Peter Smith in H&S case concerning the Control of Vibration at Work Regulations

R (HSE) v. OH LTD: Liverpool; 3rd December 2020

The prosecution concerned hand arm vibration conditions which eventuated in 4 men who worked in the maintenance departments at 2 distinct employers who were subsequently the subject of TUPE. ON Ltd therefore stood in the shoes of the former entities for the purpose of the proceedings.

There were 3 charges under regulations 5(1), 6(1) and 7(1) of the Control of Vibration at Work Regulations 2005.

ON is a Housing Association, and a charitable organization. Its turnover for the last year was £99.7 million, with a surplus (not profit) of £14 million. ON was therefore a ‘Large’ organization for the purposes of the Guidelines applicable.

The HSE put the case at ‘High’ culpability; Harm at ‘Level B’; with a ‘Medium’ likelihood of that harm eventuating, thus Harm Category 3.

In sum, the starting point is £540,000, with a range between £250,000 and £1,450,000. Since harm was caused, the prosecution invited the court to move up a harm category or within the range.

ON had to accept that if the two previous employers had been before the court, culpability would be ‘High’, though submitted that the nature of the liability needed to be considered in the round when at Step 3. Those previous employers had much smaller turnovers and surpluses.

It was submitted that since the HAVS conditions were of a complex nature, analogy could be drawn with the case of R v. Squibb Group Ltd [2019] which concerned asbestosis. Both were predicated upon exposure levels over periods of time. Accordingly, there was an evidential gap on the prosecutions part to support a ‘Medium’ likelihood. The court could not guess at how likely the conditions would develop, and therefore, a ‘Low’ likelihood was the only just classification at Harm Category 4.

In the result, following detailed submissions, the court took a starting point of £250,000. This was reduced to £180,000 for the cogent mitigation. There was a further adjustment down to £120,000 under Step 3, taking into account the charitable status / public utility submissions, and the impact of Covid 19.

Applying credit for the guilty plea, a fine of £80,000 was imposed on one charge taking into account the related nature of the charges, and the Totality principle.

Instructed by Louise Roden & Peter James at BLM, 30 Fenchurch St, London EC3M.

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