affected.
19
Health and Safety – what we do
CMS Cameron McKenna is recognised as a leading firm in the area of Health
and Safety. We provide specialist advice on regulatory compliance, prosecutions,
investigations and corporate governance. We have specialised knowledge of the
offshore and energy sector in particular, which faces greater challenges and
regulation than most.
However, our client base and expertise spans a broad range of sectors, including:
— Construction
— Health and Healthcare
— Energy
— Global Health and Safety Advice
— Hotel and Leisure
— Manufacturing
— Renewables
— Transport
Regrettably, accidents at work can be serious and sometimes result in fatalities. Our clients
appreciate the high level of attention and support we are able to offer during what can be a
difficult time for any organisation. We are able to provide assistance with every aspect of incident
response, including incident investigations, dealing with witnesses, defending prosecutions and
advising senior management on relations with the Health & Safety Executive.
Emergency Response Team
Our specialist team is on call to provide assistance and respond to incidents 24 hours a day, every
day of the year. Our team is qualified to practise in England, Wales and Scotland but also regularly
advises clients in relation to international working practices and health & safety matters in other
jurisdictions.
Our clients come to us for advice on:
— Emergency Response
— Health and Safety prosecutions
— Crisis Management
— Accident Inquiries
— Formal interviews and investigations undertaken by inspectors
— Corporate Manslaughter investigations
— Inquests and Fatal Accident Inquiries
— Appeals against Improvement and Enforcement Notices
— Compliance with UK and European regulatory requirements
— Drafting corporate Health and Safety policies and contract documentation
— Safety aspects of projects and property management
— Due diligence in corporate acquisitions/disposals
— Directors’ and officers’ personal liabilities
— Management training Courses
— Personal injury defence
— Risk management and training
20 | H&S Newsletter
Recent Experience
— Defending Health and Safety prosecutions of client companies.
— Appealing other types of enforcement action against companies (e.g. Prohibition Notices).
— Conducting numerous Coroners’ Inquests and Fatal Accident Inquiries - including some of the
most high-profile and complex Inquiries to have taken place in relation to offshore incidents.
— Obtaining the first ever award of expenses against the Crown in favour of a client company
following a Fatal Accident Inquiry.
— Taking Appeals to the High Court of Justiciary.
— Taking Appeals on human rights issues to the Privy Council.
— Defending Judicial Reviews.
— Advising on forthcoming Health & Safety legislation.
— Assisting clients in consultations with the Health and Safety Executive and other regulatory
bodies, including the Department for Energy and Climate Change.
— Advising clients in relation to Safety Cases, Corporate Governance issues and Directors’ duties
and liabilities.
— Undertaking transactional due diligence in relation to Health and Safety matters.
— Carrying out Health and Safety audits.
— Advising clients on incident investigation, legal privilege and dealing with HSE inspectors.
— Preparing and drafting incident investigation reports.
— Advising clients on media, public relations and reputational issues following incidents.
— Advising clients in the immediate aftermath of an incident and providing emergency response
services.
— Successfully defending environmental prosecution.
For more information, please contact:
Emergency Response Hotline: 0333 20 21 010
Jan Burgess
London
T +44 (0)20 7367 3000
M +44 (0)7811 362201
Jacqueline Cursiter
Aberdeen
T +44 (0)1224 267150
Rosalind Morgan
Aberdeen
T +44 (0)1224 267138
Craig Watt
Edinburgh
T +44 (0)131 200 7500
21
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