James Thacker prosecutes New Earth Solutions Group in Health & Safety case after worker dies

On 9^th August 2014, Neville Watson was employed as a cleaner and labourer at the NES Kent Limited site at Blaise. He was a respected employee who was keen to progress and commenced shredding waste using a vehicle with a secure cab to load the waste into the shredder. He received some instruction on how to use the shredding machine the day before. Ordinarily he would not have left the protective environment of the cab in performing that activity however the significant issue in the case was a remote control which was usually used to operate the shredder. That particular device was not available because it had malfunctioned and was sent back to Germany. No risk assessment was carried out on how to deal with the activity in the device’s absence. It had been absent for 7 to 10 days. The stockpile within the reception hall where waste was sorted and shredded collapsed and buried Mr Watson. Despite efforts to rescue him he was tragically asphyxiated.

The company pleaded guilty to breaching the Health and Safety at Work Act 1974. The risk was working in proximity to a stockpile that was not suitably managed. At the time of the tragedy there was no safe system of work in place, a lack of effective training, lack of supervision, and no risk assessment or safe system in place in relation to exiting the vehicle when the remote control was not in use.

This case presented an unusual and novel point of law; whether the Sentencing guidelines for Health and Safety Offences, Corporate Manslaughter and Food Safety and Hygiene offences which apply to those who are sentenced on or after 1^st February 2016 regardless of the date of the offence apply to a company, which subsequent to pleading guilty, were placed into administration, and if the guidelines do apply, whether to sentence the defendant company upon turnover prior to entering administration or as a company effectively insolvent and to be wound up.

HHJ Statman, sitting at Maidstone Crown Court, heard the prosecution opening, mitigation and oral submissions on 5^th August 2016 but adjourned the sentencing hearing part heard until 7^th November 2016 for further information from the administrators and to allow time for the Court of Appeal to deliver judgment in another Health and Safety case. He found as a matter of fact that the risk was obvious and foreseeable especially as the prosecution had pointed to a document entitled ‘Stockpile Management and Fire Prevention’ which alluded to stockpile instability, and the protection of the secure environment of the cab coupled with a remote control device. He also found that the company’s culpability came just within the medium bracket but the harm was at the highest level of A but was uplifted as the offence was a significant cause of actual harm. Ordinarily the starting point for a company not in administration and with a turnover of £37million would be £600,000 with a range between £300,000 and £1.3million. However, the learned judge had regard to the company’s current financial circumstances and applied the micro company figures fining the company £80,000 reduced from £120,000 to reflect an early guilty plea. Costs in the case were also awarded.

James Thacker prosecuted on behalf of the Health and Safety Executive. He was appointed to the Regulatory list in 2012 entitling him to prosecute on behalf of the HSE, ORR and Environment Agency.

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