Serious Roll Cage Accident/Prosecution...1. Accident Offence Contrary To: Sections 2 (1) and 33 (1)(a) of the Health and Safety at Work etc Act 1974 You did fail in your duty to ensure

Serious Roll Cage

Accident/Prosecution

Presented by Govind Mandora Team Manager

Mina Jotangia

Environmental Health Officer

Accepted practices

Today’s Talk

Very serious accident to a Wilko

employee

Our Investigation

Court Proceedings

2016 Sentencing Guidelines

Media and follow-up

Wilko Stores Limited

A ‘very’ local Company

JK Wilkinson opened his first store at

Charnwood Street, Leicester in 1930

Now grown to over 500 stores

Company turnover - £1.46billion

Now a ‘very’ LARGE Business

How did we get involved?

RIDDOR Notification

Accident Investigation by

Mina Jotangia & Gurdeep Dosanjh

Making safe

Evidence

IUC-Offences

Summons

The RIDDOR Report

The report stated that IP had a major injury to her

trunk and described accident as:

‘Whilst manoeuvring a cage stocked with tins of

paint from the lift in the goods inwards area of the

store, the cage toppled and team member ended

up beneath the cage’. Supervisor was pushing the

heavy rollcage , whilst Miss Collins was pulling it

over an uneven ledge created by the lift floor not

levelling with Good-in Floor’

The Injured Person –

Corisande Collins

20 years old female

Part-time employee since 1st October 2011

An undergraduate student at University of

Northampton

Very little knowledge and experience of

working in warehouse and retail

Liaising with Corisande &

Family

Very emotional

Respecting Corisande’s & Family time and

personal space

Clear explanation & why we needed to talk

to Corisande

S9 Statements - Corisande & mum

The Injured Person –

Work Duties/Training

Job involved moving stock in cages between

floors using a lift

Training was induction, watching DVD; H&S

multiple choice test

Shadowing a ‘Buddy’ for a couple of weeks

Practical roll cage training not part of their role

(S9 statement from Buddy very important)

Causation Factors

Individual- Lack of training and

supervision

Load - Roll cage was top heavy and

had a high centre of gravity

Equipment - Lift had a small ledge and

uneven with the shop/warehouse floor

January 2014 Officers Revisit

No stock/cage between the blue tape and the

lift doors

Lines on the lift door must be within the

10mm tolerance level, if not the send it to the

other floor and then recall. If still not level

then inform manager

LCC officers requested warning sign affixed

in Lift

1. Accident Offence

Contrary To: Sections 2 (1) and 33 (1)(a) of the Health and Safety at Work etc Act 1974

You did fail in your duty to ensure so far as was reasonably practicable, the health, safety and welfare at work of all your employees, in particular the provision and maintenance of plant and systems of work that were so far as was reasonably practicable safe and without risks to health, in that:

The floor of the main goods and passenger lift was not level with the shop floor; and

On 22nd August 2013 an incorrectly loaded roll cage was manoeuvred out of the main goods and passenger lift and fell onto Corisande Collins causing injury

2. Training Offence

Contrary To: Sections 2 (1) and 33 (1)(a) of the Health and Safety at Work etc Act 1974

You did fail in your duty to ensure so far as was reasonably practicable, the health, safety and welfare at work of all employees, in particular the provision of such information, instruction, training and supervision as is necessary to ensure so far as was reasonably practicable to ensure the health and safety at work of your employees, in that:

Employees were not provided with information, instruction, training and supervision in relation to safe use of roll cages; and

Employees were not provided with information, instruction, training and supervision in relation to safe use of the main goods and passenger lift

3. Risk Assessment Offence

Contrary To: Regulation 3(1)(a) of The Management of Health and Safety at Work Regulations 1999

You did fail in your duty to make a suitable and sufficient assessment of the risks to the health and safety of his employees to which they are exposed to whilst they are at work, in that:

The ‘Generic Risk Assessment for Escalator and Passenger Lift’ dated 16th April 2013 did not contain suitable and sufficient control measures for managing the hazard identified as ‘when the lift does not level with the floor’

The ‘Generic Risk Assessment 24 for Safe Use of Roll Cages’ dated 26th January 2010 did not contain suitable and sufficient control measures for managing the hazard of manoeuvering roll cages on uneven surfaces

4. Manual Handling Offence Contrary To: Regulation 4(1)(b) of the Manual Handling Operations Regulations 1992

You did fail in your duty to make a suitable and sufficient assessment of manual handling operations to be undertaken by employees, to take appropriate steps to reduce the risk of injury to employees arising out of undertaking manual handling operations to the lowest level reasonably practicable and to take appropriate steps to provide employees with information on the weight of each load and the heaviest side of any load whose centre of gravity is not positioned centrally, in that:

An assessment was not carried out for manual handling of roll cages, having regard to the factors which are specified in Column 1 of Schedule 1 of the Manual Handling Operations Regulations 1992 and considering the questions which are specified in the corresponding entry in column 2 of this Schedule, in particular there was inadequate regard for the factors; the tasks, the loads, the working environment, individual capability and other factors.

Employees undertaking manual handling of roll cages were not provided with general indications or precise information on the distribution of loads throughout the roll cage.

Primary Authority

2013 - PAP with Bassetlaw DC at time of investigation

13 Jan 2016 - Bassetlaw DC prosecuted Wilko following a FLT fatality and Wilko withdrew from PAP with Bassetlaw DC

March 2016 – Wilko formed PAP with Milton Keynes Council

Wilko Attitude

During investigation was ‘reactive’ but

co-operative

No immediate action was taken until

interventions by EHOs

Lift not levelling was not addressed for

over 6 months

Prosecution Bundle

Cost schedules on Excel for each

Officer

To start referencing Exhibits & scan

To create file of Exhibits – used and

unused and Chronologically order

Statements: Investigation

Be careful who provides S9

Wilko requested written IUC

That was then – THIS IS NOW!

Wilko/Milton Keynes PAP have :

Improved SSW for use of roll-cages

Employed Regional Managers and H & S Advisors

(1 of them is EHO)

Booklet & Notice Board to improve employee

engagement

Training -practical roll cage training, Albi Campaign

Lift levelling marks identify safe levelling

Improved Employee engagement, compliance

and training

Offences in Summary

S.2(1) Health & Safety at Work Act

(Un-safe life/In-correctly loaded roll cage);

S.2(1) Health & Safety at Work Act

(Lack of information, instruction & training)

Reg 3(1) Management Regulations

(No suitable & sufficient risk assessment); &

Reg 4(1) Manual Handling Operations Regs

(Lack of risk assessment/controls)

Case Management

Get Senior Management/Members on

board

Legal Services

Appointing Counsel

Be prepared to be challenged

Costly exercise

Communications/Media

Enter our Barrister!

Sentencing Guidelines

https://www.sentencingcouncil.org.uk/wp-content/uploads/HS-

offences-definitive-guideline-FINAL-web.pdf


Under Sec 120 of the Coroners and Justice Act

2009, the Sentencing Council issues this

definitive guideline.

It applies to all organisations and offenders aged

18 and older, who are sentenced on or after 1

February 2016, regardless of the date of the

offence.

Replaces Friskies schedule


Separate guidelines for corporate manslaughter

Sets fine ranges from £180K to £20million.

Do not get confused


Culpability

Seriousness of Harm

Likelihood of Harm

Harm Category

Type of organisation

Level of Fine


Breach of duty of employer towards

employees and non-employees Breach of

duty of self-employed to others, ie Section

2 or 3 breaches

Breach of Health and Safety regulations

Triable either way

Offence range: £50 fine – £10 million

fine


Culpability


Culpability


Harm


Very large organisation

“Where an offending organisation’s turnover or

equivalent very greatly exceeds the threshold for

large organisations, it may be necessary to move

outside the suggested range to achieve a

proportionate sentence.”


Fine


Wilko Case

Culpability - HIGH

Wilko did not meet recognised h&s standards

as they had unsuitable risk assessments

Allowed unsafe roll cage loading/movements

Used untrained staff asked to carry out tasks

Allowed breaches over a sustained period

Sentencing Guidelines Contd…

Wilko Case

Seriousness of harm – LEVEL A

Corisande was now paralysed below her waist

Corisande had a lifelong physical impairment

Corisande now needed had third party care for

basic needs

Wilko did not dispute this at Court

.


Wilko Case

Likelihood of harm - MEDIUM

Lift levelling was a known problem and had

been reported but not rectified adequately

Lift overloading was allowed practice that

meant staff had to pull cages out of the lift

routinely


Likelihood of harm – MEDIUM contd…

The cages at the store were also found to

incorrectly loaded increasing the risk of them

toppling over

In these circumstances any employee could

have suffered an injury as Corisande from the

same activity


Wilko Case

Harm Category – CATEGORY 2

The offences are considered to be a

significant cause of actual harm

Organisation – VERY LARGE

If large organisation (ie with turnover of £50

million or more), the starting point for

sentencing is a fine of £1.1 million with a

range of £550,000 - £2.9 million

Aggravating Factors

13/1/16 Bassatlaw DC fatality prosecution

highlighted unsafe practices, poor RA’s

Breaches continued over a sustained period

Level of harm – Life-changing injuries

Failure of store management to supervise,

monitor or take remedial action

Mitigating Factors

Wilko assisted with the investigation

Controls now in place but this was months

after the accident to Corisande, ie noted on

5/9/13 but not actioned fully until 17/1/14

Guilty pleas entered at first time of asking

Court Proceedings - Key Dates

12/4/16: Summons served on Wilko

16/6/16: Guilty pleas entered by Wilko

8/12/16: Sentencing Hearing

11/1/17: Wilko sentenced – 42 days to pay

Proceedings

Wilko pleaded guilty to all 4 Offences at Mags Court

Referred to Crown Court for Sentencing

Wilko appointed expert re. Lift levelling issue

LCC appointed HSE expert who stated:

“roll cage toppled due to an overturning movement”

due to:

• The high centre of gravity of its contents

• The discontinuity between platform and landing

level

• Potential load shift of the roll cage contents

• Pushing the trolley, as the front of the roll cage

dropped onto the landing level

Case Law

Our Barrister said in his sentencing summary:

A fine that is intended “to bring the message

home to the directors and shareholders of

offending organisations”, as stated by the

Judge in the prosecution of Thames Water

Prosecution Fines & Costs

Total Fine: £2.2million fine!

Costs: £70,000

* All LA costs awarded

* £28,000 in barrister fees

At the time this was the 2nd highest fine

(highest was Alton Towers prosecution)

The Media Circus

Screen Shot from Daily Mail online:

The Media Circus

Screen Shot from BBC News online:

The Media Circus

Screen Shot from Leicester Mercury online:

The End?

Screen Shot from Leicester Mercury online:

Lessons

Investigation

Evidence

PAP

Barrister

Defence

Media

Fines/costs

Sentencing Guidelines –

1 Year one

Statistics show significant increases in fines

The largest fine in 2016 was two-and-a-half times the

size of the largest fine in 2015 and almost ten times

larger than the largest fine in 2014

Nineteen companies received fines of a million

pounds or more since the new guidelines were

implemented.

Only three £1million+ fines in 2015 and none in 2014


1 Year one

£1million: DFS - Neck/Head injuries, r3 Mang Regs/S2

HASWA, £15k costs

£5million: Merlin (Alton Towers) – 5 seriously injured, s3

HASWA, £70K costs

£600k: Go Ahead London – Fatal fall, s3 HASWA, £79k

costs

£3million: Conoco – Gas leak, Offshore Installations Regs,

£159K costs

£900k: Jaguar - Crushing/Leg amputation, s2 HASWA £50k

costs

£950k: Kentucky Fried Chicken (KFC) - Arm scalding,

s2 HASWA, £19k costs


Spot the difference

Merlin (Warwick Castle/Alton Towers)

2012: £350K fine plus £145k costs

Fatal fall from bridge - Mang Regs/HASWA

2016: £5million fine plus £70k costs

5 seriously injured - HASWA

Wilko

2016: £200k fine plus £200k costs

Fatality - HASWA

2017: £2.2million plus £70k costs

Life-changing injuries - HASWA, Mang/MH Regs

Any Questions?

Presenters:

Govind Mandora Team Manager

Mina Jotangia Environmental Health Officer

Documents

Serious Roll Cage Accident/Prosecution...1. Accident Offence Contrary To: Sections 2 (1) and 33 (1)(a) of the Health and Safety at Work etc Act 1974 You did fail in your duty to ensure