R v F Howe and Son (Engineers) Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Scott Baker |
| Judgment Date | 06 November 1998 |
| Judgment citation (vLex) | [1998] EWCA Crim J1106-14 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | Case No: 97/8101/Y3 |
| Date | 06 November 1998 |
[1998] EWCA Crim J1106-14
The Vice President
Mr Justice Scott Baker
and
Mr Justice Hughes
Case No: 97/8101/Y3
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
Royal Courts of Justice
Strand, London, WC2A 2LL
MR I DIXEY appeared on behalf of the Appellant
MR H CARLISLE QC & MR O NSUGBE appeared on behalf of the Crown
Count 2: Failing, so far as was reasonably practicable to maintain an electric cable to a machine under regulation 4(2) of the Electricity at Work Regulations 1989 to prevent it constituting a danger to the health and safety of its employees, for which it was fined £2,000.
Count 3: Failing to make a suitable and sufficient assessment of the risks to which its employees were exposed by the dangerous state of disrepair of the electric cable to the machine, contrary to regulation 3 of the Management of Health and Safety at Work Regulations 1992, for which it was fined £2,000.
Count 5: Failing under regulation 11 of the Electricity at Work Regulations 1989 to ensure that means were provided to protect the electrical system supplying the machine from excess current, for which it was fined £4,000.
Count 4, alleging a breach of the Electricity at Work Regulations by using a piece of electrical equipment called a residual current device in such a manner as to create a risk of fire was ordered to lie on the file on the usual terms.
The prosecution came about as a result of a fatal accident which occurred on 13 August 1996 when Giles Smith, who was a 20 year old employee of the appellant was electrocuted. At the time of the accident he had been cleaning the appellant's factory which had been shut down for the purpose. Working with him was Timothy Howe, the 18 year old son of the appellant's managing director.
The cleaning operation took place four or five times a year and generated quite a lot of water on the floor which needed to be collected by an electric vacuum machine known as a "Freddy". The machine in question had been purchased second-hand by the appellant at an auction in April 1995. The cable to the machine became trapped between one of its wheels and the floor, causing damage to the conductor and consequently the machine became live. Giles Smith was holding it at the time. He was unable to let go until the power was turned off at the mains. He was then taken immediately to hospital where he was certified dead.
A Health and Safety Inspector visited the premises the same day and a full investigation was carried out. The immediate cause of the accident was the cable to the machine. There were three obvious areas of damage to it, and one of those areas appeared to be consistent with the cable having been crushed by a heavy load whilst it was lying on a hard surface. Inspection would have revealed the areas of damage quite easily. A far greater degree of safety would have been achieved by the use of a cable armoured with copper braid.
The wall mounted socket into which the 15 amp cable had been plugged was fitted with 32 amp fuses which had been subsequently bridged by fuse wire.
The electricity supply to the premises was fitted with a Residual Current Device (RCD) designed to trip the system if a fault developed anywhere within the circuit. In other words it was a circuit breaker. It was apparent that the RCD had been deliberately interfered with in a way which rendered it inoperable. The RCD had been fitted in about May 1995. At that time the company had been experiencing problems with the electricity supply cutting out. They called in a company, whom they had used on a number of occasions before, who sent out a fitter called Hitchcock. Hitchcock identified the existing RCD as being at fault and obtained a new replacement from a local company.
Following the accident the appellants employed an electrical contractor to examine the RCD. The test button failed to operate. The contractor also noted that the connection to the RCD consisted of three cables connected to the incoming side and three corresponding outgoing cables. It was in fact designed for four connections either side. The neutral connections had not been connected. Further investigations revealed that the neutral connection was made directly from the supply to a connection block bypassing the RCD. More detailed examination of the RCD revealed that it had been opened and its tripping function rendered inoperative. Two separate sections of wire from the circuits associated with the trip coil and damping circuit had been removed. The tripping capability of the device had thus been deliberately negatived.
Hitchcock remembered fitting the replacement RCD in May 1995. He remembered connecting three cables, three in and three out. He could not remember the neutral. No one from the appellant ever called him back to say the RCD was tripping out or not working properly. On several occasions he was called to the appellant's factory to rectify electrical faults on machine controls and motors. He found in a number of instances that someone had tried to install contactors but the piece of equipment was not working and he had to rectify it. Sometimes Mr Howe mentioned that he had done the connections and Hitchcock told him if he did not understand something he should ask. He had advised Mr Howe both orally and in writing that he was overloading the supply. Hitchcock was never asked to look at the Freddy.
There was no evidence who had tampered with the RCD, albeit Hitchcock may well have been responsible for bypassing the neutral connectors. It was the appellant's case that Hitchcock, rather than any of its employees, was responsible for the interference with the RCD. This was denied by Hitchcock and in any event was most unlikely because the act of interference involved breaking the manufacturers seal on the item which immediately negatived the manufacturer's guarantee. It seems to us quite unnecessary to explore this issue any further. The appellant pleaded not guilty to the only count which specifically related to the RCD. This was accepted by the prosecution. The judge sentenced on the basis that the appellant's employees did not themselves interfere with the RCD and we approach this appeal on the same basis. However, there was a period of thirteen months between the installation of the RCD and the accident. During this time the appellant made no effort to check the RCD or indeed even to check whether the test button was operating. These failures clearly form an important part of the picture of failing to ensure the safety of work of its employees which was the charge in Count 1.
The test button could have been pressed at any time and would have revealed that the device was not working. Good practice dictated that it should have been checked every three months. Mr Dixey on behalf of the appellant says that both the South Western Electricity board and other contractors had carried out work at the premises and no one had pointed out either that anything was wrong with the RCD or the need for regular inspections. The precise circumstances in which the Board was at the premises is unclear. But whatever they were it was the responsibility of the appellant to look after its own electrical equipment.
It is necessary to revert briefly to the four offences to which the appellant pleaded guilty.
The obligation imposed by section 2 of the Health and Safety at Work Act (Count 1) for which the appellant was fined £40,000 is a general one, namely to ensure so far as is reasonably practicable the safety at work of employees.
In essence what happened here was that Giles Smith was required to work with a piece of machinery that was in the result lethal. The test is not an absolute one to provide a safe working environment but the appellant had to ensure the safety at work of its employees "so far as was reasonably practicable". The various deficiencies pointed out by the Health and Safety Inspectorate, not least that the appellants had no system at all for checking its electrical equipment, indicate that it fell far short of the appropriate standard in this case. The tragedy that befell Giles Smith was unfortunately an accident waiting to happen.
The other three offences are more specific:
Count 2 relates to the failure to maintain the cable. Again the test is so far as was reasonably practicable and again the appellant fell far short of meeting it.
Count 3 is directed at the failure to carry out any risk assessment which the appellant plainly did not do.
Count 5 is directed at the socket outlet and the fact that neither the 32 amp fuses originally fitted nor the bridging fuse wire inserted as a replacement afforded adequate protection.
The appellant company was incorporated in 1962 having been started by Mr Derek Howe and his father. It is a small precision engineering company. Approximately 75% of the company's business consists of grinding engine mounts for Honda. At the time of the accident there were twelve employees. This has now reduced to ten. There were two working directors, Mr Derek Howe and Mrs Kathleen Little. Mrs Little dealt with the administration of the company. Mr Howe, who is now 68, retired from full time work with the company in September 1997 and is suffering from Parkinson's Disease. He owns 80% of the shares in the company.
The company accounts reveal that for the year ended 30 April 1997 the annual turnover was £355,000 (1996 £378,000); the net profit after tax was £26,969 (1996 £33,651); and the net book value of the company was £129,288 (1996, £99,994) but this included £68,227 in respect of assets held under finance leases and hire purchase contracts.
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