RiskXtraJune2019

Opinion: Fatal Accidents in the Workplace
This is well demonstrated by the
misconceived attempted prosecution of the
Maidstone and Tunbridge Wells NHS Trust, the
largest organisation to date prosecuted for
corporate manslaughter under the Act. A
mother died following a Caesarean section
while under the care of two qualified and
experienced anaesthetists. The Crown alleged
manslaughter against both anaesthetists. Its
case against the Trust, at its highest, was that
there were failings in its system of appointment
and appraisal of the anaesthetists.
In dismissing the case, the Judge found that
any such failings by the Trust – even if proven –
were “nowhere near the sufficient gravity
required to categorise their failure as criminal”.
The Act specifically doesn’t apply to
individuals and expressly states that an
individual cannot be guilty of aiding, abetting,
counselling or procuring corporate
manslaughter. However, although the Act
abolishes the common law offence of gross
negligence manslaughter so far as it applies to
organisations, an individual can still be
prosecuted and imprisoned on conviction for
gross negligence manslaughter, as well as a
number of Health and Safety offences.
Breaches of the Act
Irrespective of the applicability of corporate
manslaughter, fatal accidents ordinarily involve
the potential breach of the Health and Safety at
Work etc Act 1974. Indeed, the Health and
Safety at Work etc Act 1974 places a number of
general duties on employers and others, the
breach of which constitutes a criminal offence.
So far as organisations are concerned, the
most significant duties are those contained in
Sections 2 and 3 of the Health and Safety at
Work etc Act 1974. Broadly speaking, Section 2
sets out the duty on employer organisations to
ensure, so far as is reasonably practicable, the
health, safety and welfare at work of all
employees. Similarly, Section 3 sets out the
duty to ensure – again, so far as is reasonably
practicable – that non-employees are not
exposed to risks to their health or safety arising
from its undertaking.
It’s important to note here that the
employer’s duties are personal and nondelegable,
meaning that employers can
delegate the performance of the duty to others,
whether employees or contractors, but not the
responsibility for its non-performance.
Failing to discharge either of these duties is a
criminal offence of ‘strict liability’ (ie requiring
no mental element such as intention,
knowledge or negligence). In addition,
following the decision of the House of Lords in
R versus Chargot (2008) 2 All ER 1077, a
person’s death is strong evidence that there
was exposure to risk such that the burden of
proof effectively shifts to the defence. The
defendant organisation has to prove that it took
all reasonably practicable steps to ensure the
Health and Safety of the deceased.
The extent of these duties is important to
emphasise. Even if an organisation has devised
a safe system of work, any failure to operate
that system, whether by an employee
(including the deceased) or a contractor, may
place the employer in breach of its duty.
Reasonably practicable steps will include not
only instructing employees on safety
procedures, but also ensuring that they’re
followed, such as by reasonable supervision
and monitoring.
In addition, Section 37 of the Health and
Safety at Work etc Act 1974 creates secondary
liability for senior officers arising out of the
organisation’s conduct. If either of the above
Health and Safety offences is committed by an
organisation with the consent or connivance of
(or is attributable to any neglect on the part of)
a senior officer of the organisation, that person
can also be prosecuted for the offence.
Finally, Section 7 places a duty on employees
to take reasonable care for the Health and
Safety of others who may be affected by their
acts or omissions. Again, by virtue of Section
33, any failure to do so is a criminal offence.
Effective from 1 February 2016, the
Sentencing Council’s definitive guidelines on
Health and Safety Offences, Corporate
Manslaughter and Food Safety and Hygiene
Offences have brought about a sea change in
penalties for corporate manslaughter and
Health and Safety offences with significantly
increased fines.
The guidelines set out a sentencing decision
sequence beginning with an assessment of
culpability and harm and proceed to consider
the financial means of the defendant and other
relevant factors. Significantly, and unlike
previous guidance, it introduces turnoverlinked
sentencing bands for fines. For example,
the bands for large organisations for corporate
manslaughter range from £4.8 million to £20
million. The bands for large organisations that
commit the most serious Health and Safety
offences range from £2.6 million to £10 million.
Guy Bastable: Head of the
Corporate Crime and Regulation
Team at BCL Solicitors LLP
Tom McNeill: Senior Associate
at BCL Solicitors LLP
“Corporate manslaughter, gross negligence manslaughter
and Health and Safety offences are all criminal offences
prosecuted in the criminal courts and which attract
significant penalties”
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