Director acquitted and HSE’s costs halved:
Malcolm Galloway, instructed by Richard Ottley of DAC Beachcroft (Bristol), secures Directors acquittal. ECL, a construction company and its owner and director AC were prosecuted by the HSE after TC, a 16 year old boy on work experience, was seriously injured after a tractor he was driving overturned and he was seriously crushed.
TC’s father was a close friend of AC and had asked him to provide his son with work experience during the holidays. AC agreed to ‘do him a favour’ and paid TC a small wage for work experience observing the company’s fitters repairing company vehicles. The construction company had not previously employed young people and notwithstanding it had a full suite of appropriate RAMS for its usual work, it did not undertake a specific ‘young person’ risk assessment for TC, nor was a specific person allocated by AC to have supervision and responsibility for TC in the workplace. TC was however supervised by the individual fitters depending on what work they had. During the work experience, TC took it upon himself to take a tractor, without permission, to dispose of some waste and when he was driving the tractor it overturned causing extensive crushing injuries to TC.
The HSE brought a prosecution against ECL under s.2 HSWA, and a s.37 HSWA charge against the director AC. The company offered a plea in writing to the HSE before the first hearing at the magistrates court on the basis the HSE did not proceed against AC. At that stage the HSE refused to drop the case against AC and both defendants indicated not guilty pleas in the magistrates court and elected Crown Court trial. On the day of the PTPH at Southampton Crown Court, the HSE changed its position and accepted the plea from the company and offered no evidence against the director. The case was adjourned for sentence.
Under the Guideline ECL was a medium sized company. For sentence the HSE submitted the company’s culpability was high and the harm as level 3 (medium likelihood of level B harm), with an uplift for the injury to TC. The HSE also asked for full costs in the region of £20,000. The defence submitted medium culpability and harm category 3 (low likelihood of level A harm) with any uplift being restricted to within the category range as level A harm did not result. It was further submitted by the defence that there had been a clear and unambiguous offer of the plea in the magistrates court and the company should receive full credit for its plea and further, the HSE’s costs should be capped at the magistrates court amounts.
In his sentencing remarks, HHJ Henry accepted the defence submissions on culpability, harm, costs and credit. He agreed that this was an unusual, if not unique case, and accepted the substantial mitigation advanced on behalf of the company. Importantly, when sentencing ECL to a fine of £50,000 and reducing the HSE’s costs by over 50% to £9,000, HHJ Henry accepted that ECL had made a clear offer of the plea in the magistrates court and there was no proper explanation as to why the HSE had not accepted the plea in the magistrates court.