A truck and trailer business has had its fine for safety offences discounted from £475,000 down to £200,000, the Court of Appeal heard last week.
Lord Justice Gross hearing ATE Truck & Trailer Ltd’s appeal over the fine for the death of self-employed worker, William Price, in February 2013, found the fine had been ‘manifestly excessive.’
The court heard on 13 April that His Honour Justice Berlin, sentencing at Wolverhampton Crown Court last year, had ‘strayed’ in basing his fine on Mr Price’s death alone, rather than the ‘causal link’, because it was beyond the basis for ATE’s guilty plea.
ATE had, it was reminded, pleaded guilty and fined for not providing a ‘suitable and sufficient’ risk assessment as required by Regulation 3(1)(a) of the Management of Health and Safety at Work Regulations 1999 ("the Regulations"), contrary to s.33(1)(c) of the Health and Safety at Work Act 1974.
No evidence had been offered against ATE on a separate Count of failing to discharge the duty to non-employees imposed by s.3(1) of the Act.
The court heard how, self-employed William Price, 63, had been working as a contractor for Wolverhampton-based ATE.
A scrap metal dealer since he was 26, he had collected and sold scrap generated through ATE's activity of refurbishing and repairing vehicle trailers since the 1990s.
In 1998, when ATE began to export flat-bedded trailers to customers abroad a new agreement was formed. Price would cut the superstructure from the trailers and retain and sell the metal as scrap, leaving ATE to sell on the flatbed. It was an arrangement that ‘benefited both parties’, the court heard.
On the day of his death, 21 February 2013, Mr Price had been using a forklift truck –which he owned and brought himself onto ATE’s site – to support the trailer roof as he cut off the sides. This was ‘inherently unsafe’, and differed from the method used by ATE’s own employees, which was a safer method involving a crane and forklift for the work.
However, LJ Gross, said ATE’s failure rested on the absence of risk assessment provided to its own employees, which was then not shared with Price.
He said the risk assessment matter was ‘linked causally to the death of a non-employee’. Judge Berlin had therefore ‘strayed’ in focusing on Mr Price’s method of work, as it was ‘not in accordance with the basis of plea’, said Justice Gross.
Despite ‘expressing some concern as to an air of artificiality’ surrounding the plea, LJ Gross could not see any benefit from asking the parties to ‘begin again’, which would cause ‘unnecessary expense’.
The appeal judge agreed with HSE and Pinsent Masons acting for ATE that the case was one of low culpability. Other than absence of the risk assessment, there had been ‘no other criticism’ from HSE on the method of work ATE’s employees followed. He moved the offence from high to low culpability.
The next factor in lowering the fine was likelihood of harm arising. The sentencing judge had held that there was a high likelihood, ATE that there was a low likelihood. “We respectfully disagree with both the Judge and ATE. We agree with the HSE that this was a case of medium likelihood,” said the appeal court judge.
As death had resulted, the offence was "a significant cause of actual harm" and he moved the case up a harm level to harm category 1.
The fine he settled on as £300,000 fine reduced by one third to £200,000 for the guilty plea.
'Sympathy cannot determine appeal'
Justice Gross said “the [sentencing] Judge had understandable concerns as to the basis of plea, accepting ATE's guilt in respect of Mr Price via its breach of duty to its own employees.”
But ultimately this was the case before the courts: “We express our sympathy for the family of the deceased. That sympathy cannot determine the outcome of the appeal and no fine of whatever amount can bring back Mr Price,” said Judge Gross.
Sean Elson of Pinsent Masons, writing for the law firm's site Out-Law.com, said: "This was a tragic case, but we are pleased that the Court of Appeal has agreed with the position taken by our client and agreed with the HSE that its culpability was low.”
"We had always considered that on the facts of this case, the fine originally imposed was manifestly excessive and that the original approach taken in trying to apply the definitive guideline for sentencing health and safety offences had been flawed.
"This case also has wider application for the way such cases are dealt with, in particular reinforcing that the courts should have careful regard for any agreed position between the parties as there had been in this case," he added.
ATE judgment here
HSE inspector interview on the case here
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