Edinburgh University Annual Health and Safety Seminar Legal Update

1. Edinburgh University Annual Health and Safety SeminarLegal Update Presented by Tom Stocker

2. Introduction Health and safety law – the extent of the duties owed Corporate Manslaughter Review - recent convictions and new prosecutions Fee for Intervention - how it is working in practice and how it can be managed internally

3. Risk, safety and reasonable practicability • S.2 HSWA – speaks of safety • S.3 HSWA – concerned with risk • Court of Appeal - R v Tangerine / R v Veolia – Aug 2011 • concepts of safety and risk are the same • the accident is evidence of risk only, not proof • causation of the injury is not an ingredient of the offence: exposure to a risk of injury is • Prosecution too fixated on proving causation – often unhelpful and unnecessary

4. Risk • What Risk of Injury is relevant?: • What would a reasonable and prudent employer have foreseen by reference to prevailing knowledge andstandards – a “material risk” • An employer must enquire into the possibility of injury and must think deliberately about things which are not obvious • The risk of injury must be: • Reasonably foreseeable (not fanciful/hypothetical) • Arising out of business (not everyday risks)

5. Reasonable Practicability • Foreseeability – relevant to the defence of whether all reasonable practicable precautions having been taken • Baker v Quantum Clothing Group (April 2011) • The criteria relevant to reasonable practicability must …require consideration of the nature, gravity and imminence of the risk and its consequences, as well as of the nature and proportionalityof the steps by which it might be addressed and a balancing of the one against the other” • Substantial disproportion test criticised

6. Corporate Manslaughter and Corporate Homicide Act 2007 An Organisation…. is guilty …. … if the way in which its activities are managed or organised … … causes a person’s death … … and amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased … only if the way its activities are managed by senior management is a substantial element of the breach of the duty of care….

7. Corporate Manslaughter: Convictions Cotswold Geotechnical (Holdings) Ltd Trench collapsed on employee Fined £385,000 payable over 10 years JMW Farms Ltd Metal bin fell on employee Fine of £187,000 Lion Steel Ltd Employee fell through fragile roof panel Directors prosecuted with Gross Negligence Manslaughter and s.37 HSWA Company fined £480,000

8. Corporate Manslaughter: Ongoing Prosecutions PS & JE Ward Ltd Employee electrocuted when hydraulic-lift trailer came into contact with overhead power line Company charged with corporate manslaughter & s. 2 HSWA Plea and Directions hearing at Norwich Crown Court 14 Feb 2013 Investigations into an earlier accident could form part of current proceedings, a decision is to be reached at next hearing on 22 March 2013 MNS Mining Ltd Death of 4 miners in Gleision colliery Company - 4 charges of corporate manslaughter Mine manager - 4 counts of gross negligence manslaughter Plea and case management hearing at Swansea Crown Court on 20 May 2013

9. Corporate Manslaughter: Ongoing Prosecutions Prince’s Sporting Club Ltd Child fell from a banana boat ride and was fatally injured by the boat towing it Company charged with corporate manslaughter & s.3 HSWA Director charged with s.37 HSWA Plea and case management hearing at Southwark Crown Court on 26 April 2013 Mobile Sweepers (Reading) Ltd Employee sustained fatal crush injuries when he removed a hydraulic hose which caused the back of a road-sweeping truck to fall on him. Company charged with Corporate Manslaughter Sole Director charged with gross negligence manslaughter. Also charges under s.2 HSWA 1974 and Reg 5(1) Provision & Use of Work Equipment Regs against the Company and Director. First hearing at Basingstoke Magistrates Court on 21 March 2013

10. Corporate Manslaughter: Recent Statistics) England & Wales Number of new corporate manslaughter cases opened by the CPS rose 40% from 45 in 2011 to 63 in 2012 141 corporate manslaughter cases opened since records began in 2009 56 cases currently being investigated for prosecution Scotland – House of Commons Select Committee on Health & Safety Q794 Lindsay Roy: How many prosecutions have there been in Scotland under the Corporate Manslaughter and Corporate Homicide Act 2007, and what were the outcomes of these cases? Lord Advocate: None, but a number are under consideration

11. Fee for Intervention (“FFI”) What is FFI? Health and Safety (Fees) Regulations 2012 From 1 October 2012 duty imposed on the HSE to recover costs of an intervention from duty holders “In the opinion of the Inspector, there is or has been a contravention of health and safety law that requires them to issue a notice in writing of that opinion to the duty holder” HSE can charge for all investigation and follow up work until a prosecution is commenced. £124 hour unless ‘specialist input’ required

12. FFI – How is it Working in Practice? FFI invoices sent out every 2 months - a company could get a number of invoices during the course of an HSE investigation First round of invoices have now been dispatched for October – November 2012: 1,419 invoices worth over £700,000 Of those around 10% were for more than £1000, 20% were between £500 and £1000, and 70% were for less than £500 [Challenges] Payment of an invoice could be used in criminal prosecution as evidence of an admission there was a material breach Appeal process - need to decide whether to pay the invoice. HSE can enforce payment through a civil action. HSE could do that before the appeal is determined - decided on a case by case basis

13. MANAGING FFI INTERNALLY Nominate a specific person internally to manage FFI across the business: Ensures a consistent approach Enables appeals to be considered quickly (only 21 days to appeal) An internal point of contact with HSE should: Ensure areas of investigation are relevant – requests for documents should be focused Ensure key people are interviewed – try to avoid more statements than necessary being taken Keep an internal record of who is interviewed and dates/ length of time an Inspector is on site

14. Questions For Further Information Tom Stocker Tom.stocker@pinsentmasons.com 0131 777 7362

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