LTB449/17 Health & Safety Reports From The Courts And New Sentencing Guidance 18 Months On:

No. 449/2017

4 August 2017

Our Ref: C1/17

Health & Safety Reports From The Courts And New Sentencing Guidance 18 Months On:

To: All Branches

Dear Colleagues,

Find below for your interest and information a summary compilation of recent convictions for health and safety court case convictions, fines and prison sentences of companies, directors and senior managers which should serve as a stark warning to the companies, directors and managers where CWU Members work.

Last year, the UK sat up and took notice as some of the largest fines ever were issued for health and safety cases, following the introduction of new sentencing council guidelines in February 2016. These provide, for the first time, clear guidance on how all health and safety cases should be sentenced and appear finally to recognise through the UK courts that health and safety breaches should be treated as seriously as data breaches, competition breaches or financial irregularity issues. The judgements demonstrate that the UK wants to show its disapproval of serious corporate health and safety failures which lead to injury, illness and death, and a desire to deter such failures by other businesses.

Businesses who successfully focus on health, safety and wellbeing are likely to find themselves better placed to attract valuable new contracts and when seeking new business.

The new guidelines are beginning to provide a measure of the impact that corporate manslaughter and health and safety offences can have on people and the economy. The levels of these fines is also starting to reflect the economic cost to the UK of workplace illness or injury, which is reported to have been £14.1 billion in 2016.

While fines last year regularly exceeded the million-pound mark, we expect to see even larger fines in the future for businesses failing to meet their health and safety duties. Initial analysis of the types and levels of fines during 2016 also indicates that the individuals (Directors and Managers) responsible are coming under even greater scrutiny, and that higher sentences are being imposed.

A year on, the courts now have guidance setting out a step-by-step guide for sentencing both companies and individuals for health and safety and food safety offences. The new guidelines have resulted in an escalation in the level of fines being handed down by the courts. With some of the largest and most well-known UK and global businesses receiving the largest fines last year, there has been increased public interest and media attention on health and safety cases. Steered by the new sentencing guidelines to determine the size of a fine based on company turnover (as well as factors around culpability and harm risks), the courts have sent a clear message to the boardrooms and CEOs of all businesses about the importance and value of protecting human lives, and the cost of failing to do so.

Some recent reported cases from the HSE:

Director jailed for 14 months, company fined £1.9m plus £72K costs over 2 balcony fall deaths

A director has been jailed for 14 months and his company fined £1.9m after two workers fell from a balcony as they tried to haul a 115kg sofa up toa first floor luxury flat. Company director Martin Gutaj, director of the renovation firm Martinisation (London), was found guilty and convicted after he failed to undertake an adequate risk assessment and provide training to two construction workers who fell to their deaths. Martin Gutaj, 44, and his company Martinisation London Limited, were tried at the Old Bailey. Gutaj was found guilty of two criminal safety charges while Martinisation London Limited was convicted of two counts of corporate manslaughter. Earlier this month, Gutaj, 44, of Ferry Lane in Brentford, was sentenced to 14 months for each death, which will run concurrently. He was also barred from being a company director for four years. Additionally his company was found guilty of two counts of corporate manslaughter and two breaches of Section 2(1) of the Health and Safety at Work Act. The company was fined £1.2m for the two deaths and £650,000 for the HSWA breaches, all of which apply concurrently. It must also pay £72,000 costs. The court heard that on 21 November 2014, Polish nationals Tomasz Procko, 22, and Karol Symanski, 29, fell from the balcony of a luxury flat in London’s Cadogan Square, which was being refurbished by Gutaj’s company. They were among five workers using ropes to haul the sofa around 6m onto the balcony and over a balustrade, with only some Victorian railings acting as a barrier. However, the 130 year old railings gave way and the two men fell to the ground and were killed. The renovation budget for the luxury flat was £920,000 but Director Gutaj ignored advice to hire a furniture lift for £848. A decision that cost two young men their lives. Investigators found there was no work method statement, no risk assessments, no training of staff or safety information or instructions. There was also no one supervising the work. In sentencing Gutaj Judge Gordon said that “Gutaj’s motive for ignoring the warnings about the furniture lift must have been one of putting profit before worker safety”. He added: “Health and safety on building sites is not a boring technicality. It is vital to the safety of employees and others in what is inherently a dangerous environment. Those like you who are wilfully blind to the risks despite warnings have got to expect to go immediately to prison.”

Three directors jailed following fatal roof fall

Three company directors have been jailed following the death of a man who fell during a cut price roof job in Essex. Nikolai Valkov, 63, died in hospital after falling through the roof of a warehouse in Harlow on 13 April 2015. At Chelmsford Crown Court, Koseoglu Metalworks Ltd pleaded guilty to corporate manslaughter and its sole director, Kadir Kose, admitted a criminal safety offence. Ozdil Investments Ltd denied corporate manslaughter and a criminal safety offence but was convicted following a trial at Chelmsford Crown Court. Two of its directors, Firat Ozdil and Ozgur Ozdil, were convicted of a criminal safety offence. Firat Ozdil was jailed for one year, Ozgur Ozdil for 10 months and Kadir Kose for eight months. The court heard how Ozdil Investments Ltd was the owner of the warehouse, Ozdil House, where the roof needed repairs. Both the Health and Safety Executive (HSE) and Harlow District Council issued warnings to the company about the dangers involved in the repair work and specifically the need for safety measures such as netting to be put in place. Despite this, Firat Ozdil and Ozgur Ozdil paid their friend Kose to carry out the work without netting or other safety measures. The court heard Koseoglu Metalworks Ltd had no experience of roofing work and the fee paid by the Ozdils was approximately £100,000 less than a recognised roofing contractor would have charged. Kose did not carry out a risk assessment at the site and sent staff onto the roof without training. While working on the roof, Mr Valkov stepped onto a discoloured skylight and fell to his death. Luke Bulpitt, a specialist prosecutor with the Crown Prosecution Service (CPS) Special Crime and Counter Terrorism Division, said: “By ignoring the safety measures they knew were required, the Odzils and their company risked the lives of everyone working on the roof in an attempt to save money.” He added: “Faced with the evidence against him, Kose and Koseoglu Metalworks admitted their guilt but the Ozdils and their company contested the charges. However, having heard the compelling case put forward by the prosecution, the jury returned guilty verdicts.” The prosecution followed an investigation by Essex Police.

Manager Jailed for 12 Months and Company Fined £100,000 after woman was killed by falling window fram
e

A building manager has been jailed over safety failures which resulted in the death of a woman who was killed by falling window frames. Passer by Amanda Telfer, 43, died after being hit by three falling window frames as she was walking past a construction site in Hanover Square, London, on 30 August 2012. The frames had been delivered to a construction site and left leaning, unsecured against a wall. Kelvin Adsett, 64, was responsible for placement of the frames and the failure to secure them. He was sentenced to 12 months’ imprisonment at the Central Criminal Court after being found guilty of manslaughter following a trial at the Central Criminal Court IS Europe Ltd, the company which employed Adsett, was found guilty of health and safety charges. It would have been fined £100,000 but it had only £250 left in its bank account after falling dormant. Damian Lakin-Hall, 50, was the site manager employed by Westgreen Construction. He was sentenced to a six month prison sentence suspended for two years after he was found guilty of failing to take reasonable care for health and safety. Graham Partridge, London CPS reviewing lawyer, said: “If Kelvin Adsett, Damian Lakin-Hall and IS Europe had complied with their legal responsibilities, Amanda Telfer would not have died. “They were delivering and storing large, very heavy window frames and should have known that, unsecured, they presented a serious danger to the public on what was a windy day. “The CPS case was that the defendants’ conduct was so bad that those involved bore criminal responsibility for Ms Telfer’s tragic death. “We hope that these convictions will bring some sense of justice for her family.”

16 Month Prison Sentence for Unsafe gas work plumber

Gareth Scott Redford has been sentenced to serve 16 months in prison for carrying out unsafe gas work. Cambridge Crown Court heard how Mr Redford, a plumber, carried out gas work at four properties in the Cambridgeshire and Lincolnshire areas. Concerns were raised by home owners of each property who made complaints to Gas Safe Register. An investigation by the Health and Safety Executive (HSE) and Cambridgeshire County Council Trading Standards (CCCTS) found Mr Redford carried out the gas work at the properties when he was unregistered. The work he conducted at several properties was deemed unsafe, putting homeowners and residents at risk of harm. Gareth Scott Redford of Blaydon Place, Sutton, Cambridgeshire pleaded guilty to 14 breaches under the Gas Safety (Installation and Use) Regulations 1998 Consumer Protection from Unfair Trading Regulations 2008 and the Fraud Act 2006, and he was sentenced to 16 months’ imprisonment. Speaking after the case HSE inspector Graeme Warden said: “Mr Redford put the homeowners and residents at risk of harm, when he conducted gas work while unregistered. “Both CCCTS and HSE worked closely and collaboratively in the investigative stages of this case and throughout to get this result.”

£2 million fine after worker killed by falling plastic bales

A worker died when plastic bales fell on top of him while he was cleaning a storage yard. Father of one Jacek Adamowicz, 29, was cleaning the yard on 4 February 2015 when a number of plastic bales weighing 703kg fell towards him trapping him against the ground. Manchester Crown Court was told that Hitchen Foods, owned by the Bakkavor Group,had failed to consider and properly plan the stacking and storage of the bales. A HSE investigation revealed unsafe stacking of plastic bales. Bakkavor Foods Limited had failed to implement properly planned safe systems of work for their employees, who were exposed during the stacking of the bales. There was also no formal training in stacking bales and lack of monitoring in the bale area. Bakkavor Foods Limited Foods of Dobson Park Way, Wigan plead guilty to breaches of Section 2 (1) of the Health and Safety at Work at 1974 and was fined £2million with £32,595.10 costs. Speaking after the hearing HSE inspector Ian Betley said: “Bakkavor Foods Limited fell far short of the required standard expected. Not only should proper planning have been carried out in relation to the storage and stacking of waste bales, but also a system of work subsequently put in place to mitigate those risks. The company failed on both of these counts with devastating consequences.”

£850,000 Fine for companies following multiple deaths on Norfolk excavation site and Director gets Suspended Jail Sentence Plus £7,500 Fine and 200 Hours Community Service:

Two companies have been fined a total of £700,000 and a director has received a suspended prison sentence following the fatal crushing of four workers at an excavation site in Norfolk. The Court at the Old Bailey heard that on 21 January 2011 the men were constructing a large steel structure as part of the foundation for a large Pressure Test Facility (PTF) at Claxton Engineering Services in Great Yarmouth. The structure, which weighed several tonnes, collapsed on top of the group. A large-scale emergency response took place to try and rescue the trapped workers. Adam Taylor, 28, 41- year-old Peter Johnson and brothers Thomas Hazelton, 26 and Daniel Hazelton, 30, were all pronounced dead at the scene. The excavation for the horizontal PTF was more than 23m long, 3m wide and 2m deep. The horizontal steel cage being constructed would have weighed about 32 tonnes when completed. The group were working for Hazegood Construction Ltd. Daniel Hazelton was an employee, while the other three were self-employed contractors. Encompass Project Management Ltd was the principal contractor, with Hazegood operating as a contractor. A Health and Safety Executive (HSE) investigation found serious flaws in the planning, management and monitoring of this complex project on the part of Claxton as well as Encompass and its company director David Groucott. Claxton Engineering Services Ltd of Ferryside, Ferry Road, Norwich pleaded guilty to breaching Regulation 9(1)(a) of the Construction (Design and Management) Regulations 2007. The company was fined £500,000 and ordered to pay costs of £100,000. Encompass Project Management Ltd of The Gables, Old Market Street, Thetford, Norfolk pleaded guilty to breaching Section 3 (1) of the Health and Safety at Work etc Act 1974. It was fined £200,000 and ordered to pay costs of £50,000. David Groucott of Diss, Norfolk, pleaded guilty to breaching Section 37(1) of Health and Safety at Work Act. He was sentenced to a seven and a half month custodial sentence, suspended for two years. He was ordered to complete 200 hours of unpaid community work within 12 months, and also ordered to pay costs of £7,500. Charges against Hazegood Construction Ltd were ordered to lie on file. HSE Construction Division Head of Operations Annette Hall said: “Those sentenced today failed the four workers who died. They didn’t carry out their legal duties, leading to the events which caused their deaths. “This was a long term, large scale and complex civil engineering project which needed to be planned, designed, managed and monitored effectively. The tragedy here is that, in the months leading up to the accident, any one of these parties could and should have asked basic questions about building the structure safely. Such an intervention could have avoided the tragic outcome of this entirely preventable accident.”

£765,000 fine for reckless’ asbestos failure

Barroerock Construction Limited has been fined after repeated asbestos failings. Canterbury Crown Court heard how the Health and Safety Executive (HSE) carried out two investigations of working practices of the site in 2013 and 2014 while Barroerock were converting into flats a former nine storey office building in Ashford, Kent, which was known to contain asbestos. The first investigation arose from a routine inspection during one of HSE’s refurbishment campaigns. The Court was told that while a refurbishment and demolition (R&D) survey
had been carried out the company had failed to act upon it. This resulted in up to 40 workers being exposed to asbestos during the early demolition phase of the project. The second investigation culminated in a visit to the site in June 2014 following complaints being made about the health and safety practices at the site. It was found that despite engaging a licensed asbestos contractor to remove the remaining asbestos materials, dangerous practices were continuing. In addition, the company was unable to provide documentation to show that asbestos materials identified in the survey had been correctly removed. When the work on site was halted for the second time about 160 people were working inside the building. It was found in both HSE investigations that these incidents could have been prevented if Barroerock ensured they had effective management controls in place to avoid the risk of exposure to asbestos. Barroerock Construction Limited of Langley House Park Road, East Finchley, London, who had pleaded guilty to two offences of breaching Regulation 22 (1) (a) of the Construction Design and Management Regulations 2007 at an earlier hearing, has been fined £750,000 and ordered to pay costs of £14,874.68. Speaking after the hearing HSE inspector Melvyn Stancliffe said: “The company’s failings in this case has put many workers at risk to the exposure of asbestos. “It was clear there was an endemic failure to effectively manage the construction work on the site in a way which ensured that asbestos materials were not disturbed until removed under appropriate conditions. Failing to prevent the breathing in of asbestos fibres on the site is reckless.”

£701,000 fines for DHL and JCB after worker struck by overturning trolley and hydraulic rams

Two companies have been fined after a worker was seriously injured by a trolley carrying hydraulic rams. Stafford Crown Court heard how an employee of DHL Services Limited (DHL) was auditing in-coming deliveries of equipment in an outside yard at JCB World Headquarters when he was struck from behind by falling machinery. At the time of the incident the machinery was being towed by an electric tug and weighed approximately 770kg. The trolley toppled on its side trapping the DHL employee between it and a stillage. He suffered multiple serious injuries including fractures and internal injuries. An investigation by the Health and Safety Executive (HSE) into the incident which occurred on 16 October 2013 found there were a number of safety failures related to this auditing activity and the segregation between employees and vehicles using this area, leading to an unsafe system of work. In addition to the injured worker, the investigation also identified that employees of JC Bamford Excavators Ltd accessed this area as pedestrians when vehicles were operating. DHL Services Limited, of Midsummer Boulevard, Central, Milton Keynes, pleaded guilty to breaching Section 2(1) of the Health and Safety at Work etc. Act 1974, and was fined £266,000 and ordered to pay costs of £23,370.22. J C Bamford Excavators Limited, of Lakeside Works, Rocester, Uttoxeter, Staffordshire, pleaded guilty to breaching Section 2(1) and Section 3(1) of the Health and Safety at Work etc. Act 1974, and was fined £375,000 and ordered to pay costs of £37,235.42. HSE Inspector David Brassington said after the hearing: “The dangers of failing to provide effective segregation between pedestrians and vehicles are well known. Bothof these companies were well versed in transport risk management and both fell well below the required standard in ensuring that such risks were effectively managed in this area.” “These failings allowed a pedestrian worker into a busy area where vehicles were coming and going and as a result the worker sustained serious injuries from which he has still not recovered.”

£495,000 fine for Company after worker’s death

ATE Truck and Trailer Sales Ltd, a company that buys, refurbishes and sells Heavy Goods Vehicles (HGVs) and trailers has been sentenced after the death of 63-year-old worker William Price. Wolverhampton Crown Court heard that on 21 February 2013 Mr Price suffered fatal head injuries when he was struck by the roof of a trailer he was dismantling at the Marston Industrial Estate site. An investigation by the Health and Safety Executive (HSE) found ATE had undertaken this task before by its own employees and had an established method in place. However, it failed to properly consider the risks involved in this work and did not provide Mr Price with any information in relation to his safety when stripping down’ the trailers. ATE Truck and Trailer Services Ltd of Boundary Industrial Estate, Stafford Road, Wolverhampton pleaded guilty to breaching Regulation 3 of the Management of Health and Safety at Work Regulations 1999. The company has been fined £475,000 and ordered to pay costs of £20,000.

Speaking after the hearing HSE inspector Judith Botwood said: “This tragic accident was preventable had all parties considered the risks involved and taken appropriate measures to reduce that risk.”

£400,000 fine for the Co-Op over the death of a man who slipped on water leaking from a faulty sandwich chiller

Stanley May, 74, died two days after hitting his head on the floor in the Truro branch of the supermarket in July 2015. Truro Crown Court heard the chiller had been faulty for 44 hours but customers could still enter the wet area. The Co-op previously pleaded guilty to a health and safety offence of failing to protect customers. Engineers had tried to fix the chiller two days earlier, but it had continued to leak on to the vinyl floor. A yellow wet floor’ sign had been used, but the affected area extended beyond it. Judge Simon Carr said what happened was “so easily avoidable”, adding: “The company tried to address the problem but did so inadequately.” Mr May had three children and six grandchildren and was described as “an exceptional man in good health” by the judge. The former chairman of St Enoder Parish Council, he was a member of the Co-op and used to visit their shops most days. Speaking outside the court, Mr May’s daughter Victoria Parsons said: “We’d just like everybody to learn that this was so easily avoided; if they had kept an eye on that water my dad would still be alive today.” The defence read a statement from Christopher Whitfield, retail and logistics director at the Co-operative Group, in which he said: “He (Mr May) should have been kept safe while walking in our store.” “It is a matter of utmost regret that he was not. “The court awarded £50,000 in costs to Cornwall Council, which brought the prosecution.

£118,000 fine for Company and Director Fined £7,000 after worker breaks back in roof fall

Eco NRG Solutions Ltd and its director Jon Luke Antoniou have been fined after a worker suffered serious injuries in fall through a roof at a farm in Cornwall. Taunton Magistrates Court heard how Lewis Harding, 28, had been fitting solar panels on a fragile roof at Venn Farm on 19 May 2015. He fell more than three metres through a fragile skylight and broke his back in three places. An investigation by the Health and Safety Executive (HSE) found the company failed to take adequate precautions to prevent workers falling from height. There was no edge protection, under-roof netting or boarding provided on site. The company instead relied on an ineffective use of harnesses. Unsafe working had been taking place for months before the incident and then continued for months afterwards. HSE’s investigation found that the bad practice was attributable to the neglect of director Jon Antoniou. Eco NRG Solutions Ltd pleaded guilty to two criminal safety offences and was fined £115,000 and ordered to pay costs of £2,879.60. Jon Luke Antoniou pleaded guilty to a criminal safety offence and was fined £5,000 and ordered to pay costs of £1,957.40. HSE inspector Sue Adsett said: “The worker is lucky to
have not sustained more life-threatening injuries from what we found to be a serious breach of the law. This case highlights the importance of directors being vigilant and acting on their obligations.”

Crane hire firm fined £52,000 for worker fall

A company has been fined after a worker fractured his vertebrae after falling while working on the platform of a crane. High Wycombe Magistrates Court heard how the 54-year-old was working on the platform on 14 March 2016, which was 2m above ground level when he fell. He has since made a largely full recovery. Terex Cranes UK Ltd pleaded guilty to Regulation (4) of the Working at Height Regulations 2005 at High Wycombe Magistrates, was fined £50,000. The company also had to pay costs of £1,699.52 and a £170 victim surcharge. Speaking after the hearing HSE inspector Stephen Faulkner said: “This case highlights the importance of ensuring that workers have reasonable measures in place while working at height and it is carried out in a safe manner. “The company has now initiated a system of work platforms which would have prevented the falls.”

Farm fined £50,000 for foreseeable’ trench death

A Scottish farming company has been fined £50,000 after one of its workers was crushed to death when a trench collapsed in on him. Gary Coutts was carrying out drainage works for AT Wilson & Co at Mains of Annochie Farm in Auchnagatt, Ellon, when the soil caved in and left him trapped on 28 January last year. Colleagues frantically dug away piles of mud that was pinning him inside as they fought to free the 32-year-old. Paramedics arrived at the scene shortly after, but it was too late. The cause of death was given at a post mortem as a closed blunt force head injury. At Aberdeen Sheriff Court the firm admitted failing to carry out a proper risk assessment before they started carrying out the work. Fiscal depute Richard Brown said Gary Coutts had climbed down into the trench, which was 6ft high, 4.5ft wide and 46ft long, to clear material from the old drainage system. “At this time, a crack appeared in the right hand side of the trench. This wall then collapsed into the trench and onto Gary Coutts, tightly pinning him to the opposite wall,” he said. The Health and Safety Executive found no written risk assessment had been carried out and none of the recommended control measures were implemented to reduce the level of risk involved. “There was no means that the trench could be accessed/exited safely. A ladder could have been provided but was not done,” the fiscal depute said. These could have included shoring equipment to reinforce the walls or to batter back the walls. Fining the company £50,000, Sheriff Alison Sterling said: “I take the view that this is a serious case for two reasons. Firstly, Mr Coutts lost his life. Secondly, this was foreseeable and avoidable.”

Engineering firm fined £26,000 after saw cuts off hand

A Birmingham engineering company has been fined after a worker suffered life changing injuries as a result of a horrific incident. Birmingham Magistrates’ Court heard that on 21 March 2016 the worker at Pipework Engineering Services Limited (PESL) was operating a foot pedal saw when he came into contact with the rotating blade. The 35-year old severed his hand and wrist, which required surgery to reattach. An investigation by the Health and Safety Executive (HSE) found PESL failed to install the machine correctly and in accordance with the manufacturer’s instructions, meaningthat it could be operated from a position that took the operator very close to the saw’s moving blade. Pipework Engineering Services Limited pleaded guilty to a criminal breach of the Provision and Use of Work Equipment Regulations 1998 and was fined £24,000 and ordered to pay costs of £2087.16. HSE principal inspector Geoffrey Brown said: “The company failed to ensure the machinery was set up in a safe manner and as a result the worker suffered life changing injuries. To prevent future, similar accidents it is essential that duty holders install and set up machines correctly and in accordance with the manufacturer’s instructions.”

Farm fined £30,000 after worker crushed to death

A Welsh farm has been fined after a contractor was fatally crushed by a reversing farm machine. Swansea Crown Court heard that Jonathan Evans, 43, was contracted to spread fertilizer on the Penhill Farm Limited in Ferryside. On 31 July 2014 the father-of-two was struck by the reversing telehandler in the farm yard. He died from crush injuries sustained to his chest and body. An investigation by the Health and Safety Executive (HSE) found the farm failed to maintain the machinery, for which farm owner and sole director Selwyn Andrew Thomas Richards, 52, was directly responsible. The telehandler was in poor condition with visibility compromised by the dirty and badly positioned mirrors and dirty glass in the cab. Penhill Farm Limited pleaded guilty to a criminal safety offence and was fined £20,000 and ordered to pay costs of £10,000. The farm’s owner, Selwyn Andrew Thomas Richards, pleaded guilty to a criminal safety offence, but no separate penalty was given. HSE inspector Steve Richardson said: “This is a tragic incident which cost a popular family man his life. This case highlights the need and importance for duty holders to properly maintain dangerous machinery and vehicles, including mirrors and glass to avoid fatal incidents such as this.” Mr Evans’ daughter Jodie read an impact statement from her mother Kay to the court. It noted: “I will spend the remainder of my life grieving for him. I have considered ending my own life, but I did not because I know Jonathan would never forgive me for abandoning our children. The agony of our loss continues.”

“Those who are wilfully blind to the health and safety risks despite warnings – as you were – have got to expect to go immediately to prison.” Judge Gordon in sentencing Company Director Martin Gutaj at the Old Baily this month.

Attachment: IOSH Sentencing Guidelines Report:

Yours sincerely

Dave Joyce
National Health, Safety & Environment Officer