When the garden nursery ‘muddled through’ on health and safety
What happened?
A 26 year-old man, originally from Poland, was employed by a garden nursery and was towing a metal hydraulic-lift trailer when it came into contact with an overhead powerline. He died.
The HSE investigated the incident on the same day and immediately served the company with two prohibition notices, relating to: the operation of vehicles of a certain height from coming into contact with or closely approaching the overhead power lines; and the movement of metal irrigation pipework under the overhead lines.
A month later, a further prohibition notice was served to prevent the use of the trailer after the Vehicle and Operator Services Agency (VOSA) found that the brakes didn’t work. An improvement notice was also issued to the company to provide information, instruction and training for employees relating to transport and deliveries close to overhead power lines. The firm complied with all the notices.
The garden nursery, a small company with fewer than fifty employees, was charged with corporate manslaughter and with failing to discharge a duty imposed by section 2(1) of the HSWA 1974. The prosecution case was that there was 1. A lack of a safe system of work; 2. A lack of training; 3. the activities of the undertaking in the way that it was managed by Senior Managers was a gross breach of a duty of care; and 4. there were inadequate risk assessments.
The prosecution suggested that these failures depicted a company that was ’muddling through’ on health and safety. In particular, there are accusations of failing to provide suitable instructions to employees whose first language is not English, contrary to HSE requirements, and failing to control trees growing around power line poles, meaning that danger signs were not visible.
Legal Outcome
The nursery was found not guilty of corporate manslaughter, but guilty of a breach of health and safety law.
The judge said: He added: “No-one knows why he ventured into the area he did and he was an experienced tractor driver. The court case had established the responsibility of the company for its employees under the Health and Safety at Work Act. While the tractor driver may have acted on his own initiative, this did not diminish this responsibility.”
The nursery was fined £50,000 with costs of £47,932.
What can we learn from what happened?
The fine imposed on the garden nursery was reduced from what it could have been. While contributory negligence is more a feature of civil claims for compensation, it seems to be the case that the judge took into account the tractor driver’s independent decision to drive into the danger area, while still making the nursery legally responsible as the employer.
Source of Information
SHP Online