Safe and sound
Earlier this year, construction haulier Mick George was convicted of a health and safety breach and fined £566,670.
As one of its tipper drivers emptied a load of soil at a site near Northampton in 2016 the vehicle came into contact with overhead power lines. Fortunately, no one was injured in the incident.
The case highlights the need for operators to comply with many regulatory regimes - not just the rules relating to operator licensing. As was the case here, contractors working on construction sites are bound by at least some of the requirements of the Construction (Design and Management) Regulations 2015 (CDM) and must ensure risk assessments and systems of work take account of this.
Breaches of other rules, such as those relating to health and safety, may need to be reported to the Office of the Traffic Commissioner (OTC) and can have an adverse effect on an operator’s licence. Knowing how to avoid or deal with an incident - and having a plan in place - is worthwhile in the event of a problem occurring.
Mick George identified in its risk assessment that it needed to provide permanent protection structures (goalposts), but only one was installed. The Health and Safety Executive’s view was that the lines should have been diverted underground before construction work commenced.
However, if this was not reasonably practicable, several goalposts should have been erected on either side of the lines to warn drivers.
Compounding the breach
In many ways identifying a risk and then failing to ensure it is adequately addressed compounds a breach. The risk of contact with overhead power lines is expressly flagged up by the CDM and the necessary control measures are spelled out.
This is perhaps why the prosecution was brought under CDM regulations, rather than the general duty of care under the Health and Safety at Work Act 1974. Operators should be aware that courts take a much harsher approach to sentencing in health and safety cases for a number of reasons.
According to professor Paul Almond of the University of Reading, the top 20 fines in 2016 amounted to more than the entirety of penalties imposed for health and safety breaches in the preceding year. This is due mainly to the health and safety sentencing guidelines that came into effect for cases heard after 1 February 2016.
However, some might wonder why, in a case such as Mick George’s where no one was injured, a fine of such magnitude could be imposed. Basically, health and safety legislation is concerned with risk, and not outcomes - although had anyone suffered serious injury, it would have been regarded as an aggravating feature, increasing the fine.
The creation of risk
The law recognises that it is often a matter of chance whether or not anyone is actually hurt and that the problem lies fundamentally with the creation of a risk that someone fails to control or mitigate. That failure is a breach and can lead to prosecution, even if no one is hurt.
The sentencing guidelines are a reflection of the upward trajectory of fines. There had been earlier guidelines and a stream of appeal court cases, all of which spoke of the need for corporate fines to be high enough to bring the health and safety compliance message home to shareholders.
Current guidelines are not simply concerned with how serious the breach is; they expressly link penalty to turnover - but not profit, although this comes into play when a court considers whether or not a company has the ability to pay the penalty. If the case is serious enough, courts will not fight shy of forcing poorly performing companies into insolvency.
Furthermore, the appeals courts have made it clear they will not overturn a fine that a company regards as too high in all but the most exceptional cases. Very few appeals against sentences since 2016 have been successful. There is no substitute for proper, timely planning of a project.
Operators need to ensure that:
. as a minimum, they are familiar with health and safety legislation that affects work operations. But more is needed, and much of the detail on how the Health and Safety Executive expects companies to operate is contained in guidance or Approved Codes of Practice. Are you aware of all the generic risks that have been identified in your area of work, and do you know how the Health and Safety Executive expects you to manage them?
. risk assessments also cater for the specifics of any given project or assignment. Is there anything that makes this particular job more taxing or complex? Has it been reflected in risk assessments and safe systems of work?
. employees and those working under the operator’s control are trained and fully briefed about specific constraints on any particular job.
If there is an accident or incident, operators should take immediate legal advice. Solicitor-client relationships benefit from legal privilege, so any documents prepared to enable a solicitor to advise a company will not be disclosable to the authorities.
This can allow for greater freedom when dealing with matters without the worry of comments made being used by enforcement officers against a company. Consider preparing an initial, legally privileged, root-cause analysis to enable a solicitor to advise on legal risks.
Bear in mind that those risks can be personal, as well as corporate, with directors facing the possibility of imprisonment for health and safety offences or director disqualification. Operators must also take advice on whether to appeal against enforcement or prohibition notices.
The latter can be as business-critical as prosecution. The implications for an O-licence, and therefore the business, could be significant, so early incident management is important across all the regulatory regimes involved.
An investigation by the Health and Safety Executive found that Mick George should have rigorously assessed the risks from overhead power lines and the haulier pleaded guilty to a breach of regulation 25(3) of the Construction (Design and Management) Regulations 2015. The law states that:
. 25(2) where there is a risk to construction work from overhead electric power cables:
(a) they must be directed away from the area of risk; or
(b) the power must be isolated and, where necessary, earthed.
. 25(3) if it is not reasonably practicable to comply with paragraph 2(a) or (b), suitable warning notices must be provided together with one of more of the following:
(a) barriers suitable for excluding work equipment that is not needed;
(b) suspended protections where vehicles need to pass beneath the cables; or
(c) measures providing an equivalent level of safety.
By Lyn Dario, partner and head of environmental and regulatory at Shulmans LLP; and Richard Wadkin, partner and head of road transport at Shulmans LLP.