Last reviewed 16 January 2014
Vikki Woodfine, Associate at DWF LLP, addresses issues to consider if a haulier is involved in a fatality through work. What are the legal implications of such an incident and how should operators seek to best protect themselves? With an increased focus on the many recent cyclist deaths in London, what should operators be thinking about? As the changes to corporate manslaughter legislation finally begin to bite, what might this mean to businesses and their directors?
Worst case scenario
There can be little doubt that a director’s worst nightmare would be if their company was involved in a fatal incident. If an operator found itself in the tragic situation of an employee being killed at work, or somebody else being killed as a consequence of that business’s operations, companies and individuals could find themselves under scrutiny in potential manslaughter investigations.
The process following such a death would see the police investigate the matter to assess whether tests relating to Gross Negligence Manslaughter (GNM) or Corporate Manslaughter (see below) are made out. Where the police are investigating manslaughter offences, operators should expect unannounced visits to their operating centres/offices, document raids, significant interviewing of staff and potentially numerous arrests.
It is not unusual in such cases to see police arrest directors and workers, take them to the police station and interview them as suspects under caution. This can be a very unnerving process that not only causes huge business disruption, but also tremendous personal stress on the individuals involved.
Following a work-related death, the charge that would be under investigation against an individual rather than a company is involuntary manslaughter, specifically gross negligence manslaughter.
This charge is relevant where the investigators believe that the death is a result of a grossly negligent act or omission on the part of the suspected individual(s). The four-stage test for GNM is known as the “Adomako Test” and is as follows.
A duty of care to the deceased existed.
There was a breach of this duty of care.
This breach caused (or significantly contributed to) the death of the victim.
The breach should be characterised as gross negligence and therefore a crime (“it showed such a disregard for the life and safety of others as to amount to a crime and deserve punishment”).
GNM is generally defined as the failure to exercise a reasonable level of precaution given the circumstances and so may include both acts and omissions. With the maximum potential penalty for this offence being life imprisonment, being investigated for this offence is a terrifying position for anybody to find themselves in.
In such cases, the defendants are often people carrying out jobs that require special skills or care who fail to meet the standard, which could be expected from a reasonable person of the same profession, and cause death. Therefore, a transport manager or haulage director could find themselves at risk if gross failings are found, such as systematic failures in maintenance and “corner cutting” or, as in the case of AJ Haulage, deliberate flouting of drivers’ hours legislation.
In that case, on 28 June 2013, two former partners of AJ Haulage were sentenced to a combined period of 6.5 years for manslaughter offences after one of their drivers fell asleep at the wheel and died when his lorry collided with stationary traffic in February 2010. The driver’s tachograph records showed that he had worked for 19 hours and 15 minutes on the day that he died. In that time he had been driving for 13 hours and 8 minutes and had covered 592 miles.
The case against the defendants was that management at AJ Haulage “tolerated, if not encouraged” their employees to work over and above the hours set out by EU law. The defendants permitted the driver to continue driving illegally and, as a result, were found to have exposed him to the risk of death because of their gross negligence.
In sentencing the pair, the Judge said “heavy lorries pose a very real threat to other road users and that threat was substantially increased by the way you ran your haulage business”.
If AJ Haulage had been a company rather than a partnership then we may have seen the first corporate manslaughter prosecution for the industry in this case.
Corporate manslaughter — the basics
On 6 April 2007, the Corporate Manslaughter and Corporate Homicide Act 2007 (the Act) came into force across the UK. In the years that followed its introduction, there was little to no activity in the sense of charges being brought. However, following this initial lull, there is now a picture building of convictions and charges being brought under the Act.
A company commits the offence of corporate manslaughter if the way in which its activities are managed or organised by its senior management causes a person’s death and amounts to a gross breach of a duty of care to the deceased. Not only does an operator owe a duty of care to its drivers but also to other road users.
The way in which the organisation is managed by its senior management has to be a substantial element in the breach of the duty of care. What can catch many businesses out is the definition of “senior management”. This can mean either those who play a significant role in making decisions about how the whole or a substantial part of the organisation’s activities are to be managed or organised, or those who play a significant role in the actual managing or organising of the whole or a substantial part of those activities. Therefore, a transport manager could arguably be defined as a senior manager despite the fact that the directors of the company may not view him/her in that way.
The Act disposes of the need to identify a single controlling or directing mind of an organisation, who is also guilty of the offence of gross negligence manslaughter. This was required previously to establish the old common law offence of corporate manslaughter. The Act enables the prosecution to aggregate serious failures involving more than one individual within the company at senior management level.
The penalties for corporate manslaughter can include:
a remedial order requiring the organisation to take specified steps to remedy the breach, any matters that contributed to the cause of death or any deficiency in the organisation’s policy, systems or practices relating to health and safety
an order for the conviction to be published (a publicity order), which can require the organisation to publish the fact that it has been convicted of the offence, to specify the particulars of the offence, the amount of any fine imposed, and the terms of any remedial order made
a fine — sentencing guidelines indicate that the appropriate fine will seldom be less than £500,000 and may be measured in millions of pounds.
Corporate manslaughter in practice
October and November 2013 saw another two companies plead guilty to charges under the Act.
In October 2013, a company based in County Down entered guilty pleas after an employee was killed when he fell into an animal feeding machine. This is only the second case of its kind in Northern Ireland and the fourth such case in the UK. J Murray & Sons were sentenced to pay a £100,000 fine, plus £10,000 costs.
Briefly, this case involved an employee who had either fallen, or was dragged, into an animal feed mixing machine. He was found “entangled” within the machines’ blades, with the Health and Safety Executive NI subsequently saying that there was nothing (ie no guarding) to prevent the incident occurring.
In November 2013, the Prince’s Sporting Club in Bedfont, West London, pleaded guilty to a charge of corporate manslaughter. This case involved an 11-year-old girl who was killed when she was hit by a boat towing the inflatable (banana boat) that she was riding. The company was fined £135,000 after it accepted culpability for the death.
Corporate vs individual liability
The guilty plea in the J Murray & Sons case saw a charge of unlawful killing against company director James Daniel Murray withdrawn. Equally, the guilty plea in the Prince’s Sporting Club case saw a charge of unlawful killing against company director Frederick Glen Walker withdrawn. These cases serve as further examples where a charge against an individual has potentially been used as leverage to get a plea to a charge of corporate manslaughter.
We saw in 2012, in the case of R v Lion Steel, three directors each charged with gross negligence manslaughter and charges under the Health and Safety at Work, etc Act 1974 (HSWA), as well as the company being charged with corporate manslaughter. As this matter progressed through the courts, some of the charges against individuals fell away but some remained. The company was eventually left with one director facing a charge of manslaughter and a charge under the HSWA, and a further director facing prosecution under the HSWA. This was in addition to the corporate manslaughter matter that was on-going at Manchester Crown Court.
The outcome of this case saw the Crown Prosecution Service (CPS) accept a plea from the company to corporate manslaughter and the remaining charges against the individual directors withdrawn.
The consequences for directors put in this position are very real, with a director of Lion Steel recently explaining the moment that he realised charges against him were withdrawn.
And then it was all over. It was surreal — the problem was I had two colleagues next to me in the dock. One was in serious trouble and one on a lesser charge. Your upbringing says you cannot jump up and down, and you feel sorry for the guy next to you. Everything’s drained out of you.
I was then put under ultimate pressure to sacrifice the company for the other two. We had a board meeting and they decided 2–1 that the company would plead, and I voted against it. So they did that, walked into court and the judge found us all not guilty, but for me it ruined the effect of being found not guilty and it never gave me closure; it just left me feeling really down and depressed. I felt my ‘not guilty’ verdict was tainted by the fact that theirs was a deal, whereas I had been found not guilty by the judge. I needed that — I don’t know why and I didn’t get it.
What is interesting from the Lion Steel, J Murray & Sons and Prince’s Sporting Club cases is the agonising decision facing directors: do they sanction a guilty plea for their company under a corporate manslaughter charge facing massive fines, or do they run the risk of a jury convicting them (personally) for manslaughter and the inevitable custodial sentence that holds?
It is safe to assume that most directors put under such immense pressure would sacrifice their businesses’ financial position over their liberty.
Putting on the squeeze
It is understood that these are the corporate manslaughter cases currently going through the courts in England and Wales.
P S & J E Ward Limited is charged with corporate manslaughter.
MNS Mining Limited has been summonsed for four counts of corporate manslaughter. Yet the mine manager, Malcolm Fyfield, is also charged with four counts of gross negligence manslaughter despite having almost lost his own life in the incident.
Mobile Sweepers (Reading) Limited is charged with corporate manslaughter and the company’s sole director, Mervyn Owens, with gross negligence manslaughter. Both are also charged under the HSWA.
Sterecycle (Rotherham) Limited, a company in administration, is charged with corporate manslaughter, with three men also charged with health and safety breaches under the HSWA.
There is a pattern emerging, with all ongoing cases bar one having individual charges alongside corporate manslaughter, and the completed cases also having had individual charges brought (and then dropped as part of a plea deal).
This charging behaviour can, and does, see a skew in eventual guilty pleas for corporate manslaughter in such cases where directors seek to avoid a personal conviction.
There is a sense of unease about this situation as the Act was brought in to capture the most serious breaches and to attach corporate liability in large, complex organisations. It abolished the common law test previously applied to corporate manslaughter matters, which required a duty of care to be present between the employer and employee, and which had been breached and could be shown to be a substantial cause of the death. The major requirement of the test was that it had to be applicable to a “directing mind” of the company. Previously, it became apparent that large companies were escaping prosecution due to complex management structures making it difficult to identify the main individual who was directly responsible for the breach of any duty. This was why we saw the introduction of the Corporate Manslaughter and Corporate Homicide Act 2007.
However, with all of the individual prosecutions sitting alongside the corporate manslaughter cases so far, it is arguable that these cases could have just as easily been brought under the old law. Therefore, despite now having the fifth UK conviction for corporate manslaughter with a number of other cases progressing through the courts, we are yet to see a case being brought to truly test this legislation.
A change in approach to road traffic collision investigations
Employers have a duty of care to their employees, which includes a duty of care to drivers out on the road.
Historically, despite the road network being the biggest workplace in the UK, driving activities have not been given as much focus in terms of health and safety enforcement as work activities that take place at an operator’s premises. The historic lack of enforcement of health and safety legislation following road traffic collisions (RTCs) has allowed some operators to become lax in the health and safety systems they have in place for their drivers.
However, cases like that of AJ Haulage (above) highlight a change in approach by the police, who are increasingly investigating beyond driver fault in RTCs in order to consider whether there is any employer accountability for fatal accidents.
It is now becoming standard practice for the police to demand access to an operator’s safety policies and other documentation, including tachograph records and work rotas, following an RTC involving a professional driver. Following a fatal RTC, police could scrutinise an operator’s systems to check whether the operator has fulfilled its duty to ensure the drivers’ safety. The police might want to look at drivers’ tachograph charts, driver training records and vehicle maintenance to see whether the operator or its directors and managers have been properly managing the safety of their drivers.
Cyclists in the spotlight
Building on the general shift in how the police are investigating RTCs, consideration must also be given to the increased media focus on cyclist and large vehicle collisions. In November 2013, we saw six cyclists killed in London, which caused a media storm. Of the 14 cyclists killed in the capital in 2013, nine of those collisions involved HGVs.
With these statistics being released, it was inevitable that the haulage industry would face some media and public backlash. There were calls for HGVs to be banned from the streets of London by Team GB Cyclist and British Cycling’s Policy Advisor Chris Boardman. Mr Boardman called for a rush-hour ban on HGVs in the capital, citing the success of a similar ban in Paris.
However, only two of the 14 deaths in London in 2013 could have been prevented by such a ban (the other 12 happened outside the rush hour, or did not involve HGVs). Consideration must be given to the impact that such a ban would have on the inhabitants of urban areas, businesses and the wider economy.
With London already banning the largest vehicles from its roads during the night, how could it then ban them during morning and evening rush hour? In a city that is beginning to recover from many tough financial years, construction is certainly increasing in central London. Without HGVs being able to get into London, how would any of these sites progress if materials cannot reach them? Until the night time ban is looked at in London, rush hour bans would be near impossible to introduce.
While the focus is often on the capital’s cyclists, it is important not to lose sight of the difficulties that HGV drivers face in these challenging situations. HGV drivers are already under immense pressure to navigate congested roads and in extremely large vehicles that will inherently have blind spots. Unlike your average car driver, following a fatal collision, HGV drivers will often be arrested and taken to a local police station to be interviewed under caution when he or she may well still be in a state of shock.
HGV drivers are often arrested because the perception exists that an accident is automatically their fault. This is particularly true where a cyclist is involved as they are seen as a vulnerable road user even if the cyclist has created the danger to themselves.
If operators have properly planned their drivers’ journeys and the drivers are appropriately experienced and trained, it is difficult to foresee how liability could attach criminally to anybody beyond the driver (and even the driver may not be found to be culpable). However, 2013 did see calls from Boris Johnson and Stephen Hammond for the creation of a Safer Lorry Charge zone and the possible removal of exemptions (under Construction and Use legislation), which currently mean that safety equipment does not need to be fitted on a number of HGVs including construction vehicles.
The Mayor of London has said that HGVs need to be made safer for cyclists, and there could be a charge for HGVs that do not meet the new standard if it is introduced. By putting additional obligations onto operators in this way, a failure to abide by them would not only see penalties for that, but could also demonstrate an unsafe culture that could be used as evidence against an operator involved in a fatal RTC.
The proposed London Safer Lorry Charge is partly modelled on the London Low Emission Zone, which charges up to £200 a day for commercial vehicles that do not meet tough emission standards. A new HGV Task Force would expand enforcement capacity against problem HGVs, issuing penalties for vehicles that do not feature required safety features.
So what does this mean in reality? Presently, the law allows older vehicles not to have the latest mirrors in place that improve the driver’s field of vision. Also, while many vehicles require side bars that push cyclists away from wheels if they are hit, there are exemptions to this and it is these exemptions that are now being looked at. The exemptions apply to a whole host of vehicles, including construction vehicles and waste refuse vehicles.
The focus in London is particularly on vehicles servicing construction sites as these appear to be disproportionately responsible for cyclist deaths, as stated in a study earlier in 2013 by Transport for London (TfL) (The Mayor’s Vision for Cycling in London). The report found that “road risk is viewed as less important than general health and safety risk on site”.
Responsible operators using vehicles in and around London are often already taking steps above and beyond their legal requirements to make their vehicles as safe as possible for bicycles. One example of a proactive and responsible approach being adopted by one of London’s largest construction projects is that of Crossrail, which has implemented requirements on contractors’ large delivery vehicles in a bid to improve cycle safety and to prevent death arising from HGVs involved in the project. Requirements are written into contracts and are rigidly enforced. They include:
blind spot proximity sensors and warning alerts for cyclists
“Fresnel lenses” for better driver field of view
side scan equipment which results in an audible tone in the cab if a cyclist is detected on the left inside of the vehicle
guards to prevent cyclists from coming into contact with lorry wheels
better vehicle signage to warn cyclists and pedestrians.
Operators should look to make voluntary improvements to their vehicles such as these, to reduce any potential exposure to criminal liability. Aside from the obvious benefits of preserving life and reducing serious injuries, and the stress and trauma that invariably follows, measures such as these are becoming less expensive and will soon be widely regarded as “basic measures”. They are expected to be in place in order for an operator to demonstrate that their organisation has done all that is reasonably practicable to ensure the health and safety of employees and other persons.
Involvement in serious incidents will attract not only the attention of the police and health and safety enforcement agencies, but may result in a call to appear in front of the Traffic Commissioner, who can ultimately revoke an operator’s licence. Therefore, these steps must be placed high on operators’ safety agendas for 2014.
Having considered where the law stands now on manslaughter matters, it is important for operators to perform an analysis of their business. Where are the vulnerabilities and where can improvements be made?
Operators must ensure that there is a strong culture of compliance being driven through the business from the top down. Following a work-related fatality, GNM and corporate manslaughter are the most serious of charges available to the prosecution and they are much less likely to be charged than a charge under the HSWA. The bar is very high for the prosecution to establish guilt and the CPS will carefully review cases before charging. However, the message is really simple: operators must be compliant as deliberate corner-cutting could result in the most serious charges being brought following a fatality. Haulage companies must pay close attention to the laws and guidance on health and safety, as well as ensuring that they comply with their obligations under their operator’s licence.
The CPS provides guidance to police on when they should consider charging operators, or their directors, for corporate or individual manslaughter. The CPS specifically advises that corporate or individual responsibility for a death may arise where:
an operator has no regular system of preventive checks, showing indifference to an obvious risk of injury
a company director knows about a defect in a vehicle but allows it to go onto the road before the vehicle is repaired
an operator fails to ensure that drivers work proper hours and have appropriate rest periods.
In May 2012, Sergeant Gareth Morgan, Supervisor of South Wales Police Driver Training, warned fleet operators that police forces across the UK are waiting to prosecute an operator for corporate manslaughter. While we are still waiting for that first prosecution some 18 months later, the case against AJ Haulage suggests that the first corporate manslaughter prosecution in the wake of a fatal RTC might be just around the corner. The AJ Haulage case serves as a stark warning to operators to get their systems in place to ensure the safety of drivers and other road users and avoid being convicted of corporate or individual manslaughter if the worst should happen.
It is impossible to simply draw up a list of steps that operators should take to avoid being vulnerable to manslaughter charges if the worst should happen and a fatality were to occur. However, broad areas of consideration should include the following.
Drive a health and safety culture throughout the business, ensuring that this comes from the top down. A board member should have specific responsibility for health and safety, even if a health and safety professional is engaged to manage the day-to-day tasks.
Act in compliance with the undertakings under the operator licence, as this covers risk areas including drivers’ hours, vehicle loading and vehicle maintenance. A poor compliance history under the operator licence would serve as strong evidence for any manslaughter prosecution.
Have clear, digestible policies that are easy for all employees to follow. Driver’s handbooks should make it clear what is expected of drivers. Equally, the drivers should be consulted about the content of the policies and procedures; are they realistic and achievable?
Keep records of employees’ training and consider refresher courses where necessary. For example, if there are persistent drivers’ hours infringements, or it is found that daily walk-around checks have missed obvious points, refresher training must be considered. With Driver CPC now in place and training being required by law, this should be an easy point for good hauliers to demonstrate.
Risk assessments should be an inclusive exercise, involving feedback from employees. Risk assessments should not just be written down and put to one side; operators must be able to demonstrate how they communicate this information to employees and that employees have understood this.
Finally, having systems in place to deal with crisis management is a positive step for any business, but how would they cope under stress? The most compliant business looks to stress-test its systems or have independent auditors visit the business to review the safety policies and culture in place.
Operators that take steps to reflect and look carefully at their safety systems will be best protected should the worst happen.
While no business would ever seek to be involved in a fatality, unfortunately accidents do happen. Operators should focus on taking steps to seek to avoid any such accidents, as far as reasonably practicable.
Furthermore, operators can ensure that they have a clear audit trail showing the work that they have done in achieving compliance. It will be these systems that would see an operator avoid the most serious criminal charges in the event of a work-related death. When considering the effect of such charges on businesses and the individuals working there, it is hopefully obvious that taking preventive action in advance is a good use of an operator’s time as we move into 2014.