Alamy
A design and construction company’s appeal against a £1.1m fine after an engineer fell from a ladder and suffered life-changing injuries has been dismissed. Modus Workspace was prosecuted under the Health and Safety at Work Act for failing to discharge its duty.
The firm was refurbishing a warehouse in Hemel Hempstead, UK in 2016. On 5 September, while testing a sprinkler system for leaks, a subcontractor leaned an extension ladder on an internal roof against an exterior wall. The ladder gave way when he stepped on it, and he fell three metres (9.8ft) through a gap, sustaining serious injuries, including severe blood loss. At the original trial at Luton Crown Court, the judge said the injured man had not been warned about the gaps and that any available warnings were inadequate.
The judge also said there were serious and persistent failures and lapses in some procedures, and the company’s conduct had fallen ‘far short of the appropriate standard’. When sentencing, the judge considered the company’s accounts, which showed a turnover of more than £50m over the preceding three years. A letter from the company’s auditors on the impact of the COVID-19 pandemic on the business forecast £40m turnover for the company for the 2020 period. Based on this information, the judge classified Modus as a large organisation, and with a high level of culpability, the judge took a starting point for the fine of £1.1m.
The company appealed against the fine amount, arguing the trial judge was mistaken in the application of health and safety sentencing guidelines. It argued it should not have been classified as a large organisation, or the judge should have made a reduction to the fine’s starting point because of the loss-making projection at the time of sentencing.
At appeal, the judge found that the original trial judge had based the sentence on the business they were presented with. Their view of the company’s future financial health and the possible impact of the pandemic was reasonably open, and it was wrong to claim the judge was not aware of the economic realities of the company’s situation. The appeal judge agreed with the trial judge that the company was not loss-making and was not projected to have a substantial reduction in its turnover even during the pandemic. The trial judge did account for the projected downturn in business when sentencing but could do no more, and sentencing guidelines do not require judges to pay regard to a company’s future performance.
Some mitigating factors were applied to the company, namely its previously good health and safety record. However, this incident could have very easily ended in a fatality, with the breach being serious and persistent and causing serious harm. Increasing the fine could be both expected and easily justifiable.
The appeal judge ruled the original trial judge’s sentencing was not unfair, unbalanced or disproportionate. The original fine was ruled to be neither wrong in principle nor manifestly excessive, and the company’s appeal was dismissed.
