25 April, 2017
In recent months we have written about the growing trend of prosecuting individuals for health and safety breaches in Australia, particularly in relation to manslaughter charges.
This development is not just limited to Australia. Globally, we are witnessing an increase in the number of convictions of officers and workers for serious breaches of health and safety. The recent convictions of Kelvin Adsett in the United Kingdom and Don Blankenship in the United States, evidence a trend by regulators to focus on holding leaders of organisations to account as a means of achieving corporate compliance. Further, regulators are not confining themselves to prosecuting offenders for breaches of health and safety laws, but are instead widening their ambit to pursuing manslaughter and conspiracy charges.
Key takeaways include:
- The number of manslaughter charges arising out of workplaces incidents, or following breaches of health and safety is on the rise, globally;
- Officers and workers are being personally prosecuted. These charges are not confined to health and safety legislation, but include manslaughter and conspiracy charges; and
- Regulators are pursuing offenders using a two-pronged approach of both general criminal laws and health and safety laws.
United Kingdom
On 23 March 2017, Kelvin Adsett was convicted at the Central Criminal Court (Old Bailey) of manslaughter by gross negligence and offences contrary to section 7a of the Health and Safety at Work Act 1974 (UK). The charges arose out of an incident which occurred on 30 August 2012, when a member of the public, Amanda Telfer, aged 43, was crushed to death by wooden window frames weighing 655kg which were blown over in London's Hanover Square. She was pronounced dead at the scene. Mr Adsett was the on-site project manager of the window installer, IS Europe Ltd.
In the lead up to the tragedy, a host of issues aligned. The wooden frames arrived earlier than anticipated, they were unable to be installed, and the principal contractor refused to allow them to be stored indoors. Consequently, the frames were left outside overnight, on the footpath, leaning against a wall unrestrained. Passers-by noted that they witnessed the frames 'swaying in the wind' prior to the accident. Given the weight and size of the frames, the prosecutor argued the frames posed a clear and serious risk to health and safety.
The court heard that the incident could easily have been ameliorated with a series of obvious and straightforward steps which included "cancellation, delay, refusal of delivery on the one hand, to the storage, use of straps and barriers".
Unfortunately, these control mechanisms were never utilised. Instead, Mr Adsett and his colleagues were filmed on closed circuit television discussing where to place the frames after the principal contractor refused to allow them to be stored indoors. When asked by the prosecutor whether it was his decision to place the frames on the footpath, Mr Adsett responded "I put them there. It wasn't the first time. The first time [they were stored there] was on 22 August – about a week before".
The incident was investigated by the Metropolitan Police's Homicide and Major Crime Command, with the assistance of the Health and Safety Executive (HSE). Four people (including the senior project manager responsible for health and safety and two project managers) and three companies (including the principal contractor, the manufacturer and the installer of the frames) were charged with a total of 13 charges following Ms Telfer's death. The incident was characterised by the Metropolitan Police detective chief inspectors Andrew Chalmers as a 'tragic case' and the Mr Adsett was said to have had a 'laissez-faire attitude to health and safety'.
The conviction of Mr Adsett is one of many in the past year. Recent figures from the HSE, obtained by our Manchester office, show a threefold rise in the number of health and safety prosecutions in the UK against officers in the past year, reaching a five year high. Conversely, the number of employees prosecuted had fallen to just one. Of the successful prosecutions, 12 individuals were given prison sentences with the longest gaol term imposed being 2 years.
Rhian Greaves (Legal Director of our Manchester Safety, Health and Environment team) notes that the HSE uses the pursuit of senior personnel as a way to draw attention to the need to manage risks appropriately. However, it was also noted that prosecutions (of any type) against individuals are still the minority of cases, with the overwhelming majority of all prosecutions still being brought against the corporate entities.
The HSE's policy for prosecuting officers is dependent on two factors: sufficient evidence to prove the occurrence of a breach; and public interest considerations. Such considerations include when officers are personally responsible for the offence.
In the UK, all breaches of health and safety laws are criminal matters and manslaughter offences take precedence in the investigation stage as they are considered to be more serious offences. However, the HSE also has the power to investigate and can bring charges concurrently. This can, and often does, result in two-pronged approaches, as is exemplified by the case of Mr Adsett. In Australia there appears to be a precedent of utilising general criminal laws to prosecute smaller companies, and health and safety laws to prosecute larger organisations. Last week, on 5 April 2017, the Queensland State Industrial Relations Minister, Grace Grace, stated that Queensland had begun auditing its work health and safety laws to determine whether an offence of gross negligence causing death should be introduced and whether the maximum penalties for workplace related injuries and deaths should be increased.1
United States of America
On 3 December 2015, the Chief Executive Officer of Massey Energy Company, Don Blankenship was found guilty by the Federal District Court of conspiracy to wilfully violate mine health and safety standards in relation to the 2010 explosion at the Upper Big Branch mine which resulted in the death of 29 miners.2 On 6 April 2016, Mr Blankenship was sentenced to a year in prison and fined USD250,000. He is due for release next month on 10 May 2017.
The investigation into the explosion found that the mine had begun to collect large quantities of coal dust due to poor ventilation. This, coupled with a small methane ignition resulted in the massive explosion.3 The previous year, US federal regulators had found that the mine failed to follow methane-related safety precautions and required the ventilation to be corrected. This is timely reminder for Australia on the importance of compliance with dust disease obligations given the current reforms in the mine safety and health sphere. The Mining Safety and Health Legislation (Coal Workers' Pneumoconiosis and Other Matters) Amendment Regulation 2016 now requires Queensland employers to notify safety inspectors whenever dust concentrations exceed prescribed thresholds. This follows the re-emergence of black lung disease in 2015.4
The Upper Big Branch mine incident was investigated by the FBI and the US Department of Labor's Office of Inspector General and resulted in a total of five criminal convictions, including Mr Blankenship's and a resolution of over USD200 million to be invested into mine safety. The other convictions included: the former mine supervisor, Gary May, who was sentenced to 21 months in gaol after pleading guilty to disabling the methane gas monitor, falsifying mine records and obstruction safety inspectors; and a former Massey Energy executive, David Hughart, who was sentenced to 42 months imprisonment on conspiracy charges for pre-warning officials at Massey's mines before safety inspections. Witnessed called to testify at the jury trial provided evidence on the unsafe working conditions at the mine and the extent to which mine safety and health regulations were subverted, including organised efforts to obstruct inspectors and tactics to ignore and defraud the Mine Safety and Health Administration.
Mr Blankenship's sentence was lauded as a victory for workers and workplace safety, reinforcing the severity of breaches of health and safety laws to executives and the personal consequences of failing to adhere to those standards. The Acting US Attorney Carol Casto stated:
"putting profits over the safety of workers is reprehensible… the jury acknowledged that with the guilty verdict and the sentence imposed today recognises that disregarding safety laws has real consequences. From the beginning, the objective of this investigation and this prosecution was to not only show that those who violate safety laws will be held responsible, but also to deter these violations in the future to make everyone's workplace safer".
Comments
What is remarkable in the cases of Mr Adsett in the UK and Mr Blankenship in the US is the common element that the directors or officers had, or should have had, actual knowledge of the safety risks and nonetheless acted in defiance of it. This is not dissimilar to some of the recent manslaughter convictions in Australia, for example the conviction of Peter Francis Colbert in South Australia in October 2016 who was found to have knowledge of a truck's dilapidated brakes prior to one of his workers being killed when the brakes of the truck failed.
These convictions emphasise a global trend of assigning greater accountability to officers and workers for serious breaches of health and safety. The current state of play around the world is clear – regulators have a repertoire of provisions available to them following a health and safety incident and officers should consider themselves forewarned.
1 http://statements.qld.gov.au/Statement/2017/4/5/expert-panel-to-put-work-health-and-safety-laws-under-the-spotlight
2 https://www.justice.gov/opa/pr/former-massey-energy-ceo-sentenced-year-federal-prison
3 https://www.gpo.gov/fdsys/pkg/CHRG-112shrg81653/pdf/CHRG-112shrg81653.pdf
4 A recent interim report released by the Queensland Parliamentary Inquiry Committee has stated that black lung was never in fact eradicated. Instead, Queensland authorities failed to correctly identify it for 30 years. The NSW Resources Regulator has also announced that it plans to take enforcement actions if its investigation into the first case of black lung in NSW since the 1970s reveals breaches of work health and safety laws.
For further information, please contact:
Michael Tooma, Partner, Clyde & Co
michael.tooma@clydeco.com
