Mike Appleby – “Prosecutions often rely heavily on hindsight, which distorts their approach to risk” – Lawyer Monthly | Legal News Magazine

Mike Appleby – “Prosecutions often rely heavily on hindsight, which distorts their approach to risk”

Our next thought leader is Mike Appleby, Partner at Fisher Scoggins Waters, a UK Law firm specialised in construction, engineering and manufacturing litigation. Here, Mike talks to Lawyer Monthly about the health & safety matters he deals with in criminal prosecutions, about the types of incidents he encounters in his work, and about the complexities therein. He also gives several recommendations for businesses looking for counsel on health & safety matters.

 

Given your extensive experience in the construction, engineering and manufacturing sectors, what has been your biggest legal challenge to date? How did you navigate this issue?

When there has been an industrial accident where people have been badly injured or killed then the immediate reaction from those unfamiliar with that industry is that someone or an organisation has done something terribly wrong.

Prof. James Reason in his seminal work ‘Managing the Risks of Organizational Accidents’ observes; “The best people can make the worst mistakes. The greatest calamities can happen to conscientious and well run organizations.”

Prosecutions often rely heavily on hindsight, which distorts their approach to risk. Prof. Lofstedt, who the government tasked with reviewing our health & safety laws, often refers to the work of Dr. Daniel Kahneman and in particular his book ‘Thinking, fast and slow’. In this book Dr. Kahneman says: “We are prone to overestimate how much we understand about the world and to underestimate the role of chance in events. Over confidence is fed by the illusionary certainty of hindsight.”

The challenge is therefore to present your case so that the judge and jury get to understand the industry and the context of the risks involved. What they will be looking for is an explanation as to how and why the events occurred. In the cases we deal with, it is not so much the evidence that is in dispute but the interpretation of that evidence. As to how you overcome this challenge will depend on the nature of the case, but approaches to take can include:

a) Many of the prosecution witnesses are likely to be employees of the organisation being prosecuted. The statements taken by the HSE (or police in a manslaughter case) are likely to concentrate on the incident and a narrow topic such as risk assessment rather than consideration of the wider issues. Therefore, in appropriate cases it can be worthwhile interviewing some of these witnesses to explore their evidence. This further evidence can then be brought out when the witnesses are questioned at trial.

Also it may be a situation of asking the witness to clarify what they have said. For example, an employee may correctly say he or she has never seen a risk assessment relating to an aspect of their work. However, what may not have been explored is whether he or she has had a toolbox talk on the risks. In the construction industry, frontline workers are more likely to have toolbox talks on the risks and control measures, than see risk assessments.

b) Finding the right witnesses from the company to give evidence as part of the defence case.

c) Instructing experts who are knowledgeable and have worked in the particular industry involved. HSE tend to rely on specialist inspectors who while they may have a particular expertise (e.g. in mechanical engineering), may have little or no experience of the industry in which the incident has occurred.

d) The use of film/animation to help explain processes.

 

What would you say is the most common incident or damage related type of claim you deal with?

In reference to criminal prosecution cases, we deal with all types of incidents including falls from height, trench collapses, electrocutions, collisions between plant and collisions between plant and pedestrians, overturning plant, crane collapses, incidents involving machinery and guarding, exposure to noxious gases and legionella cases as well as occupational health cases e.g. Hand Arm Vibration Syndrome.

Across all types of incident there are some common failings that we encounter. These include: • Inadequate training of frontline workers;

• Procedures not being properly followed by frontline workers;

• Poor management at operational level;

• Organisations believing that health and safety can be contracted out;

• Inadequate definition of contractor’s role;

• Poor communication with workforce /contractor;

• Inadequate management, audit` and review of safety systems contractors;

• Poor control of contractors; • Senior management being told what senior management wants to hear;

• Senior management making decisions on incomplete/wrong information;

• Senior management not getting out onto the shop floor to see for themselves how the organisation operates.

There is a changing climate that brings with it new challenges for business.

The new Sentencing Guidelines for health and safety offences and corporate manslaughter make it clear that sentences will be based on the risk of potential harm and not just the harm that actually occurred. For companies, fines are related to their turnover. Big fines used to be reserved for fatal cases, but not anymore. C Ro Ports was fined £1.8 million when an employee’s arm was caught in a powered capstan used for mooring a ship. This represented approximately 8% of its annual turnover.

There is an increased trend of investigating directors and senior managers to consider whether any failings by them amount to a criminal offence. The concern with the new guidelines is that for an individual convicted of a health & safety offence, the threshold for a custodial sentence has been lowered.

Criminal courts are not used to dealing with the concept of risk. Therefore Health & Safety explaining the complexities of the risk involved can be a challenge. Because of this, and the higher stakes, expect to see more contested trials in the future.

 

What kind of protection can businesses resort to in defendant cases surrounding health & safety claims?

In reference to criminal prosecution cases, the key thing is to not put your head in the sand and just hope it will all go away. Even the best managed companies can have a terrible accident. Don’t take the attitude it can never happen to you.

It is well worth putting together a protocol which covers what to do in the event of an incident.

Companies should get specialist legal advice from the outset. There is a temptation to think that major health & safety incidents need large teams of lawyers and paralegals to manage their aftermath. However, in all of the many big cases in which we have been involved over the past decade, experience shows these are best managed by teams of two or three outof-house lawyers. A smaller team stays tight-knit and opportunities to establish links between emerging pieces of information and evidence are greatly enhanced.

Companies need to be vigilant about gathering/retaining evidence, as it may be some years before a prosecution is brought. Take legal advice on HSE requests for documentation/information and consider whether to challenge FFI notifications of contravention and improvement/prohibition notices. Not challenging them may have an adverse impact if prosecuted later.

Other things to consider include: (i) whether its accident investigation should be made subject to legal professional privilege (ii) identifying potential experts and retaining them (iii) if requested by the investigators, whether it is in an organisation’s best interests, to attend an interview under caution/ supply written submissions.

 

Can you talk LM through your involvement in the Cullen Inquiry into the Ladbroke Grove Rail Crash of October 1999 and the challenges therein?

This is where I first met Mark Scoggins and Charlotte Waters (FSW partners) who were acting for one of the train operating companies while I represented the families of the deceased train drivers involved and their trade union ASLEF.

I had represented the driver in the earlier Watford train crash, in which one passenger died, who passed a red signal, known in the industry as a SPAD – signal passed at danger. He was acquitted of gross negligence manslaughter. I discovered that the signal he passed had been passed on four other occasions in two years, after there had been changes to the signalling layout. In the industry this type of signal became known as a multi SPAD signal.

Ladbroke Grove was similar in that the signal passed at danger had been passed on eight previous occasions. While the initial focus was on the driver and his employer (the company Mark and Charlotte represented) the inquiry moved to looking to the infrastructure for explanations as to why the crash had happened.

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