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6th September 2001
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Which of the following most accurately describes the problem?

LAST YEAR THERE WAS A PUBLIC OUTCRY when the Director of Public Prosecutions announced that nobody could be prosecuted for the Paddington rail crash.

The directors of big business have become the bogeymen of a nation increasingly obsessed with blame, seen as fat cats who must not continue to escape justice for running companies with substandard safety practices.

New legislation, proposed in draft form last May by the then Home Secretary Jack Straw, seeks to fill the gap left by existing law. It would ensure that the company itself' could be prosecuted, even when no individual employee or manager is judged blameworthy and brought before the court.

Solicitor Andrew Woolfall explains how existing legislation affects hauliers: "At the mome to be convicted for manslaught through gross negligence y must act in a manner which f far below the standard you wo expect of a competent person the same situation. The prose tion must identify an individu who has been negligent.

"A lorry driver would be gross negligent if he or she drove vehicle while very tired and th fell asleep at the wheel, killi other road users. But at prese as the law relates only to indivicl als, it is hard to prosecute employer for anything to do wi the death, other than perhaps mitring the driver's hou offences. If it can be shown th an individual within the comp knew the driver was likely to fatigued, that individual could prosecuted for manslaughter." However, the proposed law uld mean manslaughter proedings could be brought ainst the limited company elf. Under the new legislation it uld not be necessary to prosete an individual in the cornny—the corporate entity itself uld be brought before the court. company would be found guilty corporate manslaughter if were und that its systems and proceires as a whole fell below those ich could be "reasonably pected".

In Woolfall's example, the mpany would become responle for corporate manslaughter it were shown not to have oper systems in place to con1 the amount and types of rk done by the driver. It would t be necessary to show that any e individual within the cornny had failed: the court would ok at the company's systems d procedures.

If a company was convicted, art from imposing a fine of up £20,000, a judge could order e company to put right its failgs. In addition, the chairman td directors might face imprisrnent.

Employers' organisations have iced a number of concerns out the draught bill, mainly at it fails to explain what could "reasonably expected", and at making industry managers rsonally liable for the offence )uld lead to others in an organition passing the buck for health id safety. The Freight Transport ssociation (ETA) echoes these ncerns in its own response to e proposed changes.

"There is also a risk that it uld create a scapegoat mental," agrees European logistics • nager Sarah Watkins.

We understand the reasons d public support for the pro sal, but we are not happy with a umber of aspects of the draft," e adds. "The definitions it uses e very broad. Our concern is at, because of an isolated set of rcumstances that lead to a fatal'. the legislation will capture inpanies that do maintain good safety records, even though it is not intended to."

Watkins is keen to reassure hauliers running small and medium-sized companies that the legislation, which will be passed in 2003 at the earliest, will not change their legal liability significantly.

"Companies can already be prosecuted for corporate manslaughter," she says. In fact, of the three companies ever convicted for corporate manslaughter, one was a haulier. The managing director of Jackson Transport was sent to jail for a year in 1996, following the death of an employee who had inhaled dangerous chemicals at work.

In the 1993 Sowerby Bridge case, transport manager Eric Preston was charged with six cases of manslaughter for failing to check the brakes on a truck that careered down a bill and killed the driver, four pedestrians and another motorist. Preston's trial collapsed because of poor technical evidence, but his employer, Fewstons Transport, was fined £5,000 for poor maintenance.

In a small company with a simple management structure it is easy to trace the guiding mind that might be responsible for a fatality. The rarity of prosecutions is because of difficulties in preserving technical evidence, as the Sowerby Bridge case shows, rather than problems with identifying direct responsibility. The new legislation is intended to prosecute large companies, in which responsibility for health and safety is diffused throughout complex structures.

"The transport industry is already highly regulated by legislation that sets standards. If a company is adhering to these it doesn't have anything to fear. This is aimed at cowboy businesses that clearly deviate from best practice," adds Watkins.

However, the haulage industry does need a better understanding of what the Health 8c Safety Executive is looking for as regards best practice.

Watkins points out that there is work to do before companies can be confident that they are assessing all the risks, and before the HSE has the expertise to investigate road accidents and prosecute offenders.

• Andrew Woolfail is a partner with Wake Dyne Lawton, based in Chester and Manchester.


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