Practice and Procedure


PUBLISHED February 26, 2003

A fine totalling ?100,000 for health and safety at work-related offences was reduced to a total of £55,000 on appeal after taking into account: (i) the offending company's culpability; (ii) the extent of any criminal default; and (iii) by reference to the mitigating and offending factors contained in F Howe & Son (Engineers Limited (1999) 2 All ER 249.Appeal by a company, Yorkshire Sheeting, ('Y') against a sentence imposed after a guilty plea had been entered in York Magistrates' Court on 14 February 2002 to an offence under s.3(1) Health and Safety at Work Act 1974. A self-employed roof sheeter ('P') had fallen through a roof whilst working on a warehouse and had died from the injuries that he had sustained. P had worked in a self-employed work gang for a principal who had worked exclusively for Y. Totty Building Services Limited ('T') had been employed as a main contractor to undertake building restoration and remedial work of the warehouse. T had employed Y, a specialist roof company, as a subcontractor. The particulars of the charge against Y were that, "the partial re-sheeting of the roof of the premises was not conducted in such a way as to ensure, so far as reasonably practical, the safety of persons not in your direct employment, namely the sheeters engaged to carry out the work who were exposed to the risk of falls though the roof". T had been charged in a similar way and both companies had pleaded guilty to the offence. Y was fined £100,000 and ordered to pay a proportion of action's costs. T was fined £10,000 and ordered to pay a significantly lesser proportion of the costs. Y had prepared the requisite method statement and risk assessment for the works. They were submitted to and approved by T. The assessment had stated that "A specialist subcontractor will erect the safety nets to the entire warehouse. The risk rating as to the potential severity of any fall and the potential risk of frequency for any fall had been rated as a low. A combination of factors, mainly vandalism, had meant that the warehouse had only been partially netted when preliminary work on the roof had started. T's safety officer had expressed concern about the absence of complete netting and on his departure from the site had left the roof sheeters at work in the netted part of the building. The safety officer had left the site manager to ensure that the unnetted area had been indicated by markers. On the morning of the accident, markers had not been placed on the roof. Y conceded on appeal that: (i) the risk and method assessment was at fault; (ii) there was culpable fault in the failure to cause the netting to be erected under the whole roof area; and (iii) there should have been appropriate demarcation markings on the roof. The judge had found that Y as P's employer had borne the primary responsibility for his safety. Y submitted that the judge had erred in his approach, drawn conclusions that had not been justified by the evidence before him and had as a result imposed a manifestly excessive fine.HELD: (1) There was nothing in the point that the judge had wrongly started from the position that P was Y's employee. The practical reality was that Y had been retained as a specialist roofing contractor on the project and it must be the case that Y had to take a significant principal share of the blame for what had happened, and the more so when the working gangs had looked to Y for instructions as to roofing safety procedures. (2) The judge had however failed to assess the degree of culpability and criminality on Y's part by reference to the offence charged and its failure to take steps to ensure, so far as reasonably practical, the safety of the roofers. The judge had placed too much emphasis on seeking to apportion the overall liability, by reference to a projected total fine, between the Y and T on a percentage basis and not enough on assessing Y's specific culpability regarding the offence charged. The judge should have assessed Y's culpability in terms of: (a) how far Y's acts and omission had fallen short of the standard required by the 1974 act; and (b) by the extent of the criminal default thereby involved. In the instant case the fine imposed on Y had been excessive. None of the aggravating factors and all of the mitigating factors as identified in F Howe & Son (Engineers Limited (1999) 2 All ER 249 were present in this case. Y was a respectable and responsible company with an excellent safety record. It had a well established safety and training procedures having experienced employees and retained experienced contractors. Y had cooperated in every way with the enquiry and there had been no suggestion of cost-cutting exercises. The evidence suggested that the failure was to a significant extent due to a lack of liaison between all the parties involved. The instant court did not find that Y's failings were "manifest, conspicuous and cumulative". (3) In all the circumstances a substantial fine was required, but the £100,000 fine that had been imposed was excessive. Having regard to the mitigating factors and Y's culpability the appropriate fine would have been about £60,000. Taking into account the high proportion of costs that Y had already paid the figure was reduced to £55,000.Appeal allowed to the extent indicated.

[2003] EWCA Crim 458