Workplace deaths can have dire consequences for employers

A death in the workplace is always a tragedy and it could see companies facing penalties of as much as £10m and directors facing jail.

That was the warning from John Caddies, a partner at Liverpool law firm Hill Dickinson. John was one of three senior lawyers from the firm that addressed the Mersey Maritime month Face-2-Face networking event.

John was joined by Colin Lavelle, also a partner at Hill Dickinson, and Grace Skinner, an associate. Colin began the session offering an overview of the firm and some of its particular areas of speciality.

Based in St Paul’s Square in Liverpool city centre, Hill Dickinson employs more than 850 people including 185 partners and legal directors. It also has offices in Manchester, London, Piraeus near Athens, Singapore, Monaco and Hong Kong. In recent weeks it has opened a new office in Newcastle.

With annual revenues of more than £100m, the firm focuses on three main areas – marine and energy, business services and health and life sciences. Colin said: “We are a little bit like the Thunderbirds – specialists for every area.”

He explained how Hill Dickinson had a rich history in the maritime sector. It had acted for White Star Line when both Titanic and Lusitania were built. It also acted for the owners of Costa Concordia in what was one of the biggest maritime salvage operations in history.

“One of the areas where we are really busy at the moment is in helping businesses who are dealing with issues related to sanctions on Russia, due to the war in Ukraine,” Colin added.

John, who is based in the London office, then took to the floor to talk about how Hill Dickinson acts for clients when there has been a death in the workplace. These can be in a business onshore and it also acts for ship owners when there has been a death on board a vessel.

“Colin and I have investigated four fatalities in the past three-and-a-half years and all of those have involved the police,” he said. “All of those we were looking at possible corporate manslaughter or gross negligence manslaughter charges.

“A fatality is awful for the individual, their family, their colleagues, the company. But it doesn’t just go away. We had one fatality where the police decided to prosecute six years later. Imagine having that hanging over you for six years. It’s a horrible situation.”

John added that when a fatality happens on a ship then the vessel will likely see representatives from multiple agencies coming on board to investigate. They can include the police, Marine Accident Investigation Branch (MAIB), Health & Safety Executive and Maritime and Coastguard Agency (MCA).

“Basically, your workplace gets invaded. With the police you never know whether they are there conducting a criminal investigation or just asking questions on behalf of the coroner. That is one of the first things you need to ask them.

“Only the police have the power of arrest. And if it is going to be a corporate manslaughter or gross negligence manslaughter charge then only the police can investigate those and then they will pass it on to the Crown Prosecution Service.”

He added that with most of the agencies you are not legally required to answer any questions. The exception is the MAIB. If you refuse to answer their questions then you risk breaking the law.

When a death occurs on board a ship, said John, there may also be representatives from the flag state. He explained: “We did have one where representatives from the flag state in the Isle of Man boarded the vessel along with all the other agencies and they were all asking questions.

“They were all asking questions and it was really stressful for the crew. They were already in distress because they had lost a crew mate. We persuaded everyone to back off and leave the ship. We wanted to make sure we were looking after the mental health of the crew members.”

Once a fatality has occurred in a workplace there are multiple ways a company, or its individual directors, could end up in either a criminal or a civil court. Fines, said John, are seldom less than £500,000 and could be as high as £10m.

“And if you are fined there is insurance that will cover you for that. The money will have to come out of your own company resources,” he added. “And if you are taken to a civil court for manslaughter it is likely you will lose as the burden of proof is lower than in a criminal prosecution.

“As I said earlier, there can be a number of years before the police decide whether or not to push ahead with the prosecution. And, even if they decide not to prosecute, the HSE might still go ahead and do so. And they can still lead to a custodial sentence.”

One of the most serious offences you could be charged with, he said, was gross negligence manslaughter. In these cases an individual deemed culpable could face charges and a long prison sentence.

All of the above, said John, underlined why it was critical for employers of all sizes to not only have strict health and safety policies but also to make sure they are fully implemented and work in practice.

“And what is the culture of your workplace?” He asked. “Do your employees feel free to be able to report anything which they believe is putting people at risk… these are the things you have to be aware of.

“Do you know what is happening in your workplace or are you just closing your eyes and your ears? The boss is always in control and ultimately responsible for anything that happens in the workplace.”

Later in the session John also talked about asbestos claims and how companies could face payouts of £100,000 or more for the more serious cases.

Following John was Grace Skinner who also offered wise advice for employers when it comes to claims for damage to hearing. She said: “Hearing loss can occur when there is damage to the structure and nerve fibre in the inner ear. And this damage is permanent.

“This is caused by exposure to exceptionally loud sounds. It could be a single explosion in the workplace or it could be exposure to a high level of noise over a long time. One example could be exposure over a long period in the engine room of a ship.”

Grace explained that any noise up to 70 decibels was fine. That would cover the normal level of conversation in the workplace. But long and repeated exposure to 85 decibels and above can cause damage.

“It could be damage to hearing,” she added. “Or it could result in tinnitus which is often associated with buzzing, clicking, hissing and roaring sounds.”

In terms of legal claims, she said, usually with accidents people have just three years from the date of an incident to submit a claim. But with noise-induced hearing claims, that can be a little different.

It can be three years from the date of exposure to the noise or three years from the date of a diagnosis from the doctor. Grace explained that what is important is the claimant’s date of knowledge. If they were aware of it more than three years ago then the claim is likely to fail.

Firms could be liable for payouts of up to £45,540 and people can also claim for travelling expenses, hearing aids and care costs. They could also be hit with future loss of earnings claims although this is rare as claimants are often retired.

When acting for clients, Grace will often look to see if there are other possible causes of the claimant’s hearing damage such as exposure to loud noise through hobbies or other activities.

“If claims are of low value then you may be tempted to not dispute the claim and just settle,” she said. “The risk is that by doing so you may encourage a rush of other claimants to come forward.”

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