From Canada.......Construction supervisor fined $30,000 for worker's death | Canadian Occupational Safety (thesafetymag.com)

Quite surprised by the size of the fine which equates to about £17,000, so a big chunk out of their likely annual earnings.

Wondered whether this person might have been more senior than the article suggests but it seems not, as I can I identify the company that they were probaby working for as aubcontractor to the Main Contractor whose trial happens in a couple of weeks.

Hi Karan

I don't know how sentencing guidelines work in Canada, but.....

In the UK, if a prosecution is taken against multiple defendants each of them has the opportunity (actually often opportunities) to plead guilty or opt for trial.

If one pleads guilty and one goes for trial it is up to the Judge (or equivaent) to decide how to progress with the guilty plea. 

So, they can pass sentence (as has happened with this defendant in Canada) or they could wait for other proceedings to conclude before passing sentences on those who have pleaded guilty or found guilty.

Relatively unlikely that either route will substantially impact the sentence on each defendant as that is based on THEIR circumstances and THEIR input into the overall scenario.

My instinct is that in the UK at present, the judiciary will be keen to close out cases as early as possible and not hold back on sentencing just because another defendant is going to trial - simply to prevent the backlog of cases getting even greater than it is.

Hi Mirin

As I read it this defendant was the Site SUPERVISOR for a labour only Contractor.

Which means that almost certainly the Main Contractor had at least one person at more senior level in charge of the site. 

However, even if this person was the Site MANAGER, if this were to have happened in the UK, first the prosecution of the individual would have been rare, and second the level of fine is high when you consider that you have to base the fine on their individual income.

Also, into the equation in the UK the actual outcome would be taken into account. Serious injury but NOT fatal.

In contrast, the twin companies (MB and MC to anonymise them slightly) with a contract with the Contractor for whom the defendant was working face trial both for this incident but also a fatal accident, where it appears this individual defendant was either not part of the picture or has had any charge dropped.

If for a moment we ignore prosecutions against individuals who are sole traders or Partners/Directors in very small businesses, most H&S prosecutions of individuals in the UK will be taken for breach of Section 7, or possibly Section 36 of HSWA.

The HSE prosecutions databases (current - last 12 months and "history" - 1-10 years) indicates that very few cases are taken under either of these Sections of HSWA, though I would note that a search on the history database will not give the full picture as most convictions on individuals would be "spent" after 5 years and the information on the database removed.

HSE - Register of prosecutions and notices

Search by BREACHES not default CASES.

Hi Chris

Looks like HSE are losing such limited appetite that they had since I last did this search.

So....

Current prosecutions - up to a year ago (though with a 9 week lag before entry on to the database to allow for appeals and such like). Section 7 - ONE defendant, Section 36 - NIL

History database - NIL return for both Section 7 or Section 36.

There are other ways that an individual can appear on these databases, so the big bosses could be taken into Court via Section 37 which does bring up some hits on the History database (though with some data entry issues evident as most of the defendant are limited companies who would not normally be Directors of other limited companies).

...or manslaughter cases, or where specific Codes of Regulations have a parallel to Section 7.

But Sections 7 or 36 would be expected to be the usual route.

I do think that HSE takes far too few cases against individuals, particularly Directors and senior managers in small companies where it should be relatively straight forward to link an offence to a "controlling mind" or similar person.

The individual could face prison or community service. A limited company can only be fined and it would not be difficult for a Director of a small company to fold that, avoid the fine and start up under a different company name.

https://www.hse.gov.uk/foi/internalops/ocs/100-199/130_8.htm

hse official view on criteria for prosecuting individuals and their roles. Does suggest individuals  being prosecuted will be rare. Slightly off topic I heard yesterday that hse Field operations division now has a separate investigation division. Anyone know anything about this ?

Originally Posted by: Mirin

https://www.hse.gov.uk/foi/internalops/ocs/100-199/130_8.htm

hse official view on criteria for prosecuting individuals and their roles. Does suggest individuals  being prosecuted will be rare. Slightly off topic I heard yesterday that hse Field operations division now has a separate investigation division. Anyone know anything about this ?

Was speaking with an HSE inspector, i worked with a lot just last week. Hes now retired as have most of my peers, but he did say FOD was reverting to an old way of working - that had not worked last time. Did not go into details.

Thanks Mirin. HSE has done some daft things over the years. This seems very daft.

Having done a few expert witness cases over the years, I would have struggled in the witness box if I could not talk to scenarios that did NOT have an incident.

But even when I worked for HSE, in the witness box in a Fatal Accident Inquiry after a self-employed window cleaner had fallen off his ladder.

So, I gave the HSE party line. Guidance Note, I think it was GS25 talked about fitting a spreader bar at the top of the ladder to make lateral movement less likely.

Then the Sheriff comments (as is their job!)

"Mr Gotch, how many self-employed window cleaners have you seen with spreader bars at the top of their ladders?"

Well, of course, if I was in a dedicated investigations unit, the chances would be that I would have to say "None, My Lord" and say nowt else.

I did say "None, My Lord" but added "but if I stopped every time I saw a self-employed window cleaner standing on a window ledge on a sunny day, I wouldn't get any other work done."

Which was enough to stem the Sheriff's inquisition.

Suppose the HSE Investigation Unit Inspector looks at a very simple machinery accident. Perhaps caught at a vertical pillar drill. How are they going to cope if they can't talk to what methods are used to mitigate the risks of other drills or comparable machinery in day to day use?

They would be likely to end up so focused on what they can see with hindsight that they wouldn't see the perspective and be capable of talking to whether or not fully implementing HSE or other guidance is just theory or actually done in practice.