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Did you Know?

Published: 23/12/13

Ken Wright, Head of Broker Development for Axa produces a regular feature called Did You Know? In this one he discusses Corporate Manslaughter – admittedly not a very cheery subject, but hugely important to all types of firm nonetheless.

Offences under the *Corporate Manslaughter legislation have increased by 40%, with around 96 cases being listed for potential investigation by the Police and Crown Prosecution Service. **In addition AXA together with other Insurers (and Brokers) have been required to release underwriting and risk survey files to the Police following the serving of warrants to assist in their investigations (to ascertain the level and timeframe of senior management risk awareness)

The current guidance on levels of fine following a corporate manslaughter conviction is £500,000 under the sentencing guidelines. However successful prosecutions to date have seen varying levels of fines imposed. In most cases the fines have fallen below the suggested guideline in order to reflect the financial health of the defendant, but there is absolutely no guarantee that a court will adopt this in future cases.

Cotswold Geotechnical (Holdings) Limited was the first to be charged with corporate manslaughter and was fined £385,000 in February 2011.

JMW Farm Limited was fined £187,500 in May 2012 followed by Lion Steel Limited***who were fined £480,000 in July 2012.

*** In this case, the Broker’s documentation was taken under warrant with the broker being cross examined in court over the actions they took regarding the deficiencies in the risk (risk requirements identified via survey but case moved by Broker at renewal – risk requirements not completed).

The following illustrate the fundamental importance of a suitable and sufficient policy being embedded irrespective of size and that the policy is also monitored continuously by a strong health and safety management culture which extends from the boardroom to the operative end of the business.

  • Mobile Sweepers (Reading) Limited was charged with corporate manslaughter in March 2013 in relation to the death of an employee who was working on a repair underneath a road-sweeping truck.
  • • ·Princes Sporting Club Limited was charged with corporate manslaughter and an offence under section 3 HSWA (failing to ensure that persons not in their employment are not exposed to risks to their health and safety, and/or failing to give information relating to such risks) in February 2013 over the death of an 11 year old who was struck by the speedboat that had been towing the banana boat she was riding.
  • MNS Mining Limited was charged with four charges of corporate manslaughter in January 2013 following the deaths of four of its colliery workers. The manager also faces four counts of gross-negligence manslaughter.
  • • PS & JE Ward Limited was charged with corporate manslaughter and an offence under section 2 HSWA (see above) in November 2012 after an employee was electrocuted when the metal hydraulic trailer he was towing touched an overhead power line.

Good robust annual pre-planned and documented Health and Safety Program checks and active monitoring is critical in ensuring the safety of all employees and the continued wellbeing of the organisation in order to avoid any serious legal consequences.

*Corporate Manslaughter and Corporate Homicide Act 2007 is a landmark in law. For the first time companies can be found guilty of corporate manslaughter as a result of serious management failures resulting in a gross breach of a duty of care.

**Information is usually requested initially by the investigating Police Force under the Fatal Accident at Work Protocols which AXA tend to initially decline until the request is properly channelled through the appropriate Data Protection forms under the Data Protection Act 1998 Section 29 (3) Crime Exemption, or by issue of formal warrant for seizure of all information. We also check with claims to ensure that we are not impacting the civil litigation situation. AXA have had approaches for information and reports from HSE Inspectors following up serious (non-fatal) accidents and injuries which we have declined so far on the basis that these would be damaging to EL claims defence.

 

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