Health and Safety Bulletin – February 2022

Welcome to this month's health and safety update. View the headlines below or click the pdf at the bottom of the page to read the full articles.

Fines and sentences

£6.5m fine issued after death of boy at a rail freight depot

In June 2017, 11 year old Harrison Ballantyne gained access to a rail freight depot in order  to retrieve his football. He was able to climb on top of a stationary freight wagon, when he  came into contact with the overhead line, he received a fatal electric shock. WH Malcolm, the operators of the rail freight depot were charged with breaching the Health and Safety at Work etc Act 1974 by the Office of Rail and Road (ORR). However, WH Malcom denied the breaches, resulting in a three-week trial.

At trial the court heard how ORR’s investigation found that WH Malcom failed to assess  the risk of unauthorised access into the depot as well as failing to implement appropriate measures to prevent unauthorised access to a part of the site where overhead lines were energised at 25,000 volts. WH Malcom were also found to have been regularly placing freight wagons under the electrified lines for prolonged periods of time, despite there being alternative unelectrified sidings where the wagons could have been safely stored. 

As WH Malcom had stored the freight wagons under the electrified lines for an extended period, they had enabled continued access to the electrified lines. Judge Lucking QC, presiding over the case stated that “In contesting this trial the defendant failed to take responsibility for a serious and obvious failing to allow public access to what is and was a dangerous environment”. This view was also echoed by Ian Prosser, Chief Inspector of Railways regarded it as an ‘avoidable tragedy’. For their part in Harrison Ballantyne’s death WH Malcom were fined £6.5m. They were also ordered to pay  the full Prosecution’s costs of £241,463.60 and a victim surcharge of £120.

£1m fine following fatal explosion

Robert Cranston, a maintenance contractor, was carrying out repair work on a mixing vessel during a planned period of shutdown maintenance when he was killed in an explosion on 27 July 2018.

It’s believed that while using a grinder or welding torch on the vessel, the heat from the tool ignited some Toluene vapour inside the vessel. Toluene residue had been left inside the vessel, which should not have been the case when maintenance work was being undertaken. There were also some leaks found in a Toluene supply pipe outside of the vessel which could have contributed to the blast. Prior to the incident on 27 July 2018, operatives had transferred a large quantity of Toluene from one storage tank to another through the supply pipe. It was thought that this action allowed flammable liquid to leak into the vessel.

Briar Chemicals Limited, owner of the site, admitted they had failed to take all necessary measures to prevent the explosion and pleaded guilty to a breach of Regulation 5 of the COMAH Regulations 2015 and was fined £1m and ordered to pay costs of £10,967.20. After the fines were issued HSE Inspector Frances Bailey, who led the investigation into the blast stated that ‘Any company handling or storing flammables should consider the potential risk of fire and explosion and ensure they have robust procedures in place to minimise and control risk at all times’.

Vue Entertainment fined following fatal incident involving electric footrest

On 9 March 2018, Ateeq Rafiq attended a VUE Cinema at Birmingham’s StarCity. Mr Rafiq could not find his keys and wallet at the end of the film. He looked under the seat, assuming they had fallen underneath. As he did so, the seat had a footrest mechanism which began to come down on him and lodged against his neck causing a brain injury. Tragically he died from his injuries a week later.

There was an inquest held into his death, which recorded a verdict of accidental death. However, Coroner Emma Brown highlighted that “If the seat had been fitted and maintained in the correct manner, Mr Rafiq would not have died”. This led to Vue Entertainment Limited being charged with two offences, one under section 2(1) of HSWA 1974 and one under the Management and Safety of Work Regulations 1999.

Diving instructor convicted following a death of a trainee during diving trip

Ashley Roberts, sole director of Ash Roberts Technical Limited, was training William Peace and Richard Heppell for a 148ft dive to the wreck of a German mine laying submarine off the coast of Dunbar which sank in 1916. During the dive on July 8, 2017 Mr Peace got into difficulties at a depth of 130ft to 144ft and soon became unresponsive. Mr Peace’s body was later recovered by police.

An investigation by the HSE into Mr Peace’s death found that Mr Roberts had:

• failed to conduct a suitable assessment of the competence of the pupils prior to 
  the dive
• failed to verify the number of rebreather hours Mr Peace had completed during his 
  previous dives and
• failed to check Mr Peace’s rescue ability.

Mr Roberts pleaded guilty at Edinburgh Sheriff Court to breaching Section 3(1) and Section 37(1) of the HSWA. In his ruling, Sheriff Roderick Flinn noted that Mr Roberts ‘cooperated fully with the police, gave prompt instructions to his agent and agreed a plea as soon as the detailed terms of that plea had been adjusted by those advising him. On that basis he should have the benefit of the full one-third discount.’ This left the fine issued to Mr Roberts at £2,300.

This may seem like a nominal fee in a case which resulted in a man’s death. However, the court was made aware that Mr Peace was suffering from ‘significant coronary artery disease’ at the time of his death and Mr Peace’s cause of death was recorded as ‘death whilst diving in a man with coronary artery disease’, rather than drowning. This coupled with the Sheriff Roderick Flinn’s assessment that Mr Robert’s ‘failures did not cause or  contribute to the injury or death’ impacted on the level of the fine that was issued.

In any event, even in cases where the breach is considered to be causative of a death, the Court will take into account the financial means of the Defendant as one of the factors when determining the appropriate level of fine. The Courts will, therefore, often stress that the level of fine that is imposed is not intended to be any way commensurate to the actual or perceived outcome of a breach.

In response to the sulphur dioxide exposure, AH Worth Limited modified the line in order to prevent any further sulphur dioxide exposure. However, the modifications exacerbated the issue by blocking up the nozzles on the line. This resulted in more sulphur dioxide exposure to both the workers and maintenance engineer who was tasked with modifying the line. The factory had to be evacuated and other workers in the vicinity were also affected. The maintenance engineer and one other worker were so badly affected that they were unable to return to work due to the effect of the exposure to the gas on their lungs.

• various workers had been aware of inappropriate behaviour by Mr Albert Caballero, 
  but no reports were recorded
• the company had failed to make a suitable and sufficient assessment of the risk Mr Caballero posed to female employees
• the company failed to identify and implement measures to mitigate the risks when providing support to Caballero at his home.

Since the attack, the company has implemented a new lone-working policy and support workers have been given smartphones to enable communication and track their location. It’s hoped that these changes would prevent an incident like this happening again. 

However, the Head of the Health and Safety Investigation Unit, Alistair Duncan stated that  “the company could have prevented this if they had carried out a suitable and sufficient assessment of the risk posed to female employees” and that “this prosecution should serve as a reminder to all employers that failure to establish the necessary measures and policies can have serious consequences”

Care homeowners plead guilty to corporate manslaughter following death of resident left with severe burns from a scalding hot bath

The owners of a care home where a 93 year old woman died after being scalded in a bath have been fined £1.04m by honourable Mrs Justice Thornton, who also handed suspended prison sentences to its former manager and one member of staff. Frances Norris, died in February 2015 after developing bronchopneumonia following the incident at the Birdsgrove Nursing Home in Bracknell, Berkshire. The Royal Courts of Justice heard how the care workers had lifted Mrs Norris into the bath, but she had complained about the water being cold. The workers then added more hot water but 
failed to realise how quickly the temperature of the bath would rise.

By the time they became aware of how hot the bath had become Mrs Norris had sustained severe burns. The court also heard that both workers bathing Mrs Norris had not received any training in bathing patients. The situation was made significantly worse when the owners of the home, Aster Healthcare, provided falsified water temperature records and a false record of the  thermostatic mixing valves service history to the Care Quality Commission and the HSE during their investigations. HHJ Thornton stated that the former care home manager was ‘unqualified’ for her position and was ‘out of her depth’.

Nursery fined £800,000 following death of child who choked on food

An 11 month old boy, Fox Goulding, was eating mango at a nursery in Edinburgh when he choked whilst he was left unattended. A care worker returned from the bathroom and mistakenly thought he was sleeping. After realising he was not breathing, staff tried to remove the blockage, began attempts at CPR and called an ambulance. The paramedics who attended were able to remove the piece of mango and transported the boy to 
hospital, but he tragically died the following day.

A subsequent investigation established that workers at Bright Horizons Corstorphine Nursery failed to have appropriate instruction and training in supervision of mealtimes and to address the risk of children choking. During sentencing at Edinburgh Sheriffs Court, it was confirmed that the procedures which were in place at the nursery were not sufficiently adhered to and there was a high turnover of staff. There had also been two previous “near misses” which had not led to changes being implemented.

Bright Horizons Family Solutions Ltd issued an apology expressing their heartfelt condolences to Fox’s family. They also confirmed that their policies and procedures had been reviewed and all of their Scottish staff had received additional training.

Landlords prosecuted for fire safety breaches

Two landlords have recently felt the full force of the law for breaching the Regulatory Reform (Fire Safety) Order 2005 after receiving suspended sentences and heavy fines.

In both cases it was found that no fire-risk assessment had been carried out, which made safe evacuation of the residents difficult. Failing to carry out a fire-risk assessment not only increases the risk of serious injury to the residents but ‘also poses a heightened risk to firefighters who are already doing a dangerous job’ stated Pat Jennings, The London Fire Brigade’s Assistant Commissioner for Fire Safety.

In that case, landlord John Kyriakides was prosecuted following an extensive fire in a four-storey building. Two women had to be rescued from a second floor flat by the Fire Brigade and other residents were forced to evacuate via a smoke-filled staircase resulting in treatment for smoke inhalation. The fire took 70 firefighters and 10 fire engines to control and resulted in the destruction of half of the four-storey building. Following a plea of guilty to the charges, a fine of £20,000 was imposed, together with a term of imprisonment of two months suspended for 12 months and an order to pay prosecution costs of £11,500.

In another case which was heard in Derby Crown Court, landlord Thirunavukkaradu Kulandaisamy, pleaded guilty to fire safety charges following various failings identified by Derbyshire Fire and Rescue service including insufficient fire doors, ineffective fire alarms and faulty emergency lights. In that case, the Court imposed a fine of £50,000, a term of imprisonment of nine months suspended for two years, prosecution costs of £22,861 together with a victim surcharge of £156.

• Dr Monks purchased the Snooty Fox Pub in Lowick, Northamptonshire in 1997
• one night in 1998, Dr Monks asked a ‘prominent solicitor’ to leave the pub and she subsequently alleged she had suffered food poisoning from the pub and reported this to the ENC
• the ENC’s chief executive, who was reported to have been a sexual partner of the solicitor, ultimately made the final decision to prosecute Dr Monks, which eventually saw him convicted
• on conviction in 2000 Dr Monks was fined £13,500 and ordered to pay costs of £8,300. He subsequently spent two months in prison in 2003 when he was unable to pay
• Dr Monks’ conviction was overturned by the Court of Appeal in 2015, following a referral from the Criminal Cases Review Commission
• Dr Monks subsequently brought a civil claim in the High Court for abuse of process in 2019, alleging ENC had pursued a vendetta against him through the courts and this amounted to abuse of process.

North Northamptonshire Council, which took over from the ENC, has now agreed to compensate Dr Monks and apologised for ENC’s actions in a statement in open court. North Northamptonshire Council’s leader Jason Smithers also went on to say that ‘it is very different state of affairs these days’. Dr Monks, who was housed at a category A prison during the ordeal said, ‘it had been an absolute nightmare’ and welcomed the settlement.

Environmental

Biffa fined £1.5m following export breaches

Biffa, the UK’s largest waste company has been found guilty of four breaches of regulation 23 of the Transfrontier Shipment of Waste Regulations 2007 between October 2018 and April 2019. The waste company was ordered to pay a £1.5m fine, costs of £153,827.99, and a proceeds of crime order of £38,388.

The offences related to rolling contracts to send vast amounts of waste to India and Indonesia and resulted in 1,000 tonnes of mixed waste labelled as paper being illegally exported. Investigators who discovered the offending waste recorded ‘a strong putrid’ smell and an ‘acidic aroma’ after they held sixteen 25-tonne containers at Southampton. 

When initially faced with prosecution by the Environment Agency, Biffa had argued that it was not in the public interest. Judge Shane Collery QC was not swayed by this argument and found the comments ‘aggravating and unattractive’. This is Biffa’s second conviction of this type in recent years and exports about 100,000 tonnes of waste from its Edmonton site.

Yorkshire Water Service admits illegal sewage discharge

Utility company Yorkshire Water Service limited has been fined £150,000 and ordered to pay £36,506.35 in costs for illegally discharging sewage into the Potter Carr Nature Reserve. The utility company pleaded guilty to one charge of causing sewage sludge to enter a tributary of the Mother Drain and one charge of breach of permit conditions relating to levels of ammoniacal nitrogen in treated sewage effluent.

The ruling at Sheffield Magistrates Court comes after a recent BBC Panorama investigation found that water companies in England and Wales have been dumping raw sewage into rivers illegally, with some breaching their permit conditions on a regular basis. Treatment plants like the Balby Sewage Treatment Works, operated by Yorkshire Water Service Limited can discharge water but only under strict conditions under a permit.

District Judge Redhouse found Yorkshire Water Services Limited to be had breached their permit and were “very negligent” in their breach of environmental regulations.

Man jailed for illegally storing and burning waste

On 2 August 2021 the Environmental Agency secured a conviction against Dominic Allen for two offences of operating a waste site without an environmental permit and three offences of burning waste. Mr Allen was sentenced at Newcastle Crown Court to 12 months in prison, ordered to pay £1,000 in costs and has 18 months to clear the site.

The Environmental Agency launched their investigation into illegal activity on the land next to Mr Allen’s property at Old Swarland, Northumberland in February 2020 after Northumberland Fire and Rescue Service attended a fire at the site. A statutory clearance notice was later issued in July 2020. Once the deadline had expired for that notice, the Environmental Agency blocked access and obtained a Restriction Order over the site.

In court, Mr Allen’s actions were said to be ‘deliberate, persistent and financially motivated, with all offences committed while Allen was on bail for other matters’. 

For these reasons Mr Allen was handed a custodial sentence by the presiding judge.

The Land Trust receives a £30,000 Enforcement Undertaking following sludge spread

The Environmental Agency has accepted an Enforcement Undertaking (EU) from Sanderson Environmental Limited, who spread excessive amounts of sewage sludge on land near Doncaster, contrary to the Environmental Permitting (England & Wales) Regulations 2016. In response to the sewage spread Sanderson environmental Limited have agreed to pay costs of £8,137.36 and have made an EU in the form of a £30,000 donation to the Land Trust.

An EU is an alternative sanction available to the Environmental Agency and prevents the need for a monetary fine to be issued against the offending company. A spokesperson for the Environmental Agency stated that the ‘Agency is increasingly using this method of enforcement where there is opportunity to restore and improve the environment, change behaviour and improve practices of the offender’.

Round-up

New Allergen Regulations come into force

In October 2021, the Food Information (Amendment) (England) Regulations 2019 came into force bringing with it an overhaul of allergen regulations. The key changes relate to all foods that are packaged in the same place it is sold to customers on site (prepacked for direct sale). These foods that are prepacked for direct sale must now have an exhaustive list of all ingredients, with a list of 14 allergens that must be emphasised on the label, if present in the food.

These changes in the law, known as “Natasha’s law”, were brought in to safeguard the estimated 2m people in the UK living with food allergies and followed the high-profile death of Natasha Ednan-Laperouse in 2016 who had a fatal allergic reaction after eating a sandwich which had sesame seeds baked into the bread.

The Food Standards Agency has issued extensive guidance to aid in compliance. As such, businesses should be well aware of these changes and have adapted their procedures to safeguard customer safety.

• carry out casual or irregular work for one or more organisations
• only carry out work if they choose to
• are not in a business for themselves.

The HSE highlights that the precise status of each worker should be considered by reference to the individual circumstances for each worker. The changes do not apply to those who have “self-employed” status.