Press Releases
Avoiding the Risk - Corporate Manslaughter and
Company Vehicle Drivers
by Jason Stevens, Business Defence Solicitor, Greenwoods LLP
20th July 2009
Jason Stevens
Businesses convicted under the Act face an unlimited fine and can be subject to a Remedial Order requiring it to take specified steps determined by the Court and the Court will have the power to make a Publicity Order requiring the organisation to publicise the fact that it has been convicted of the offence. Thus, we may soon see adverts in newspapers or on company websites that certain businesses are "corporate killers".
Consider:
An organisation collates data which demonstrates that an employee regularly exceeds the speed limit whilst on company business. The organisation fails to act upon that information. The employee's regular work schedule is such that he is compelled to speed in order to complete the task that he has been set in the time he has been allocated. He causes a crash resulting in the death of himself and an innocent third party.
Will the organisation be liable for manslaughter under the Act?
- A company is guilty of the offence of corporate manslaughter if the way in which its activities are managed or organised causes a person's death and this amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased.
- An organisation is guilty of an offence only if the way in which its activities are managed by its Senior Management is a substantial element of the breach.
- The Act can only apply where at least two persons are at fault.
- Individual Directors and Managers remain liable at common law for manslaughter.
Did the way in which the organisation managed its activities cause a person's death?
The managed activity must be an "operating and substantial" cause of the fatality, albeit that it does not have to be the only or even the principal cause. On the face of it, it would be fair for a Jury to conclude, 'Yes'. Setting the employee tasks that he was unable to complete within the available time would probably be an operating and substantial cause of the crash.
What about simply failing to act upon the information that the driver was regularly speeding? Would that omission be an operating and substantial cause of the death? No. Simply holding data and failing to act upon it is not the cause of the accident. The speeding driver caused the incident.
Moreover, for an organisation to be guilty of manslaughter under the Act, there must be a gross breach of a duty, not a mere breach.
A breach of duty is gross if the conduct alleged falls far below what can reasonably be expected of an organisation in the circumstances. Is failing to adequately supervise the employee's behaviour a gross breach of duty falling far below what can be reasonably expected of the organisation? No.
The fault that could result in a charge for corporate manslaughter is not the omission to deal with the offending behaviour in light of the data, but rather the management of the activity which compelled the employee to speed.
Section 8 of the Act sets out factors for the Jury to consider, such as the extent to which the evidence shows that there were attitudes, policies, systems or accepted practices within the organisation that were likely to have encouraged any such failure or to have produced tolerance to it.
Implementing a system which compiles and produces records showing employees' driving habits demonstrates that the company is actively taking steps to effectively manage their staff. This information assists with the safe management of the employees' work tasks and is probative of the organisation's attitude and policy.
Aeromark Smartdash Excess Speed Reporting:
It is extremely unlikely that a manslaughter prosecution would be brought for a failure to act upon information that demonstrated an employee's tendency to speed.
If the charge is brought, it will be based upon other culpable circumstances. In that event presenting the Jury with evidence that the company is doing all that it can to monitor and manage employees' driving habits would be extremely beneficial to the offence and, would be regretted in hindsight if it was not.
It should be noted that road traffic accidents are not reportable under RIDDOR (Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 1995), only accidents in connection with exposure to substances being covered by road; the vehicle loading and unloading; specified construction, demolition or repair activities along public roads or incidents involving trains where a person is killed are reportable accidents for these purposes.
It is unlikely that the HSE would be involved in any investigation into a fatal workplace incident involving a company vehicle driver.
However, it should be noted that the HSE's provisional figures for 2007/08 involving those workplace transport fatalities which are reportable as detailed above amount to 54 employees, 11 self-employed persons, and 9 members of the public. The provisional figures for non fatal major injuries amount to 1820 for employees, 67 for the self-employed, and 188 for members of the public.
Whilst these figures are provisional they do show the extent to which work transport accidents are the cause of serious and fatal injuries. It is not unusual to hear about individuals being killed whilst being struck by a moving vehicle, people falling from a vehicle, material falling from a vehicle, the collapse or overturning of a vehicle or by being hit by a vehicle. It could be the case that a corporate manslaughter prosecution is brought as a result of one of those incidents.
