Duty of Care/Legal Cases
Corporate Manslaugher Act

Courts have never been able to secure the conviction of any company for corporate manslaughter, other than high profile incidents where it seemed appropriate, the stumbling block had been the need for the courts to convict an individual in charge of the company's activities for gross negligence manslaughter before also being able to convict the company.

That has now changed, on 6 April 2008, the Corporate Manslaughter and Corporate Homicide Act 2007 finally came into effect.

Although watered down considerably from the original proposals, the new offence of corporate manslaughter is thought to constitute a workable solution for the most serious health and safety offences, and will result in substantial fines on conviction, and, possibly. publicity and or remedial orders.

Organisations that cause major disasters, particularly involving the public, are the most likely targets. But the offence is not reserved exclusively for such cases and it is likely it will be used far more widely.

Importantly, the offence has not been extended to apply to individuals, although they remain laible to prosecution under the existing common law manslaughter laws.

Successful prosecution under the new law will largely revolve around whether the death resulted from acts or omissions which constitute 'senior management failure'.

The failure must be 'gross' and this will be up to a jury to decide. It must also consider how much of a risk of death the breach posed and whether any specific cultural issues, such as attitudes and accepted practices within the organisation, contributed to it.

The cost of this investigation will be substantial, so companies should review their business risk exposure and insurance policy coverage to ensure they are protected.

Although the new Corporate Manslaughter and Corporate Homicide Act 2007 imposes no limit on the fine imposed in the event that a company entity is convicted, it doesnt change the position of individual directors in the event of the death of an employee or a member of the public. They are still liable to be prosecuted under the existing health and safety legislation - and face imprisonment, a hefty fine or both.

There is a common misconception that Employer's and Public Liability insurance policies provide protection for a company, its directors ands senior managers in such circumstances.

Whilst these will ensure protection if negligence is proven in a personal injury claim and compensation awarded, these policies offer no recourse in the event of a prosecution under health and safety legislation.

Health & Safety (Offences) Bill

New legislation, the Health and Safety Offences Act 2008, which will increase penalties and provide courts with greater sentencing powers for those who flout health and safety legislation.

The Act raises the maximum penalties that can be imposed for breaching health and safety regulations in the lower courts from £5,000 to £20,000 and the range of offences for which an individual can be imprisoned has also been broadened.

“It is generally accepted that the level of fines for some health and safety offences is too low. These changes will ensure that sentences can now be more easily set at a level to deter businesses that do not take their health and safety management responsibilities seriously and further encourage employers and others to comply with the law.

“Furthermore, by extending the £20,000 maximum fine to the lower courts and making imprisonment an option, more cases will be resolved in the lower courts and justice will be faster, less costly and more efficient.

“Jail sentences for particularly blameworthy health and safety offences committed by individuals, can now be imposed reflecting the severity of such crimes, whereas there were more limited options in the past.

The Act amends Section 33 of the Health and Safety at Work etc Act 1974, and raises the maximum penalties available to the courts in respect of certain health and safety offences. It received Royal Assent on 16 October 2008 and will come into force in three months time, in January 2009

Recent Legal Cases
Fine for Legionnaires' cider firm [July 2008]

Cider maker HP Bulmer and its water treatment contractor Nalco have each been fined £300,000 over a fatal outbreak of Legionnaires' disease

Two people died and more than 20 others fell ill in Hereford in 2003, the city's crown court heard.

Judge Alistair McCreath said a failure to clean two cooling towers adequately at Bulmer's mill in Plough Lane in 2003 was "almost beyond belief".

The two firms had admitted breaching the Health and Safety at Work Act. They were also ordered to pay more than £50,000 each in prosecution costs. Nalco, based in Northwich, Cheshire, and the cider firm pleaded guilty last year to breaching the Health and Safety at Work Act by failing to ensure the safety of persons not in their employment.

Of the 28 cases, the age range of the victims was between 36 and 91 and 21 of the victims were men

September 2006 - Architect found "Not Guilty"

Architect for Barrow Borough Council, Gillian Beckingham has been found not guilty of manslaughter following the death of seven people after an outbreak of Legionnaire's Disease in Barrow in Furness in 2002. Both Beckingham and her employer were found guilty under the Health & Safety at Work Act 1974, however

The Council was fined £ 125,000 and ordered to pay costs of £ 90,000 whilst Beckingham was fined £ 15,000 personally. The verdicts come after the first manslaughter trial collapsed when the jury failed to reach a verdict. The judge was critical of the council and described its failings as "grave in the extreme" He said that had it been a commercial organisation, the fine would have been at least £ 1m, but accepted the fine will have to be paid from public finances.

The case originated following a change in maintenance contractors at a council run facility called Forum 28. This left the buildings cooling tower without regular water testing for the presence of legionella. Seven people with an additional 172 confirmed cases of Legionnaire' Disease following the outbreak.

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