Cardiff Crown Court last Friday saw the sentencing of the defendant in a case relating to a yard gate the main hinge of which had failed crushing a delivery driver, Mr Ronald Hayward. A sentence of £500,000 was imposed following a very early guilty plea; costs of £108,625.85 were also awarded.
The Defendant, AF Blakemore and Son Limited, represented by Richard Matthews QC, had pleaded guilty at the earliest opportunity to an offence of breaching health and safety regulations contrary to s.33(1)(c) of the Health and Safety at Work etc. Act 1974. The particular regulation concerned was that requiring a workplace and its equipment to be "maintained in an efficient state, in efficient working order and in good repair" (Regulation 5(1) of the Workplace (Health, Safety and Welfare) Regulations 1992).
Where lorries make deliveries to secured yards, substantial manual gates are frequently found and the gate in this case was over 300 kg. Unlike powered gates which have their own HSE guidance, these enormous gates however are subject to the general application of health and safety law.
The actual failure in the case was of the upper hinge which had been the subject of inadequate repair work by a contractor some 7 years before. The contractor had advised that the gates be replaced and there was no evidence that this had been considered or acted upon by Blakemores.
There were two particular points of interest. The first was whether on the facts the gate should have been the subject of proactive maintenance such as regular inspection or whether it was sufficient to await any issues with the gate being raised by those handling it. The judge decided placing reliance upon the relevant Code of Practice that reactive regime was not sufficient and that the gate should have been subject of inspection, particularly where Blakemores had been put on notice that the gates needed review.
Second, whilst this year's new sentencing guidelines relate fines for such cases specifically to the turnover of the defendant, little real help is given in relation to very large companies. Whilst great detail is give for those businesses in the categories of up to and including those with a turnover of over £50m, the guidelines simply state, following the Sellafield case, that:
"where an offending organisation's turnover "very greatly ... exceeds the threshold for large organisations, it may be necessary to move outside the suggested range to achieve a proportionate sentence".
Bearing in mind that Blakemores' turnover was over £1bn, the Judge questioned whether the right course was to put the case within a higher bracket of harm or culpability. Ultimately he concluded that the result was not proportionate and he chose to fix what he regarded as the correct starting point of £900,000 which was subject to a discount of one-third with a further reduction reflecting the high level of experts' costs.
Anthony Vines represented Newport City Council. Any further enquiries can be addressed to the clerks on 08450 713007.