This page contains information that has appeared on Sandy Adirondack's legal update website for voluntary organisations at www.sandy-a.co.uk/legal.htm. For current updates, including potential changes that are in the pipeline, see the legal update website.

These websites for each chapter update the 3rd edition of The Russell-Cooke Voluntary Sector Legal Handbook by James Sinclair Taylor and the Charity Team at Russell-Cooke Solicitors, edited by Sandy Adirondack (Directory of Social Change, 2009). The websites are not intended as a comprehensive update and should not be treated as such.

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Chapter 22
RISK AND LIABILITY

FIRST CORPORATE MANSLAUGHTER CONVICTION

Updated 25/5/11. This information updates s.22.3.1 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
R v Peter Eaton and Cotswold Geotechnical Holdings Ltd, the first trial under the Corporate Manslaughter and Corporate Homicide Act 2007, ended in Bristol crown court on 17 February 2011 when Cotswold became the first company to be found guilty under the Act. The case concerned a geologist, Alexander Wright, who was killed when a trench where he had been taking soil samples collapsed. On 11 May 2011 the company lost its appeal against conviction.

A charge of corporate manslaughter (called corporate homicide in Scotland) can be brought against an organisation, where a person is killed and there has been gross failure by senior management. This could include gross failure to ensure safe working practices, safe premises, safety for consumers or members of the public, or any other serious breach of duty of care.

Under sentencing guidance published in February 2010, the minimum fine for an organisation convicted of corporate manslaughter is unlikely to be less than £500,000 and could be millions of pounds. Although Cotswold geotechnical's annual turnover was only £333,000 in 2008 when Wright was killed, it was fined £385,000, but will be allowed to pay this at £38,500 per year for 10 years.

In addition to a corporate manslaughter charge brought against the organisation, a manslaughter charge can be brought against an individual who kills someone through a grossly negligent act or omission (failing to do something), without intending to kill them, and individual employees, managers and in some cases governing body members can be fined or even imprisoned, and an incorporated organisation can be fined, for breach of health and safety or similar laws. And a person who has been injured, or the estate of a person who has been killed, can bring a negligence claim against an individual, manager, incorporated organisation or members of the governing body of an unincorporated organisation.

Cotswold Geotechnical faced not only the corporate manslaughter charge but also one for breach of the Health and Safety at Work etc Act 1974. Eaton, a director, was charged with gross negligence, manslaughter, and a breach of health and safety legislation, but a judge ruled in 2010 that Eaton was too unwell to stand trial for the charges against him as an individual, and asked the prosecution to consider whether the two different burdens of proof for the corporate manslaughter and H&S charges against the company might confuse a jury. The prosecution asked the jury to consider only the offence of corporate manslaughter.

The Crown Prosecution Service press release on the case is at www.cps.gov.uk/news/press_releases/107_11/.

For summaries and articles about cases, do a Google search on key words in the case name or content.
Go to archived items about health & safety (VSLH3 chapter 40)

RISK, LIABILITY AND THE SOCIAL VALUE OF ACTIVITIES

Added 25/5/11. This information updates ss.22.3.1 & 40.2.5 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
The House of Lords decision in Tomlinson v Congleton Borough Council & others (www.bailii.org/uk/cases/UKHL/2003/47.html) in 2003 introduced into negligence cases the concept of balancing the likelihood and potential seriousness of injury from an activity, against the social value of the activity. This was incorporated into s.1 of the Compensation Act 2006, which says that "a court considering a claim in negligence or breach of statutory duty may, in determining whether the defendant should have taken particular steps to meet a standard of care (whether by taking precautions against a risk or otherwise), have regard to whether a requirement to take those steps might prevent a desirable activity from being undertaken at all, to a particular extent or in a particular way, or discourage persons from undertaking functions in connection with a desirable activity".

This means that if a person is negligent or in breach of a statutory duty and as a result a person is injured, the court will be able to take into account that the activity was, for example, being run by a volunteer or a not-for-profit organisation — and that without the volunteers or the organisation, the "desirable activity" might not have taken place at all.

Some cases in recent years illustrate how this principle is interpreted — and sometimes reinterpreted — by the courts, or illustrate other factors taken into account in negligence cases or cases involving breach of health and safety law.

Charlotte Shaw, aged 14, was preparing for the Ten Tors training expedition in March 2007 when she fell into a swollen stream and drowned. Some of the 11 students in the group had asked for the trek to be stopped because of bad weather but it was decided it should go ahead. In the inquest into her death, considerable emphasis was given to the value of the Ten Tors, and the fact that this was believed to be the first death since the Ten Tors was started in 1960.

However, at the time of Charlotte's fall the three teachers accompanying the group were having breakfast at a cafe in a nearby town; for various reasons none of the teachers went to the checkpoints where the students were to have been met; there were no teachers with the students when they crossed the stream, although a passing Scout leader had stopped to help. The teachers, however, said that the students decided unanimously to continue the trek, and were told not to cross the stream.

The crown prosecution service decided there was not enough evidence to bring a manslaughter charge against Kingsley College, Bideford (called Edgehill College when Charlotte attended) and the two teachers who were overseeing the expedition. But Charlotte's mother is now bringing a civil claim against the school and one teacher, claiming they were negligent in their care. The case will be heard in the high court, probably in 2012, and the "social value" argument may be a factor.

Uren v Corporate Leisure (UK) Ltd and Ministry of Defence emphasises the importance of risk assessments. Taking part in an RAF fun day in 2005, Robert Uren dove headfirst into an inflatable pool with 18 inches of water, to retrieve pieces of plastic fruit from the bottom. Other competitors had done so safely, but Uren broke his neck, is now tetraplegic and sued the MoD and Corporate Leisure (UK) Ltd, the contractor who had supplied the pool.

The high court initially said that even though health and safety risk assessments had not been carried out, failure to do so did not in this case mean there was a breach of duty of care, because the danger of diving into a small pool was so obvious that participants should have acted accordingly, and the social value of the game outweighed the very small risk of injury. The court of appeal disagreed, and on 2 February 2011 referred the case back to a high court judge to reconsider the level of risk.

The original high court decision is at www.bailii.org/ew/cases/EWHC/QB/2010/46.html, and the court of appeal decision is at www.bailii.org/ew/cases/EWCA/Civ/2011/66.html.

In Scout Association v Barnes (www.bailii.org/ew/cases/EWCA/Civ/2010/1476.html), 13-year-old Mark Barnes was injured in 2001 in a game similar to musical chairs where the lights were turned off as the boys ran to grab wooden blocks. Even with the lights off the room was not in total darkness, and the Scout Association argued that risks from the game were balanced by its social value. The court of appeal disagreed, saying that turning off the lights increased the excitement of the game, but did not increase its social or educative value and thus did not justify the foreseeable risks.

When 25-year-old Gary Poppleton fell on a youth centre climbing wall, was paralysed and sued the centre, the high court found the centre was 25% liable for not warning him that matting at the foot of the climbing wall did not provide full protection against injury. The court of appeal overturned the high court, saying the centre was not liable, because it should be obvious to adults who engage in such activities that there is a degree of unavoidable risk, and that matting cannot completely protect against possibly severe injury.

The court of appeal decision in Trustees of the Portsmouth Youth Activities Committee (A Charity) v Poppleton is at www.bailii.org/ew/cases/EWCA/Civ/2008/646.html.

In a case brought by the Health and Safety Executive against John Summerfield, former headteacher of a sixth form college in Liverpool, the crown court accepted that his motives were well intentioned — but this could not override his ignoring the risks of his actions. At an end of term party celebrating A-level results, Summerfield took a dozen students, who the court said were "possibly slightly inebriated", onto the roof of the school to look at new buildings. Although he warned them about a skylight, student Joel Murray fell through the skylight, resulting in a fractured skull, several broken ribs, a perforated eardrum and damage to both eyes. Summerfield was fined £20,000 and ordered to pay £22,000 legal costs for ignoring, in breach of the Health and Safety at Work etc Act 1974, the school's rule that the roof was off-limits.

In another case brought by HSE, Mental Health Matters, based in Sunderland, was fined £30,000 and ordered to pay £20,000 costs in February 2010 after employee Ashleigh Ewing was stabbed to death by a service user in 2006. The charity admitted it knew the service user had a history of violence and refusing to take his medication and knew his mental health was deteriorating, but Ewing was sent to visit him at his home on her own, on the last day of her six-month probationary period. It was acknowledged that even if risk assessments had been carried out Ewing might still have been killed, but the likelihood could have been reduced. HSE's head of operations said, "This is an unusual case which shows the need for employers to assess risks to employees who visit individuals in their homes and for arrangements to be revised when changes occur. We believe that if Mental Health Matters had carried out a risk assessment, it would have resulted in the visiting arrangements being reviewed."

Following the case, HSE made the point that working alone is not in itself against the law, but the law requires employers and others to think about and deal with any health and safety risks before people should be allowed to work alone. HSE's guidance on lone working is at www.hse.gov.uk/pubns/indg73.pdf. The TUC also has a guide to lone working, at ww.tuc.org.uk/h_and_s/tuc-17252-f0.cfm.

For summaries and articles about cases, do a Google search on key words in the case name or content.
Go to archived items about health & safety (VSLH3 chapter 40)

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