Court of Appeal reduces 'manifestly excessive' £1.8m fine for workplace injury

The company was sentenced on 21 January 2016, during a period in which the courts imposed numerous fines of over £1 million ahead of new sentencing guidelines taking mandatory effect on 1 February 2016, according to health and safety law expert Kevin Bridges of Pinsent Masons, the law firm behind Out-Law.com.

Neither the crown court, in its original judgment, nor the Court of Appeal considered the guidelines when considering what might be an appropriate fine to impose on the company, which had pled guilty to breaches of the Health and Safety at Work etc Act which led to the severe injury of a member of its mooring team in June 2014. This made the appeal court's judgment of limited value, according to Bridges.

"The guidelines, as we know, create an entirely new landscape in which employers will be sentenced," Bridges said. "As far as I know, there have been no appeals - and certainly no successful appeals - against fines imposed following the guidelines. Therefore, this appeal should not be taken to mean that fines of over £1m will always be manifestly excessive."

"On the face of it, this is a good result for C.RO Ports but the judgment, in my view, merely reflects the new landscape; and £500,000 is still a very large fine for what was a serious but nonetheless non-fatal accident. Less good news was that the company had five years to pay the original fine, at a rate of £360,000 per year; and only 28 days to pay the substituted fine of £500,000," he said.

The injured worker in this case was one of a three-man team whose job was to secure the heavy mooring ropes of an ocean-going vessel to land. The fingers of his left hand were caught between the rotating drum of a powered capstan and a heaving line, causing his arm to be dragged in and wrapped tightly around the drum. He suffered multiple fractures and nerve and ligament damage.

An investigation by the Health and Safety Executive (HSE) found that the company failed to suitably identify and control the risks associated with the use of powered capstans at the port, and had failed to suitably react to warnings raised by its workers after a previous incident. While the appeal court agreed with this assessment, it also found that the company had not been oblivious to the safety risks at the site. The injured worker had also made a good recovery, the court heard.

C.RO Ports is a medium-sized company, but the original fine in this case would have been £2.7m before a one-third discount for an early guilty plea had been applied, according to Bridges. This would have been the equivalent of treating the case as a "very high culpability harm category 1 case" had the guidelines been in force and applied at the time of the sentencing, he said.

"This seems an unlikely outcome given the findings of the sentencing judge that culpability was one of falling far below the relevant standard - equivalent to 'high culpability' under the guidelines - and the harm category was likely to be 2, at worst," he said.

"In those circumstances, the applicable range is between £220,000 and £1.2m with a starting point of £450,000. Although the Court of Appeal did not apply the guidelines, ending up at £750,000 reduced to £500,000 for the plea sits squarely within this range," he said.

The Sentencing Council's definitive guideline for use by the courts in health and safety, corporate manslaughter and food safety and food hygiene cases came into force on 1 February 2016, and was designed to ensure a consistent approach to the sentencing of individuals and organisations convicted of these offences by courts in England and Wales.

The guideline requires courts to first assess the overall seriousness of an offence based on the offender's culpability and the risk of serious harm, taking into account a non-exhaustive list of mitigating and aggravating factors. Fines are taken from a range depending on the size of the organisation based on turnover or the equivalent, and are designed to ensure much higher fines for the largest companies convicted of the most serious regulatory breaches.