Malcolm Galloway secures no uplift in fatal Local Authority H&S prosecution
Malcolm Galloway instructed by Chris Stephens of DAC Beachcroft (Bristol) represented D&S Ltd (owner of the yard and defective forklift) and LFC Ltd (employer), in a prosecution brought by a Local Authority, following a fatal accident in 2020. Both companies had pleaded guilty to offences under s.3 and s.2 HSWA 1974 respectively, in relation to the death of a young man, ZR, who was found crushed against a wall by the defective forklift. ZR had been left for a short time alone at the storage yard, but had not been instructed to use the forklift. Both companies were owned by the same individual, EJ, the person who had left ZR alone at the yard.
After discussions with the Local Authority post-inquest, pleas by the two companies were agreed (as were the culpability and harm levels), before the summons were issued. The sentencing DJ accepted the defence submission that though these were two separate companies, the reality of the situation was the financial effect of the fine would fall on one person, EJ.
Both companies had a turnover of less than £2M and fell within the ‘micro’ category. The guideline levels were agreed as follows: – D&S Ltd: High Culpability and Harm Category 2 and LFC Ltd: Medium Culpability and Harm Category 3.
Defence submissions as to the financial reality of the companies and available mitigation were made to the court. The DJ was persuaded that there was no need to go higher than the appropriate starting point for the categorisation levels (£54,000 for D&S Ltd and £6,000 for LFC Ltd).
After mitigation and credit for plea the final sentences were: – D&S Ltd £19,000 and LFC Ltd £4,000 – making the total fine for both companies £23,000. The judge also reduced the costs application from the prosecution by 16% due to the failure to serve a proper costs schedule in time.
This case highlighted the advantage, to both the prosecution and defence, in having a sensible discussion post-inquest while matters are fresh in the minds of the parties to see if a sensible way forward can be found. This not only narrows the issues for the court, but also means a quicker resolution can take place for the defendants and family involved in the case.