As a recent case demonstrates, a fatal accident at work can lead to a seven-figure uninsurable loss and the prosecution of company directors.

?The driving motivation behind preventing such incidents should, of course, be the avoidance of a human tragedy.?Even so the two million pound fine imposed on a recycling company last month demonstrates that a fatal accident at work can lead to a huge uninsurable loss for a company.?In this case it also led to the prosecution of two company directors and the health and safety manager.?Corporate Manslaughter laws exists to punish corporations for avoidable accidental deaths at work.?As this and similar cases demonstrate, whilst the initial focus is on corporate failure it inevitably turns to the culpability of individual senior staff.?Before looking more closely at the case it is worth exploring the law itself which was brought onto the statute books in 2008.

?The Corporate Manslaughter and Corporate Homicide Act facilitates the prosecution of a company following a fatality.?(The Corporate Homicide Act is the Scottish law).?An offence will have been committed if the way in which the company’s activities are managed causes a person’s death and amounts to a gross breach of negligence of a relevant duty owed by the organisation to the individual.?It does not define what is meant by ‘management failure’ but can be broadly interpreted as systemic failures where standards have fallen far below what can reasonably be expected of an organisation in the circumstances.?Once the case of ‘management failure’ has been established it is a natural extension of process to explore which individual managers failed and how.?This opens the way for prosecution of individuals for Manslaughter by Gross Negligence or offences under the Health and Safety at Work Act (HASAWA).

?In this particular case, a metal recycling company, Altrude Ltd, failed to prevent a worker performing a maintenance function close to dangerous machinery.?The 34-year-old worker sustained serious head injuries and was pronounced dead at the scene.?In essence, the machine should have been switched off before workers performed any cleaning or maintenance.?Alutrade had been warned previously about the lack of lockable gates to prevent access to the machine. The firm had installed gates but, at the time of the victim’s death, they were damaged. ?The HSE inspector confirmed that fixing the gate would have been straightforward and inexpensive, but a culture existed in which management regularly turned a blind eye to workers taking dangerous short cuts.

?Potentially dangerous plant either static or moving is a feature of event venues and events in particular during event construction.?Event safety audits frequently highlight circumstances where pedestrian workers come into close proximity to dangerous moving machinery or worse, hazardous areas which are not secure from trespass by pedestrians not authorised to be in those areas.?In some cases, it is even possible for pedestrians to walk off the street into dangerous loading and unloading areas.?Knowing that visitors to venues frequently use fire exits to access hazardous external loading areas to smoke and failing to act to prevent it is analogous to the case in question here.

?Fines are based on turnover, not profit.?In terms of the sentence, Altrude Ltd would have been treated as a ‘medium organisation’ (￡10-50 million turnover) under the Definitive Guideline for sentencing in corporate manslaughter offences.?The offence itself, in terms of category, is determined by the following factors:

?·??????How foreseeable was serious injury?

·??????How far short of the appropriate standard did the offender fall?

·??????How common is this kind of breach in this organisation?

·??????Was there more than one death, or a high risk of further death, or serious personal injury in addition to death?

?It is reasonable to assume that the Judge, in this case, decided that the case was in the highest ‘Category A’ offence. ?He is likely to have started at about the recommended starting point of ￡3 million and then given credit for the guilty plea and other mitigating factors, arriving at the fine of ￡2 million.’?Alutrade was ordered to pay ￡105,514 costs on top of its ￡2 million fine.

?Many event companies would easily qualify for the ‘large organisation’ (more than ￡50 million turnover) category which means that a similar incident would result in a much larger fine – with a starting point of ￡7.5 million (potentially rising up to ￡20 million) for a comparable offence.?This can be mitigated downwards, for example for full cooperation and an early guilty plea.?For a lower culpability Category B offence the starting point for the fine would be ￡5 million.

?The CPS initially brought charges of Manslaughter by Gross Negligence, (which potentially carries a life sentence of 18 years), against the MD, a director and the health and safety manager, but ultimately, they admitted breaching section 2(1) of HASAWA by virtue of section 37 which facilitates the prosecution of senior staff for ‘consent’, ’neglect’ or ‘connivance’. ?Each was fined and ordered to pay costs.?They were lucky to be offered the plea.?In 2020 a company director was jailed for four years when a warehouseman was crushed by a forklift truck.?In 2018 two fairground workers were found guilty of manslaughter by gross negligence and jailed for three years after a bouncy castle blew away in high winds with a seven-year-old girl still inside. ?Whilst a fine, in the circumstances, might seem a lucky escape, the reality is that those individuals will now have a criminal record which renders them virtually unemployable since they would fail even the most cursory pre-employment check.?Even social activities like volunteering to help out with school sports would fail a vetting check.

?It is very rare for the health and safety manager to be singled out for prosecution.?Health and safety staff are usually seen as advisors.?Health and safety staff advise, managers decide.?In other words, line managers are free to decide to what extent to act on that advice and must be allowed to make business decisions based on what is reasonably practicable balancing the risk against the costs of controls.?In the rare cases that health and safety managers are liable it is usually because they have either acted outside their competence i.e., given advice which they were not competent to give, or manifestly failed to give advice when it was warranted.?A health and safety manager who acts in good faith normally has little to fear from legal process.

?In safety terms, the events industry is almost unrecognisable from 20 years ago when, following a string of serious accidents, some fatal, it began to get its act together.?Since that time, the law of Corporate Manslaughter has been introduced, and the sentences for health and safety offences have increased exponentially depending on the circumstances.?The ￡100,000 fine meted out to Earls Court in 2003 for the death of a rigger who fell, would today would merit a starting point of ￡5 to ￡7.5 million before mitigation factors were brought into account.?This considerably alters the ‘reasonably practicable’ computation at board level.?The prospect of such eye watering punitive sanctions helps to drive up investment in health and safety and with it the corporate awareness of the need for professional safety management.?That need has been met by a new generation of event safety professionals who are vastly better trained and qualified than previously when ‘qualification’ was often just a willingness to do the job.?We must not, however be complacent.?Event companies may be better intentioned than they were 20 years ago but the pandemic has put a huge pressure on budgets and we have lost many of our qualified event safety professionals to other industries and retirement.?It is right that safety directors should have to fight for resources and justify expenditure like any other director and cases like this add weight to their argument.?When balancing risk against cost, the manslaughter laws and the sentencing guidelines for such offenses provide a powerful argument to ensure that these risks are properly controlled primarily to avoid tragic loss but also a significant financial loss and the prosecution of senior staff.