The Court of Appeal has rejected a challenge by a transport firm against its six-figure fine for a serious but non-fatal injury, concluding that the penalty was “stern” but not “manifestly excessive.”
Courier company Tuffnells Parcels Express Ltd was fined £150,000, plus £19,000 in costs, after an employee was seriously injured when his skull was crushed by a reversing lorry at the company’s depot in West Horndon, in Essex.
On 23 March 2010, Simon Mason was working on a night shift as a warehouse porter, waiting for an articulated HGV trailer to reverse into a loading bay before he could unload its contents.
Believing that the trailer had stopped reversing and noticing that it was not in line with the bay, he put his head round the rear of the vehicle to shout instructions to the driver. At this precise moment, the trailer backed up further and crushed his head against the wall. He was off work for nearly a year.
Tuffnells was prosecuted last year after a HSE investigation revealed that the shunter vehicle was defective and a risk assessment undertaken eight months prior to the incident had failed to identify a safe system of work for reversing vehicles at night. Inspectors also found that induction and health and safety training were inadequate and the condition of the yard and loading bay was poor.
They concluded that there had been widespread failure in the company’s health and safety procedures since 2007. The original sentencing judge agreed, stating: “[T]here were, I am entirely satisfied, significant and systematic failures to meet the standards on the part of Tuffnells at West Horndon depot.”
Noting that the company’s turnover in 2010 had been £100m, or thereabouts, and its operating profit had been £7.7m, and considering the seriousness of the failures, the judge decided an appropriate fine was £150,000. The equivalent trial penalty would have been £225,000 – 2.9% of Tuffnell’s operating profit for 2010.
The company appealed against the fine, arguing that, in weighing up the aggravating and mitigating factors, the judge reached a figure that was manifestly excessive.
In a ruling heard last month that has just been published, Lord Justice Pitchford, Mr Justice Underhill and Mr Justice Lindblom dismissed the appeal, concluding that the sentencing judge had made no error in weighing up the relevant factors.
They also did not accept the suggestion that the judge should not have placed weight on those failures that were not causative of the accident, stating: “The offence is comprised not merely by failures causative of an accident, although that is an aggravating feature, but by the careless running of risk.”
While recognising that the Sentencing Guidelines Council’s guidelines on ‘Corporate manslaughter and health and safety offences causing death’ were not applicable, the appeal judges did note that the aggravating and mitigating factors in the case did apply “by analogy.”
They also agreed with the sentencing judge that the risk of serious injury was “not just foreseeable but obvious,” and that the company fell “far below” their duty of care. Said the judges: “Responsibility for the breach reached at least regional level and, in our view, permeated head office, where ultimate responsibility for implementation of an appropriate health and safety policy rested.”
Source: SHP Online
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