On 29 May 2008, Andrezej Freitag, an employee of Discovery Homes, fell down a smoke extraction shaft adjacent to a stairway on a construction site operated by his employer. His injuries due to this fall resulted in his death.
Discovery Homes were charged under sections 2(1) and 33(1)(a) of the Health and Safety at Work Act 1974. Mr Pratt, the company director, was charged under section 37(1) of the Act as having consented to or connived in that offence or it having been attributable to his neglect. The respondents had failed to provide adequate protection, such as a barrier or a guard-rail, so as to prevent anyone falling down the smoke extraction shaft.
The case was appealed by the Crown solely on the grounds of leniency of the fines imposed at first instance - £5,000 for the Company and £4,000 for the Director.
The Company turnover for the year to September 2008 was approximately £2.9 million and the accumulated profit was approximately £283,000. The trial Court had disposed of the case stating he regarded the offence as very serious and stating "in the normal course, I would have imposed upon the respondents a very substantial fine." The judge had difficulty in doing so due to the perceived financial worth of the Company. From the information that had been provided to him, he considered that a "substantial fine would almost inevitably result in the respondents falling into administration or liquidation."
The Crown, on appeal, was able to provide a great deal of additional documentation with regard to the financial affairs of the Company. At appeal, the Court, whilst stating that the trial judge's reasoning with regard to the gravity of the offence was sound, stated that the trial judge had not taken into consideration many aspects of the finances of the business. The Court was satisfied that the Company could meet a far larger fine and duly imposed a fine of £40,000 allowing application for time to pay. The Court was not persuaded, however, that the amount of £4,000 imposed on the director was unduly lenient taking into consideration his monthly income.
The new fine represents a far larger percentage of turnover and of profit in respect of the Company, being approximately 14% of profit. The fact that the Crown is appealing health and safety cases where fines are perceived to be too low is significant. The trend is increasing and the Appeal Court appear to be supporting the Crown's view that fines should be higher.
This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to www.law-now.com/law-now/mondaq
Law-Now information is for general purposes and guidance only. The information and opinions expressed in all Law-Now articles are not necessarily comprehensive and do not purport to give professional or legal advice. All Law-Now information relates to circumstances prevailing at the date of its original publication and may not have been updated to reflect subsequent developments.
The original publication date for this article was 27/05/2010.