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Health and safety update HBF – 27 October 2010 Rupert Nevin DWF LLP

Health and safety update HBF – 27 October 2010 Rupert Nevin DWF LLP. September 2010. Quick snapshot/update. Lord Young - something about nothing? Fire cases: Shell; New Look; Nevins (no relation) Corporate killing: remains untested

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Health and safety update HBF – 27 October 2010 Rupert Nevin DWF LLP

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  1. Health and safety updateHBF – 27 October 2010Rupert NevinDWF LLP September 2010

  2. Quick snapshot/update • Lord Young - something about nothing? • Fire cases: Shell; New Look; Nevins (no relation) • Corporate killing: remains untested • Exploring today emerging themes and trends in the prosecution of cases which define how they are investigated and in consequence how companies should prepare, promote and prepare defences whilst under investigation • Looking especially at causation

  3. House builders • Fines broadly under £100,000 threshold • JBB Homes Ltd: £20,000 (director J Burt fined £10k) • DC Kennedy Homes £7500 • Clyde Valley Housing Association £70,00 • PIB (UK) Limited £75000 plus 5 yr disqualification • Laing O’Rourke: £50,000 • Mainly “non-causative” cases

  4. New playing field • Breach • Breach and injury • Breach and serious injury • Breach causing injury • Breach causing serious injury • Breach and death • Breach causing death • Breach causing deaths

  5. SentencingGuidelines Council Corporate Ruling Prosecution (HSWA) Health and Safety Offences Act 2008 Prosecution (Regs) Enforcement Notice/Advisory Warning

  6. Recent cases – difficult to predict outcome • Buncefield: complex trial - lifting the corporate veil/systemic defences. The ruling included £1.3 million in fines for pollution offences – a record for a single incident in the UK – while a £3-million fine for Total was the second highest to be handed down for safety offences. Mr Justice Calvert-Smith said the companies had shown “a slackness, inefficiency and a more or less complacent attitude to safety.”But modest fines in relation to damage claims? • Bodycote -'exceptional case'. Various aggravating features. Attempted to rely on the case of Rv TDG (UK) Ltd [2008], in which the Court of Appeal appeared to approve a benchmark figure of £600,000 for a fatality with the added ingredient of safety being sacrificed for profit. • But… Imperial Tobacco - £80,000!

  7. Themes • Do not expect fairness in process or outcome • Decision to prosecute is influenced by extent of injury/attitude of family/inquest findings • Most non-causative cases result in fines under £100k • Applies even to big organisations (American Airlines, Imperical Tobacco) • Case of Howe still stands firm as good law • SGC applies to fatalities only • Key wording is “significant” cause (more than minimal) • Pros/may agree basis of plea (causation)- Judge not bound to follow • Some causative cases fall under £100k e.g. Broxtowe DC v Raleigh; R v Cardiff City Council Transport

  8. Causation • Prosecution does not have to prove causation • Pros must prove “failure to ensure” • Eventuation of risk (accident) – self-evident breach (R v Chargot) – extended in R v Electric Gates to s.3 HSWA 1974 • Can be multiple causes • Pros. may fudge causation e.g. breaches “associated” with death/injury; cumulative breach or breaches giving rise to situation where employee at peril • Fact that no previous accident might be relevant – or could be interpreted as “accident waiting to happen” • How pros approach causation can give rise to difficulties in summing up/agreeing BoP/evidence (Tangerine/Veolia)

  9. Defences • Defence can still argue • Act or default of another • Reasonably practicable steps • Risk not foreseeable (objective or subjective standard?) • Defence can also seek to defend a “causative case” on basis that its acts or default did not “cause” (not limited to SGC definition of causation)

  10. Fatalities • Where death, position becomes more complex • Pros has to prove: • Gross breach • Significant cause of death • Associated with senior management failings • What is senior management? • Where failings of 1 or 2 senior managers- is this what law envisaged? • Company might want to blame director/senior manager • Conflict of interest

  11. What can we take from this? • Accident investigations must be robust • Remedial steps will be used to identify pre-accident failings (inquests) • Ensure reports are protected by privilege • Co-ordinate management of civil claims • Consider/promote defences • Act or default of another • No risk • No foreseeable risk • Consider causation issues: background/cultural/contributory/causal

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