Understanding Corporate Manslaughter

The Corporate Manslaughter and Corporate Homicide Act of 2007 came into force in April 2008 and put the spotlight firmly on business transport. Every company is affected and will have to ensure that its policies and procedures protect it from prosecution in the event of a fatal accident.

The new law is designed to punish organisations whose breach of their duty of care results in the deaths of employees or members of the public.

Before the Act, a company could only be convicted of manslaughter if a single employee of the company committed all the elements of the offence and was of sufficient seniority to be seen as embodying the ‘directing mind’ of the corporation. In reality successful prosecutions were rare, and were generally achieved only in cases of very small companies.

Public outcry has frequently ensued when it is perceived that culpable corporations have escaped censure and punishment. The Herald of Free Enterprise disaster in 1987, and the more recent rail crashes involving Network Rail serve as good illustrations of this. In both cases prosecution attempts failed because of the difficulty directly linking one person in management to specific operational failures.

The revised legislation makes it easier to prosecute small, medium and large organisations for manslaughter where serious corporate mismanagement has led to a work-related death.

Company car and van fleets could be the first to become liable for prosecution because of the sheer number of at-work road deaths. It is generally accepted that one third of road fatalities and injuries involve people who are at work. On average, this equates to more than 1,000 deaths a year and more than 60,000 injuries affecting people travelling for work. By comparison, the total number of workplace deaths in all other areas averages just over 200 a year.

New Responsibilities

Under the new Act, an organisation will be guilty of corporate manslaughter if the way in which its activities are managed or organised by senior management causes a person’s death and amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased.

A gross breach of a duty of care is deemed if the alleged conduct falls far below what can reasonably be expected of the company or organisation in the circumstances. The jury must decide whether the organisation failed to comply with health and safety legislation relating to the alleged breach and, if so, how serious that failure was and did it pose a death risk.

The jury may also consider whether, from senior management down, there were attitudes, policies or accepted practices within the organisation that were likely to have encouraged the failure or to have produced tolerance of it.

Senior management means those who play significant roles in deciding how the whole or a substantial part of a company operates.

Penalties

On conviction a corporation may receive a range of punishments:

• An unlimited fine, most likely based on profitability and turnover;
• A ‘publicity order’ which requires the organisation to publicise the conviction;
• A ‘remedial order’ which will require the organisation to take specified steps to remedy the breach, and ensure adequate health and safety policies and practices are put in place.

So how should employers respond to the new legislation? Firstly, all companies need to demonstrate that their health and safety procedures are in line with all existing health and safety legislation. Work-related road safety should be incorporated into this.

FleetDirections is designed to provide information on how you can respond to this new law. The risk management section of the FleetDirections website sets out our recommended approach.

The Legal Process

In the event of a fatal accident, police officers investigating fatal crashes are told to assume the death is an unlawful killing until proved otherwise. Therefore, fleet managers must expect all fatal crash investigations to delve into all of the relevant health and safety and employee duty of care procedures and policies in place within a fleet.

This approach has led to many motorways and roads being closed for forensic investigation following any fatal accident - a far cry from the days when the main objective of the police was to re-open the road.

Common areas of investigation will be:

Driver competency: Has the employer considered whether the driver has the necessary driving licence and if so whether further training is required?

Fitness and health: Have obvious signs that an employee is unfit to drive been ignored; for example, from the effects of drink or drugs?

Vehicle suitability: Are vehicles being used for a purpose for which they were not intended; for example, saloon cars used to transport heavy or bulky goods without appropriate means to secure the load safely?

In the event that an accident involves an employee driving on company business, the police will be looking to establish why the vehicle was at the scene; the mechanical condition of the vehicle; the physical condition of the driver, including signs of fatigue; and the legalities of both vehicle and driver – licence, MOT, insurance, etc.

It is for these reasons that a vehicle and driver audit trail is required to show that the policy for employees driving on company business is based on health and safety best practice guidelines.

Apportioning Blame

Fleet managers would be forgiven for thinking that every time there was a fatal accident the police were committed to finding some responsibility on the part of the employer. The reality of corporate responsibility is currently very different. Although prosecutions do occur they are still few in number. However, that doesn’t mean your business is free from risk. If a company is deemed to have been negligent then the courts will act accordingly.

This brings us on to the issue of management failure criteria. If a company has not carried out a risk assessment or has done so but is only paying lip service to it, then this could be construed as a failure to manage. Responsibility to manage will fall on senior directors and managers; rather than fleet managers. However, if it can be demonstrated that the fleet manager was undertaking a senior role then this presumption may be reversed. In addition there is a second tier of responsibility for individuals who have a ‘significant role’; these are individuals whose management responsibilities bear on the organisation as a whole or a substantial part of it. The phrase ‘significant role’ is intended to capture those managers whose role in management terms is decisive or influential. There is no doubt that some fleet managers and health and safety managers will fall within this definition.

Vehicle maintenance

Provision and Use of Work Equipment Regulations 1998 place primary obligations upon a company for the inspection and maintenance of equipment used by employees. In Stimpson v (1) Curran (2) Land Rover UK Ltd and (3) Exel Logistics Ltd (2004), Wayne Curran was an employee of Land Rover (UK) Ltd who permitted him to use one of the company’s Defender vehicles for a journey. Curran was carrying a number of passengers, including Paul Stimpson who was injured when the vehicle was involved in a roll-over accident on the M6 motorway. Exel Logistics had previously assembled the front offside wheel and tyre. It was subsequently established that the two rear tyres were under-inflated and the front offside tyre had deflated. The court had to determine firstly the responsibility of Curran and whether he owed a duty to his employers and passengers to ensure that the vehicle was in a safe condition before the journey began and during the journey itself. Curran himself accepted that under the Road Vehicles (Construction and Use) Regulations 1986 he did have a duty to check the vehicles tyre pressures before setting off, but claimed that as the vehicle was immaculately maintained by his employer this excused him from his obligation.

As Curran had not noticed any unusual handling characteristics during the journey, the court would not fix him with any liability for the accident.

Post crash inspection found that the rear tyres were at a reduced pressure – 29psi instead of 48. It was argued that in these circumstances Land Rover should have been aware of the dangers posed by under-inflated tyres and as a result, should bear the greatest share of responsibility. However the rear tyres were not the sole cause of the accident. Exel had assembled the offside wheel and tyre. It was found that during this process dirt and grit had found its way between the inner tube and the tyre casing. The court accepted that this had resulted in a split in the inner tube and a partial deflation of the offside tyre just before the accident. The court also accepted that, had the tyre deflation occurred in isolation, there was a chance that Curran may have been able to bring the vehicle to a halt; it was the interaction with the under-inflated rear tyres which led to the fish-tailing and then roll-over. Taking all of these arguments into consideration the court found both Land Rover and Exel 50% each responsible for Stimpson`s injuries.

For fleets, this is a clear warning of the need to take occupational road safety seriously and do everything possible to limit crashes and keep drivers safe. Crashes will continue to happen, but if a company can show the incident was limited to the actions of the individuals involved and they had the skills required to carry out their role, then it should be enough to avoid prosecution.

For leasing companies who permit their clients to service and maintain their lease fleet of vehicles the leasing company must ensure that such client follows the manufacturer’s requirements and has adequately trained technicians. The leasing company is still the vehicle’s owner and has a consequential health and safety responsibility. It must ensure that there is a recorded audit trail.

For companies that maintain vehicles on behalf of their clients who lease fleets, again an audit trail is vital to show that manufacturers’ requirements have been followed.

Minimising risk

If you believe that the employee has a responsibility to look after a vehicle, think again. Even if the employee is using their own vehicle, the company should ensure the vehicle is properly maintained. Do not forget that if the employee is driving in the course of their employment, the fleet may still ultimately be held responsible for the employee’s negligence by virtue of vicarious liability, whoever owns the vehicle.

Whether vehicles are maintained internally or externally but outside contractors, an audit trail is good fleet management and the best line of defence to any prosecution. The courts are going to be quite prepared to entertain split liability between the employer and the motor trade, particularly where a defect can be traced back to past servicing or maintenance – the ‘who touched it last’ principle. Record everything, even when a vehicle misses an appointment. Always assume someone may ask you to subsequently justify your action.

Always use the correct level of technician for the job in hand. We all have to learn so, if someone is used who does not have the necessary qualifications or experience, make sure the work is supervised by someone that has the skills, and record it!

Case Studies

‘Tiredness can kill’ signs on the motorway are there for very good reason and fleet managers will only be too aware of the problems of too many hours behind the wheel. However some companies will find themselves in hot water if they do not effectively monitor a driver’s time on the road. In Michael Eyres v. Atkinsons Kitchens and Bedrooms (2007) a worker was paralysed after being flung from his van after falling asleep at the wheel. He had been working for 19 hours and the court found that the company’s philosophy and culture had encouraged excessive hours and placed him at risk of such an accident. His employer was found liable for his injuries and ordered to pay damages. This case is a strong reminder to employers of the need to manage occupational road risk. Companies need to be sure that their employees are in a fit condition to drive and have had adequate quality sleep before getting behind the wheel.

Documentation

Both the Police and Criminal Evidence Act 1984 and the Health and Safety at Work Act 1974 confer wide-ranging powers on investigators to search premises and seize documents which may assist them in fatal accident investigations. In addition to MOT certificates and insurance certificates companies will need to ensure that they can produce up-to-date documentary evidence relevant to the issues of occupational driving. For example:- Driver training: Is the driver regularly involved in accidents of a similar nature? Do they have experience with that type of vehicle?

Vehicle maintenance: Has the vehicle been regularly serviced? How many miles has it covered since?

What is the employer’s policy on working hours, the number of meetings or visits make during the day; mileage covered between sites? Who sets the employee’s schedule and is it realistic in terms of mileage and time?

Tachographs and data loggers: Are they used? Where is the information stored?

The Future

The Corporate Manslaughter Act will remind employers of the potentially massive financial impact of any failure to manage their occupational road risk. Unlimited fines, potential imprisonment and the incredible disruption of a police investigation are huge deterrents in themselves. Undoubtedly there is now greater responsibility on companies to ensure drivers are safe and that they can subsequently prove that systems are in place to minimise risk and thereby avoid prosecution.

All information made available on this website is intended to be of general use only and is not made available for any specific purpose and does not constitute legal advice. The above information may not deal with every important issue or cover every aspect of the issues with which it deals. It is not intended to replace advice from professional risk managers and legal advisers. Please read our full legal disclaimer.