NEWS

02 Aug 2021

£6.5 million fine for logistics company after tragic death of an 11 year old boy

What is believed to be the largest health and safety fine in two decades was imposed on W H Malcolm Ltd last week for their failings at their facility in Northamptonshire, in a case which has serious implications both for the rail industry and others.

David Travers QC of Six Pump Court Chambers , leading Alexander dos Santos of Serjeant’s Inn, instructed by the ORR prosecuted the logistics company after it’s workplace failures led to the tragic death of an 11 year old boy at the Daventry International Rail Freight Terminal. The young boy, Harrison Ballantyne, and a number of his friends had been able to gain easy access to the rail infrastructure in a search for a lost football. Harrison climbed on top of a wagon stabled beneath Overhead Electric Line Equipment energised at 25kV and sustained a fatal electric shock. After a 4 week trial in Northampton Crown Court before HHJ Lucking QC the company were convicted of an offence against section 3 of the Health and Safety at Work etc. Act and another of failing to make a suitable and sufficient risk assessment on 7 July 2021 contrary to regulation 3 of the Management of Health and Safety at Work Regulations.

On Friday 30 July the company was sentenced to a fine of £6.5 million and ordered to pay the costs of the Office of Rail and Road of just over £240,000. This fine is believed to be the largest health and safety fine since the fine imposed on Balfour Beatty Rail Infrastructure Services Ltd. following the Hatfield rail crash.

In her sentencing remarks the learned judge observed that “In contesting this matter the company did not take responsibility for what was, on the evidence at trial, a serious and obvious failure to prevent public access to a highly dangerous environment.

The company had an annual turnover consistently in excess of £200,000,000.

Applying the definitive guideline the judge found that the defendant’s culpability was High, the Harm Category was 1 (a high likelihood of Level A harm) and mindful of the number of children exposed to the risk she concluded it was necessary to move up a category at step 2. Considering also, the dicta in Whirlpool Appliances Ltd [2018] 1 Cr.App.R. (S.) 44. as to the effect of death on sentence she moved to a starting point of £4m and a range of £2.6m to £10m.

As to mitigating and aggravating features; although she accepted that the company had carried out remedial work beyond that considered necessary, the poor enforcement history taken with the inexplicable failure to carry out steps identified years before Harrison’s death and the grave effect of Harrison’s death on at least three of the children present when he died, led the learned Judge to conclude a fine of £6.5 million was appropriate.