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R v Switchgear Engineering Services Ltd, Court Of Appeal (Criminal Division), 10 October 2007

21 November 2007
The issues

Health & Safety – Health & Safety Executive – appropriate penalty for breach of the Health & Safety At Work Act.

The facts

Three companies were involved in this matter. Company A had contracted with company B, which was a major steel manufacturer, to carry out maintenance of heavy duty, on site machinery. Company A decided that in respect of certain equipment the work was specialised and asked Switchgear Engineering Services Ltd to undertake that part of the work on a sub-contract basis. Two engineers were provided by Switchgear Engineering Services Ltd. The two engineers were given no method statement or any supervising officer by Company B, as would normally have been the case. They were left to their own devices. They were given no signs or warnings by personnel on site. At one point, one of the engineers stood too close to a rear bus bar and was fatally electrocuted. Switchgear Engineering Services Ltd pleaded guilty to contravention of the Health & Safety At Work Act in failing to ensure, so far as reasonably practicable, the welfare, health and safety at work of its employees, contrary to Section 2(1). Company A and Company B, also pleaded guilty to contravention of Section 3(1) of the Act. Both companies received fines of £100,000.00. The Judge found that they were more proximate to the accident and bore 40% responsibility each. 20% was apportioned to Switchgear Engineering Services Ltd. Switchgear Engineering Services Ltd were fined £35,000.00. They appealed.

The decision

Switchgear Engineering Services Ltd argued, amongst other arguments, that the Judge had failed to take sufficient account of their limited means in comparison with the other companies, which were multi-national companies, and that he had placed too much apportionment on liability rather than culpability.

The Court had seen draft accounts for the most recent financial year, disclosing an operating profit significantly lower than for previous years. Switchgear Engineering Services Ltd was a well run local business. The Judge had placed too much emphasis on liability and not enough attention to the issue of culpability. The Judge should have considered not merely culpability but also Switchgear Engineering Services Ltd’s financial means. In whatever way the penalty was assessed it was too high with regard to culpability and the respective means of the companies. Switchgear Engineering Services Ltd had cooperated with the Health and Safety Executive and had entered a guilty plea. A fine of £10,000.00 would be substituted and the prosecution costs of £30,000.00 reduced to £10,000.00.

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