Washing machine maker Whirlpool UK Appliances Ltd has had its fine cut from £700,000 to £300,000 at the Court of Appeal after lawyers successfully appealed its sentence for the death of a fire alarm technician at a factory near Bristol.
Barrister Dominic Adamson of Temple Garden Chambers argued that the judge had ‘erred’ in his application of the guidelines in setting a ‘manifestly excessive’ starting point of £1.2m. Chief Justice Burnett agreed, concluding after considering culpability, risk of harm, actual harm and turnover, that the fine was too high.
Fining a very large firm under the guidelines should not be about reaching ‘extravagant multiples’, he told the Royal Courts of Justice at the appeal hearing on 21 November 2017.
“In our view a starting point of £450,000... is sufficient to have a real economic impact which will bring home to the management and shareholders the need to comply with health and safety legislation but it is also proportionate to the appellant’s overall means.”
He then reduced the fine by a third for the firm’s guilty plea.
The incident took place on 21 March 2015 and the facts of the case were told to court again.
Clive Dalley had been installing fire and heat detector systems at the former Indesit factory, in Yate, near Bristol, when he fatally fell nearly five metres from a mobile elevated working platform (MEWP).
Mr Dalley had told maintenance workers at the site he was having a coffee break. Unaware that the self-employed fire alarm contractor had returned to his work, they turned an overhead conveyor on, causing a basket to fall, which knocked the MEWP and caused the 66-year-old man to fall. He suffered multiple fractures and later died from complications arising from his injuries.
Whirpool pleaded guilty at the sentencing at Bristol Crown Court on 21 March 2017 to breaches of section 3(1) of the Health and Safety at Work Act 1974.
But Whirlpool, represented by Mr Adamson and legal firm Plexus Law, argued that the judge had not considered its ‘poor profitability’ relative to turnover in reaching the fine.
Lawyers also said that mistakes had been made in judging the impact of a death on sentencing ranges.
Chief Justice Burnett found in favour of the arguments. He said the judge had failed to consider step three of the guidelines, which says the court should consider the relevance of turnover and, if necessary, adjust the fine.
In fact there had been two losses in 2015, he noted. Regard needed to be paid for a company trading on ‘wafer-thin margins’, he said.
The judge was in agreement with the original sentencing that the case was low culpability, harm category 3. The company had policies for working with contractors and Mr Dalley had been aware of these. There had been a ‘walk through’ two days before the incident to discuss risk. There had also been no risk of harm to any other person that day.
He then went on to consider the fact of the death. He said it was sentencing policy to treat a death as a reason to ‘substantially increase’ a sentence. He therefore moved the case up into harm category 1, which attracts fines of £180,000 to £700,000 for large turnover firms.
But he disagreed that at this point the fine should have been moved to an even higher category to reflect Whirlpool’s status as a very large firm under the guidelines (with its turnover of £700m).
“Most organisations with a turnover which very greatly exceeds £50 million will be treated as very large organisations. But even then the guideline retains flexibility to meet the individual circumstances by suggesting that it “may”, not will, be necessary to move outside the range,” he said.
Appeals – a trend?
The case is one of a handful of successful appeals against fines since the sentencing guidelines were introduced in February 2016.
In November 2016, Scottish Power had its fine slashed from £1.75m to £1.2m on appeal after appeal judge, Lord Carloway said it ‘was not clear’ how the sentencing guidelines had been followed.
In July 2017, Tata Steel’s fine was reduced from £1.98m to £1.5m on the basis of likelihood of harm.
Chief Justice Burnett concluded that the Whirlpool case was ‘unusual’: “A fine of the order imposed by the judge would only have been appropriate if the factors weighing in the balance for the purposes of the guideline had been different.”
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