Health

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Health Safety From The Dock

• Tom Stocker Fiona Clarke

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A paradigm shift?

• Increasing Fines
• Transco, Balfour Beatty, BP
• Individuals are increasingly being prosecuted
• Manslaughter charges are being brought
• Corporate Manslaughter/ Homicide reforms in 2007

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What this sessions is about

• Updating you on the law
• Insight into the prosecution approach
• Identifying guiding principles

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Scenario 1 The Accident

• Its Friday, 7 September 2007. You work for Dig
  Limited. You are the Director with operational
  responsibility for a quarry. The project is
  similar to a previous project two years ago. You
  are using the same contractors for the works
  (Excavation Limited). The project commenced four
  months ago.
• At 3pm you happen to be in the site office. The
  supervisor for Excavation comes running in to say
  there has been a terrible accident. One of
  Excavation's employees (Bill) was walking by an
  excavation pit when he was struck by the rotating
  arm of a forklift truck and he fell into the pit.
  Bill died from his injuries.
• The HSE and police arrive at site. They go
  straight to the scene of the accident and you
  accompany them. At 6pm one of the Inspectors asks
  to speak with you about the accident.

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Scenario 1 - Questions

• Any comments?
• Why did I caution the Director?
• Why did I ask about the Director's position in
  the Company?
• Should the home address have been given out?
• Following the Inspectors warning would you
  interview the witnesses?
• What would you have done differently?
• Are criminal proceedings being contemplated?

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The HSEs perspective

• HSEs instructions
• Occasionally duty holders or senior managers
  may offer unprompted explanation for an incident,
  or other voluntary admissions that prove helpful
  in subsequent proceedings.
• Helpful to whom?
• What proceedings?

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The HSEs perspective

• HSEs instructions
• Obtain an early insight into the duty holders
  thoughts regarding cause and blame enabling any
  potential defence or mitigation to any subsequent
  proceedings to be identified.
• And circumvented?

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The HSE Perspective

• HSE Enforcement Policy
• enforcing authorities should identify and
  prosecute or recommend prosecution of individuals
  if they consider that a prosecution is warranted.
  In particular, they should consider the
  management chain and the role played by
  individual directors and managers, and should
  take action against them where the inspection
  reveals that the offence was committed with their
  consent or connivance or to have been
  attributable to neglect on their part

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The Law

• Health and Safety at Work Act 1974
• Endangerment offences risk is enough!
• Causation not necessary
• Reverse burden of proof- can you show you did all
  that was reasonably practicable?
• S.33 Corporate Liability
• S.7 Individual liability
• S.37 - Director/ Senior Management Liability

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Gross Negligence Manslaughter/ Culpable Homicide

• Individuals
• grossly negligent / reckless act which causes
  death
• 12 Company Directors convicted
• Corporations
• 7 Companies convicted all small companies
• Identification principle the guilty controlling
  mind

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Scenario 2 the Decision to Prosecute

• The HSE, Police and Procurator Fiscal liaise and
  a decision is made to prosecute. What are the
  most likely charges? (under the current law)
• A. The Forklift truck driver culpable homicide.
• B. Excavator - manslaughter and S.2.
• C. Dig culpable homicide and S.3.
• D. Excavator and Dig - S.2 and S.3.
• E. Excavator - manslaughter and S.2, Dig - S.3,
  the Forklift truck driver and Digs Director -
  s.37.
• F. Other.

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The Corporate Manslaughter and Corporate Homicide
Bill

• The reason we need to be so careful!
• The offence
• An organisation is guilty of the offence of
  corporate manslaughter of the way in which any of
  the organisations activities are managed or
  organised by its senior managers-
• (a) causes a persons death and
• (b) amounts to a gross breach of a relevant duty
  of care.

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Scenario 3 the decision to prosecute

• The Corporate Manslaughter and Corporate
  Homicide Act 2007 is in force. What charges may
  now be brought?
• A. The Forklift truck driver culpable homicide.
• B. Excavator - Corporate homicide and S.2.
• C. Dig - Corporate homicide and S.3.
• D. Excavator and Dig - S.2 and S.3.
• E. Excavator - Corporate homicide and S.2, Dig -
  S.3, the Forklift truck driver and Digs Director
  - s.37.
• F. Other.

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Scenario 4 The Prosecution

• Excavator is prosecuted for Corporate homicide
  and Dig for a s.3 offence. Dig has now fully
  investigated the incident and is defending the
  charge as it was ascertained that the fork lift
  driver had called Bill over to help. Digs
  position is that the area didn't need to be
  cordoned off as only Excavator were working on
  that part of the site. It was also blindingly
  obvious that a forklift truck was being used. The
  fencing was struck by the arm of the fork lift
  truck and even the most robust fencing would not
  have prevented the fall. The fencing was
  sufficient to withstand a person falling against
  it. The Director is a Crown witness.

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The verdict

• Members of the Jury what is your verdict?
• Guilty
• Not Guilty

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Scenario 5 the fine

• Dig are convicted. Digs failings are found to
  have caused death. Last year Dig had a turnover
  of 50m and made a net profit of 6m. Of that 5m
  was reinvested in the business and 1m was paid
  to shareholders by way of a dividend.
• Youre the judge. What level of fine do you
  impose?
• A. 50,000
• B. 500,000
• C. 1m
• D. 6m
• E. Other

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Tips - Internal Investigations

• Management of Health and Safety at Work
  Regulations 1999
• Not prescriptive what to put in the report is a
  matter for you
• Texts survive
• Texts have evidential value
• Privilege is the only protection from disclosure

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Tips - Interviews

• S.20 Health and Safety at Work Act 1974
• Must answer
• Answers cannot be used against you
• Nominated representative
• S.13 14 Criminal Procedure (Scotland) Act 1995
• obliged to give name address only
• Right to have solicitor notified
• In practice, solicitor allowed to be present