Peter Smith defends in health & safety case before HHJ Conrad QC in Liverpool Crown Court

R (HSE) v. ESL Fuels Limited; Liverpool Crown Court – HHJ Conrad QC 2017

This prosecution came about due to an incident which took place at the Stanlow Oil Refinery on the 19^th January 2015.

ESL is a blender and supplier which specialises in the manufacture and trading of innovative fuel products for the road, heating, heavy duty haulage and marine markets.

In 2014 ESL wished to undertake a process of treating waste oil so as to arrive at a re-saleable product within the bounds of its waste permit from the EA and in compliance with the sites status as a lower tier COMAH business.

As part of the ongoing maintenance and up-grading programme which ESL was committed to, it undertook a substantial refurbishment of the site, including its tank farm. The refurbishment involved tenders from specialist sub-contractors. One of the sub-contractors who won a tender had worked at the site previously and the two men tasked with pipe replacement work were extremely familiar with the site, the personnel, practices and procedures.

ESL had a long standing Permit to Work system (PTW) which had been reviewed and revised. Unfortunately, ESL’s PTW Issuer on the 19^th January 2015 was not privy to conversations which the two employees of the specialist sub-contractors had had with key personnel of ESL as to work on a different tank which was linked to the tank covered by the PTW. ESL’s PTW Issuer understood that the work was a continuum.

The PTW was issued and the sub-contractors used a hand grinder on a blanked off pipe which contained residue gas. The sparks from the grinder ignited the gas which resulted in the top of the tank being blown out. No person was injured and the only two people at the tank farm were the sub-contractors who were well away from the blast.

ESL faced charges under sections 2 & 3 of the Health & Safety at Work Act 1974. The prosecution accepted that the section 2 breach did not aggravate the section 3 offence; the incident coming about due to one event only.

ESL was a medium sized organisation though with a relatively small profit margin.

The prosecution submitted ‘High’ culpability, Level A Harm and ‘Medium’ likelihood of the harm eventuating. Therefore the bracket contested was £220,000 to £1,200,000 with a starting point of £450,000.

Given that there was a system in place for PTW, there having been around 4,000 issued over a three and a half year period with communication between the sub-contractors and other key personnel breaking down; ‘Low’ culpability was argued on the basis of the definition within the guidelines. Level A harm was easy to put but likelihood of harm eventuating could also be argued as ‘low’ given the fact that only a limited number of men were present.

It was submitted that whilst this gave a bracket much lower with a £60,000 top end, the Guidelines were not to be adopted in a ‘ready reckoner’ manner.

In the result, given the guilty pleas, absence of any previous convictions, enforcement history, cogent mitigation and the isolated nature of what took place, the judge found ‘Medium’ culpability with harm category 2 but, as submitted, should be at the very bottom of the bracket below the suggested starting point. A fine of £100,000 was imposed together with costs.