Dean Atkinson was returning from the site’s welfare cabins to his workstation on the picking line. He was required to walk across a traffic area at the site, where he was fatally run over by a loading shovel.
A Health and Safety Executive (HSE) investigation identified that the company did not have simple safety measures in place. Namely, the company failed to provide suitable arrangements for segregation between vehicles and pedestrians.
HSE inspector Stephen Garner said that the death could have been prevented had the company implemented an alternative traffic route for pedestrians at its site.
On 26 January 2024, the company was found guilty of corporate manslaughter and fined £1.75m. The company was also found guilty of breaching health and safety regulations and fined a further £400,000.
This case comes not long after a national bus company was fined £32,000 after a cleaner was struck and killed by a bus at the company’s depot. Although the facts are similar, the substantially lower fine in this case is because the company did have safety measures in place at the time of the accident.
The comparison between these cases highlights the importance for operators to ensure that they have the appropriate health and safety measures in place.
HOW OPERATORS CAN MITIGATE THEIR LIABILITY
The Clandestine Entrant Civil Penalty Accreditation Scheme recognises HGV and PSV operators who take measures to operate an effective system for securing vehicles and preventing the carriage of clandestine entrants in accordance with the Carriers Liability Regulations 2002 and the Carriers Liability (Amendment) Regulations 2023.
In February 2023, the fines for clandestine entrants increased to £10,000 per clandestine found on the vehicle. Both the operator and the driver can be fined up to £10,000, making the maximum penalty £20,000 per clandestine entrant.
The starting point, when determining the responsible party’s liability for a fine, is to apply the maximum level of penalty for carrying clandestine entrants and then to apply a discount depending on various factors.
The first factor that Border Force considers is whether the operator is part of the Civil Penalty Accreditation Scheme. If the operator is part of the scheme, any fine is reduced by 50%. Therefore if the operator is not part of the scheme, they will not receive the 50% reduction and will always be fined for carrying clandestine entrants even if the system they have in operation is entirely compliant with the regulations. Our dispute resolution team is in the process of appealing a fine imposed for this very reason. We are generally disputing fines in the region of £60,000 to £80,000.
If you are an operator who undertakes international travel the question to ask is can you afford to pay £30,000 to £40,000 for simply not being a member of the scheme?
BOX: FAILURE TO MOT
In Ali v HSF Logistics Polska SP Zoo King’s Bench Division [2023] EWHC 2159 (KB), the high court found that a claim for credit hire can be limited on the basis of causation. In this case, a parked vehicle damaged in an accident had not been in receipt of a valid MOT certificate in the four-month period prior to the accident and, further, there was no evidence that a valid certificate would have been obtained within the hire period.
As such, Mr Justice Martin Spencer found that it was correct to disallow the claim for credit hire on the basis of causation. Where the claimant’s pre-accident use of his own car was illegal, the accident could not be said to have caused the loss of use which he claimed to have mitigated by incurring car hire charges.
Doing so on that basis allowed for consideration of the facts of the case – a meritorious claimant could establish that the vehicle would have a valid certificate within a certain period of time, thereby justifying some loss of use or credit hire. However, an unmeritorious claimant, as in this case, could have their claim dismissed in full.
If the MOT certificate does, therefore, lapse on a vehicle subsequently involved in an accident, if you are able to establish the lapse was a mere oversight that would be rectified soon, any losses sustained in a non-fault situation should remain recoverable.
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