Don't trust to luck01 October 2005

While the risk of a prison sentence as a result of an accident resulting from the non-observance of safety regulations remains small, it is a possibility. The legal complications and potential damage to a business as a consequence of a serious accident is so great that not paying them proper attention would be a policy of complete idiocy.

Safety first is the best policy, whichever way one looks at it, especially since there is no shortage of good advice and help available - much of it free. An enlightening view of some of the latest regulations was recently presented by Teresa Hitchcock, a partner at DLA Piper Rudnick Gray Cary, at a seminar organised by Pyroban, which makes specialist products to ensure the safe operation of diesel and electric industrial vehicles within areas where potentially explosive atmospheres might be found.

Hitchcock is national head of her firm's safety, health and environment team and she appropriately entitled her talk, 'The Devil is in the Detail'. The sort of detail she had in mind was, for example, what is competent in terms of the Dangerous Substances and Explosive Atmospheres Regulations 2002 (DSEAR), which require employers to ensure that a 'competent person' verifies the classification into zones of hazardous places where an explosive atmosphere may occur. 'Competent' is not defined, although she said that, under the Health & Safety at Work Act, Sections 36 and 37, directors can defend themselves on the grounds of 'reasonableness', which in this case would mean that the person in question could be shown to have been on an appropriate course and obtained a certificate.

Employers are also required to make 'arrangements' to deal with accidents, incidents or emergencies, without any information as to what form the arrangements have to take. There is no mention of the words 'adequate' or 'reasonable'.

The ATEX regulations contain a specific offence provision, specifying a maximum penalty of three months in prison or £5,000 fine on summary conviction. In addition, the offence of using an explosive article or substance in contravention of relevant statutory provisions under section 33 of the Health and Safety at Work act is punishable on indictment by two years' imprisonment or unlimited fine. If an unexpected explosion occurs, it is usually not difficult for the enforcing authority to identify some weakness in the procedures that had been in place, so it's wise for directors to seek to protect themselves as best they can. It must be remembered that it is not sufficient only to comply with the law - it is necessary to prove compliance.

Plant operators and constructors should be aware, says Hitchcock, that there is a general concern on the part of the public about the apparent lack of culpability of anyone in management in the light of incidents such as the Hatfield rail crash or the Marchioness disaster. This has resulted in the Corporate Manslaughter draft Bill and a general trend that is making it easier for individuals to be prosecuted for gross negligence. Even if nobody goes to prison, a major calamity is liable to be totally ruinous of business and reputation, both corporate and personal. Who wanted to travel in a Townsend Thoresen Ferry after the 'Herald of Free Enterprise' disaster? And who would wish to follow the example of Sir Thomas Bouch who, after being held to blame for the poor design of the Tay Bridge, which collapsed in December 1879, was pulled off the Forth Bridge project, stripped of his knighthood and was dead not long afterwards. The contractors, Hopkins, Gilkes and Co, it should be noted, were also ruined irretrievably and were bankrupt before 1880 was out.

Also, there is now strict civil product liability for manufacturers of products found to be dangerously defective and equally strict liability for users under a judgement in the case of Rylands -v- Fletcher, which concluded that when a reservoir dam burst, it was not an 'Act of God', but the responsibility of the dam owner to avoid damage to neighbouring property. Insurance gives some degree of protection, but it's unlikely to cover all possible costs, such as the financial implications of product recalls or damage to reputation. There is also the possibility of avoidance of cover, on the grounds of failure to disclose inadequacies that contributed to the accident, and insurance will not cover criminal penalties. Insurance can cover the costs of defending proceedings, but only if and when judgement is given in the favour of the accused or they have been acquitted.

Hitchcock concluded by referring to several cases, including an employee who was electrocuted by a shop cleaner and reported this to a director of the company. Nothing was done, with the result that a second man was also electrocuted, this time fatally. As a result, the director was sentenced to 18 months in prison for not disabling the cleaner.

According to the HSE, 982 cases were prosecuted in 2003/4. The average fine per case prosecuted by all HSE directorates rose from £9,395 in 2002/3 to £14,702 in 2003/4 - and 89% of cases prosecuted led to a conviction.

The largest fine to date, however, is the £15m fine imposed on Transco on 25 August this year. Because the company believed one of its mains was made of polyethylene, it had neither maintained nor replaced it. In fact, the mains was made of ductile iron, with the result that it corroded and leaked. The outcome was that, just before Christmas 1999, gas leaked into the foundations of a bungalow occupied by the Findlay family in Larkhall, Lanarkshire. Andrew Findlay, 34, his wife Janette, 37, and their children Stacey, 13, and Daryl, 11 died in the ensuing explosion. Judge Lord Carloway said the level of the fine was not about "exacting revenge for their deaths" or placing a monetary value on the lives of the Findlay family, but "about gauging an appropriate penalty for a serious failure over many years of one of our main privatised utilities, a company in whom the public put their faith and to whom they pay substantial sums of money to ensure the safe transportation of their fuel."

It should also be noted that between April 1992 and March 2003, a total of 253 possible manslaughter cases were referred to the CPS. The CPS brought prosecutions for manslaughter in 69 cases, 18 of which have resulted in convictions.

Other speakers giving presentations at the Pyroban event included Mike Halliday of Burgoyne Consultants, who talked about the technical challenges involved in risk assessment, hazardous area classification and loss prevention.

Interestingly, he said that the technical criteria for deciding what is safe regarding electrical equipment has not changed in the last 30 years. His general message was that if equipment was safe before, it was safe now and vice versa.

This view was reinforced by Peter Raby, the EHS and loss prevention manager of Glaxo SmithKline at Dartford, who talked about issues concerning forklift trucks, including those supplied by Pyroban. Accidents seemed to be mainly caused by human error: running into things, a worn tyre not reported in the maintenance log, and a fire caused by a pair of gloves contaminated by a catalyst and thrown under a seat. Good management, risk assessment to avoid unexpected mishaps and proper training were the successful solutions, as always.

SOE

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