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Dominic Kay KC represents Yorkshire Water

On 18th September 2018, Dominic Kay KC instructed by Simon Belfield at DWF represented Yorkshire Water at a sentencing hearing before the Leeds Crown Court. YW, a utility company with a turnover in excess of £1bn, had pleaded guilty at an earlier hearing to a breach of s.2 of HSWA 1974 in respect of an accident in July 2015 in which one of its employees died as a result of burns sustained when he became engulfed in flames as a consequence of using an angle grinder in an oxygen enriched atmosphere. Although it was accepted by the HSE the deceased had taken it upon himself to use the angle grinder and had both ignored two warning alarms and neglected to use his own personal gas monitor, the case was put by the Crown on the basis YW had failed to take sufficient steps following an earlier ‘near-miss’ involving oxygen enrichment on the same site and that the company’s systems and procedures had not been followed prior to the commencement of the work.

The HSE contended (a) culpability was high, (b) harm fell into category 1 on the basis there was a high likelihood of Level A harm arising and the actual harm was more than minimally caused by the Defendant’s breach, (c) the category range was therefore £1.5m to £6m, (d) a previous conviction for a health and safety fatality was an aggravating feature which together with (e) the fact the turnover greatly exceeded £50m meant the starting point should be adjusted upwards.

The Court accepted that the company’s response to the earlier near miss had been a proper investigation and accepted the defence arguments that (a) despite the earlier near-miss, culpability was properly categorised as medium on the basis the company had proper systems in place (albeit they were not implemented on the day) and had acted in good faith following the earlier incident, (b) although there was a risk of Level A harm, the likelihood of that harm arising was low on the basis it would require a sequence of unlikely events to transpire, and therefore, even taking into account the actual harm caused, the appropriate harm category was 2, (c) the category range was therefore substantially lower at £300,000 to £1.5m, (d) the age of the previous conviction and the systems introduced after that accident meant there was no aggravation and no upward adjustment was necessary and (e) although it was agreed to be a ‘very large’ organisation, a starting point towards the upper end of the category range would produce a proportionate sentence such that the Court need not move outside the range.

Accordingly the Judge took a starting point of £1.2m, made a downward adjustment of £100,000 to reflect mitigating features (including cooperation beyond that to be expected) and then awarded a full one-third discount to reflect the early guilty plea. The fine imposed was therefore £733,000. Costs were agreed in the sum of approximately £19,000.

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