Prosecuting ‘near miss’ incidents and fines under new health & safety Sentencing Guidelines

Commentators are unanimous in predicting larger fines for health & safety offences following new sentencing guidelines effective from 1st February.  

However, the guidelines are not just about bigger fines. They also require the Court to look at the risk of harm, not just the outcome. This means a minor injury or “near miss” which could have been fatal or cause life changing injuries will now attract a much higher fine than before.

Two “near miss” incidents have recently been sentenced. Conoco Phillips involved a fine of £3 million being handed out just days after the guidelines came into force. Conclusions about the new guidelines should not however be drawn as the case had been adjourned from 22nd January and the judge declared he was not bound by them. The judge sentenced the incident as a serious near miss in which he considered seven lives were put at extreme risk. The Defendant was an oil multinational with a turnover of £4.8 billion, so a large fine was called for even before the guidelines. The judge also did not need to rely on the guidelines to justify a big fine for a near miss, as it had already been decided in another case that a “Court does not have to wait until a death or serious injury has occurred to express its displeasure at wholesale breaches of the Defendant’s responsibilities under the law”.

However, the guidelines were very much in force when the second near miss case was sentenced on 8th April. Kent company M J Allen Holdings was fined £160,000 after a maintenance employee’s foot slipped while he was working on crawling boards on a factory roof. Fortunately, the only injury was to the roof. However, the Court identified the obvious potential for death or life limiting injury and a medium likelihood of this occurring. This placed it in harm category 2 under the guidelines

Also sentenced in April were C. Smith & Sons and Building and Dismantling Contractors Limited. In that case CS&S contracted BDCL to dismantle a warehouse roof. BDCL employee Scott Harrower nearly fell through a skylight but managed to steady himself. The following day another workman did fall through a skylight, suffering multiple fractures. Police and paramedics attended, but amazingly work recommenced and hours later
Mr Harrower fell 30 feet through another skylight, sustaining fatal head injuries. The proprietor of BDCL was jailed for six years for gross negligence manslaughter and fined £400,000 plus costs. The proprietor of CS&S was jailed for 8 months
and fined £90,000 plus costs.

This case shows starkly why management should take a “near miss” just as seriously as a real accident, otherwise next time that is probably what it will be – and failing to act on previous incidents is likely to attract a high or very high culpability fine under the guidelines.

For a more detailed commentary on the sentencing guidelines please see our February article New Sentencing Guidelines
for Health and Safety Offences – Crime Should Not Pay on the health & safety pages of our website

Andrew Clarke can be reached at