In this article, specialist Health and Safety Solicitor Sue Dearden considers:
- the circumstances leading to the imposition of a record health and safety fine of £6.5million on WH Malcolm Limited last week in the Northampton Crown Court following a fatal accident in Daventry, and
- the lessons to be learned by property-owning employers.
Background
On 27th June 2017, an 11-year-old boy, together with a number of friends, climbed over a wooden fence next to a bridle path in Daventry and accessed the headshunt area of a rail depot. Once there, he climbed to the top of a stationary freight wagon where he was electrocuted when he came into contact with a 25,000 volt overhead line.
The logistics company WH Malcolm Limited, which operated the depot were found guilty of two offences on Friday 30th July 2021 after a 4-week trial:
- Breach of the statutory duty owed by all employers to conduct their business in such a way as to ensure so far as is reasonably practicable, that persons not in their employment but who may be affected by it, are not thereby exposed to risks to their health and safety (section 3 Health and Safety at Work etc Act 1974).
- Breach of the regulatory duty imposed on all employers to make a suitable and sufficient assessment of the risks to the health and safety of staff AND to those not in their employment but arising out of or in connection with the conduct by them of their business (Regulation 3 Management of Health and Safety at Work Regulations 1999). For those with 5 or more employees, the significant findings of that risk assessment must be in writing.
Sentencing
Once found guilty, the Court was obliged to apply the Sentencing Council’s Guideline[1] to sentencing. The Defendant’s turnover was in excess of £200m annually and so put it in the Large Organisation sentencing table. There are other tables that apply to different sizes of organisations depending on annual turnover.
Culpability was assessed as ’High’, and the Court assessed the likelihood of fatal injury to also be ‘High’. That put the starting point for the fine in the Sentencing Table at £2.4m (in a bracket of between £1.5m and £6m).
Bearing in mind the fact that children were exposed to the risk and that the offence had caused the death of a child, and also caused psychological injury to 3 young witnesses, the Judge pushed the sentence up a bracket in the sentencing table. This increased the starting point for the fine to £4m (in a bracket of between £2.6m and £10m). The fine was then increased from the starting point to reflect the aggravating features, in particular, that:
- Four years before the accident, the Defendant’s insurers had warned about trespassing issues in the depot and had recommended carrying out a risk assessment and installing fencing.
- Two years before the accident another trespassing incident led to a fence being installed on one side of the site – but not the other.
- The evidence showed that freight wagons were often left for long periods under the electrified lines. Those electrified lines were inaccessible without the wagons being in position.
- The day before the accident, children were reported by a train driver as having been seen playing football in the headshunt area.
Even taking account of remedial work carried out post-accident, which was apparently beyond the minimum required, the Judge determined that a fine of £6.5m was appropriate.
Commentary
Had the Defendant, in this case, pleaded guilty, then under the Reduction in Sentence for Guilty Plea Definitive Guideline, a discount would have been applied, which would have reduced this fine potentially to just over £4.3m.
In September 2016 following the Smiler rollercoaster crash, Merlin was able to reduce its record fine of £7.5m down to £5m because of the early guilty plea discount. Whilst potential sentence should not influence plea – commercially, it is bound to have some influence in many cases with fines (and savings) at this level in the issue.
Although the fine imposed was unusually high for a health and safety offence, this type of incident, regrettably, is not. There had been at least two previous similar incidents involving another operator. In June 2014 a 13-year old received life-changing injuries after receiving an electric shock from a 25,000 volt overhead line in another freight yard leading to a fine on conviction in Newcastle in October 2018, of £2.7m.
And just 26 days before the incident in Daventry, on 1st June 2017, another 13 years old also suffered life-changing injuries when again, the boy climbed to the top of a train and reached the 25,000-volt lines. It was reported in that case that 35 prior incidents of trespass to that site were recorded in the 4 years before that accident. The fine imposed on conviction in that case in January 2020 was £1.2m.
Whilst these incidents and the particular risks concerned rail depots, there are lessons here for all employers whose premises have high hazards, particularly those that might be attractive to youngsters. That may for example be a construction site with its scaffolding and chunky machinery, a demolition site, a quarry with pools that seem particularly inviting on hot days, a landmark building that attracts urban climbers, or even just a yard with stored material, stacked and ripe for climbing. Trespass is an issue for many types of premises and their owners. Particularly where children are put at risk, the fact that the injured person was a trespasser doesn’t really help with a defence or mitigation unless the owner can prove that they had assessed the risk and taken all reasonably practicable steps to mitigate it.
Consider:
1. Do you have a risk assessment that specifically considers trespassers? What might be attractive to trespassers about your site and what aspects of your premises might prove a risk to them? HSG151 provides guidance on this area for the construction industry and a safety alert issued by the HSE in 2018 aimed at scaffolders is also helpful for prompting the questions to ask when assessing these risks – the principles can be extrapolated from this guidance to a whole range of sites, not just to construction. You need to have a risk assessment that identifies the hazards, identifies those foreseeably at risk (including trespassers), and identifies your risk control measures.
2. Can you eliminate the hazard? The obligation to eliminate the hazard is higher, the greater the likelihood that someone will encounter it and the greater the harm that might be caused. The common hazard with the cases mentioned has been the high voltage cables that cannot be neutralised which means (in this instance) the hazard cannot be eliminated. Therefore, the risk of contact with the lines must be eliminated if possible through the controls in place. The stationary wagons which provided access to those potentially lethal cables when climbed could have been moved which would have effectively eliminated the risk of contact with the hazard. In other industries removal of ladders as an example, might be a similar way to eliminate access to some hazards.
3. If you cannot eliminate the hazard or the risk of coming into contact with the hazard, you need to consider what other controls you could introduce to prevent or reduce the risk of anyone being injured. E.g., secure fencing to prevent/deter access; a secured cover over a well; ladder guards if ladders are fixed in place. In some cases, anti-climb paint (which doesn’t dry so remains slippery and difficult to climb and which doesn’t wash out of clothing) might be sufficient. There are a range of controls to think about when balancing the hazard and the risk: the greater the hazard and the more serious the potential injury, the greater the level of effort/ spend will be judged as having been a defensible reasonably practicable control measure.
4. If these physical, collective control measures are not going to eliminate the risk, then you must consider what other controls can be put in place to deter someone from encountering it – warning signage for example, or sensors/CCTV/alarms which facilitate an early alert of unauthorised access.
Conclusion
According to statistics released last month by the HSE, 106 members of the public were killed 2019/2020 in the UK as a result of a work-related incident. This figure dropped to 60 in the year 2020/21 most probably as a result of lockdown measures which limited movement as figures from previous years is more in line with 2019/20. Nonfatal injuries involving members of the public are also prevalent in the industry. Some of these will have resulted from trespassing. Don’t forget to identify and mitigate risks to members of the public as well as to your employees – and do have regard both to invited and uninvited guests.
The Government completed a consultation on new legislation in March 2021, to introduce criminal offences against trespassers (rather than the trespassed) but particularly aimed at unauthorised encampments. Whilst the proposed change to legislation has yet to be passed into law, as currently proposed this change is set to introduce fines up to £2,500 and prison terms of up to 3 months for anyone being on land without the owner’s permission.
Whilst that may deter some trespassers – it is unlikely to pervade the consciousness of young people to have any real effect on their behaviour. Children are and should be expected by property owners to be less careful and mindful of risk than adults. The best way for property owners to protect themselves against prosecution as a result of risks to or injury of trespassers in the circumstances is to ensure that the hazards are identified and the risks properly managed.
Don’t forget to review your risk assessment if the hazard changes or if there are any reports or instances of actual or attempted trespass and be careful not to put cost-saving ahead of reasonable measures which eliminate or mitigate the risk. After all, had WH Malcolm Ltd heeded previous issues it could have paid just £4,000 for appropriate fencing – instead of a £6.5m fine plus prosecution costs following the probably avoidable fatality of an 11-year-old boy.
If you have any questions arising from this article or need support with your property risk assessments please contact:
[email protected] 07909 682 688
[1] Health and Safety Offences, Corporate Manslaughter and Food Safety and Hygiene Offences Definitive Guideline effective from February 2016 (as amended)
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