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Peter Smith persuades court to impose a conditional discharge on a sole director following an employee falling from a tower scaffold sustaining a broken neck

Peter Smith persuades court to impose a conditional discharge on a sole director following an employee falling from a tower scaffold sustaining a broken neck.

R (HSE) v. (1) Trueline Engineering Services Ltd & (2) Mr Paul Smith; Liverpool: 17th December 2018

The HSE decided to prosecute the sole director of the company pursuant to section 37(1) of the HSWA 1974, for like offences committed by the company under section 2(1) of the 1974 Act, and a RIDDOR breach.

An employee fell from a partially erected tower scaffold which he was using to undertaking welding work; he sustained a broken neck.

The director was responsible for health and safety, very much ‘hands on’ with work and the day to day running of the company. Some employees had received the basic training in the erection and dismantling of the scaffold, others had not, including the injured employee.

Following submissions, the judge accepted that the company and the director were inextricably linked, and especially so in terms of the income derived by both. Moreover, it was difficult to distinguish between them, even though the Guidelines did, and penalties differed.

In the result, the judge accepted that, leaving the Totality Principle aside for a moment, finding that the custody threshold had not been crossed, to impose a fine on the director as well as the company, would amount to the director being punished twice.

Accordingly, the judge was persuaded that a discharge was appropriate for the director and imposed a 12 months conditional discharge, with the company receiving a modest fine.

The injured employee was deemed fit for remunerative employment after 18 months.

Comment: The HSE’s decision to prosecute the director was questionable. Since 2013, the test of ‘proportionality’ has been a codified factor in any decision to prosecute. Whilst the director was responsible for health and safety, the circumstances did not lend themselves to separate financial penalties, a community order or imprisonment, suspended or otherwise. Precious time and money had been spent pursuing the director who, together with the business, had been operating for several decades, and without any previous convictions or enforcement history against them.

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