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SENTENCING DILEMMA IN OVERHEAD CABLE DEATH CASE

Grab lorry operator electrocuted during deliver of roofing materials

Blackford (Newbury) Ltd, of Newbury, formerly Harris Roofing Supplies Ltd has been prosecuted after a new employee was electrocuted whilst operating a lorry mounted crane. Anthony Milani, aged 26, died when the crane came into contact with an overhead power cable on a Hampshire farm on 14 August 2007.

Mr Milani joined the company as an HGV driver and warehouseman in April 2007 and was shown how to use the Hiab crane by the senior warehouseman who was not a competent trainer.

He was delivering roofing materials and parked beneath the three overhead 11Kv cables. He deployed the nearside stabiliser (both should have been used) and when he moved the jib it struck one of the cables. He died instantly.

The senior warehouseman was aware of the overhead electric cables at the site but did not “consider them to be a hazard”. He was unaware of safety guidance concerning overhead power lines or the necessary training of crane drivers.

Signs warning of overhead cables had been removed several weeks earlier by the site owners.

Proper training was scheduled before death

Blackford (Newbury) Ltd, of Hambridge Road, Newbury, formerly Harris Roofing Supplies Ltd, pleaded guilty to breaching Section 2 (1) of the Health and Safety at Work Act etc 1974 at Southampton Crown Court. The company was fined £50,000 and ordered to pay £20,000 in prosecution costs. After the hearing, HSE Inspector Dennis MacWilliam, said:

“Proper training, simple checks and procedures could have prevented this horrific incident. Tragically, Mr Milani had been booked-in to do a professional course in handling lorry mounted cranes in the month he died.

The company failed to provide suitable and sufficient training and supervision for Mr Milani in the used of Hiab cranes and especially the risk from overhead power lines. They also failed to ensure lifting operations were properly planned and hazards identified.

Delivery arrangements at clients’ premises should also have been checked from time to time.”

Judge placed in difficult position on appropriate sentence

At the sentencing hearing at Southampton Crown Court on Friday 11th March 2011, the Recorder expressed grave concerns about having to fix a fine, where the defendant company was apparently insolvent with no material assets.

He was expected to impose a fine on a shell, in the knowledge that the fine is unlikely ever to be paid, and any fine will be against public policy. He made the following remarks:

“the core failure was the lack of adequate training to operate the crane safely and in particular a failure to recognise this site as a potential danger given the overhead cables. Plainly the cables were low enough to touch. On this particular day he was only using one stabilizer which shows the lack of training. Those failures are significantly aggravating features of this breach.

I have to impose a financial penalty on the company. I have had regard to [Sentencing] guidelines at para 16. I also looked at para 19 (viii) – bad cases should be put out of business. Para 25 – level of fines. R v Howe 1999 – any fine should reflect the gravity of the offence and the means of the offender. The penalty should reflect public disquiet at unnecessary loss of life.

Unhappily the authorities give me no guidance on the situation I am faced with. The assets have been sold. The sale took place after the incident and when the enquiries were still current. There is plainly a suspicion that the sale had a motive to remove assets but leave liability for this death with the company that then employed the deceased. This has been confirmed by the letter 3rd Feb 2011 – purchaser was advised that the transaction would be restructured given the fatality.

The conclusion of forensic accountant is that the defendant company is currently insolvent and has no material assets. The reality that I am faced with today is that the defendant is not trading, has no material assets and is currently insolvent.

I have a dilemma:- do I fine the defendant company the appropriate level of fine in the knowledge that it has no assets to meet it or do I fine it a very low amount which is an affront to public concern. Even if fine was at low end there is nothing for me to believe it would be paid.

In the circumstances, I think I should impose a fine at the level I think is appropriate for the offence. It is the lesser of the 2 evils. The merit of this approach is that if this case receives publicity, the level of the fine will alert others of the seriousness with which courts reflects Health & Safety.

Given this, there will be a fine of £50000 and an order for costs of £20000.

If this decision is to be reviewed then a full transcript of this hearing should be made available so the higher court can see the dilemma. It may be that a higher court could give some guidance”.

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