Earlier this year a criminal manslaughter case began against Gillian Beckingham, head of design services for Barrow-in-Furness council, and the council itself, in connection with the deaths of seven people from legionnaires' disease.
The case against Beckingham, which at the time of going to press is partly still pending, illustrates a bold new approach by the Health and Safety Executive in bringing criminal prosecutions not just against a company responsible for the breach of health and safety, but also against middleranking management employed by the organisation concerned.
Beckingham was responsible for the council's maintenance contracts, including the air-conditioning system for the main arts centre. She cancelled the maintenance contract in 2002 and failed to enter immediately into a replacement contract. Several months later, she put in place a new maintenance contract, but, crucially, it failed to provide for the water treatment of the art centre's rooftop cooling towers.
One of the council's service engineers warned Beckingham that lack of maintenance to the cooling towers could create the ideal conditions for the legionella bacteria to fester and spread. The bacteria did indeed lead to seven deaths, while 172 others also contracted the disease.
Both Beckingham and the council were charged with manslaughter in relation to each death and breach of the Health and Safety at Work Act 1974. The Act requires steps to be taken to ensure that others are not exposed to risks to their health and safety, and makes individuals liable for breaches by their company if they cause, consent or agree to the commission of an offence.
While Beckingham denied all charges, Barrow council admitted the health and safety offence but denied liability for manslaughter. The council was subsequently acquitted of manslaughter. On 21 April Beckingham was convicted of one charge under Section 7 of the Act, which relates to 'failing to take reasonable care for the health and safety of members of the public'. At the time of writing, the jury was still deliberating the manslaughter charges.
The basis of the manslaughter charge against Beckingham was gross negligence, requiring it to be shown that the defendant owed a duty of care to the deceased; this duty had been breached;
such a breach was a substantial cause of the deaths; and was so grossly negligent as to be judged criminal.
The necessity to prove that the breach was so grossly negligent as to constitute a criminal disregard for the life of the deceased, differentiates the requirements for a criminal charge from a civil claim. There is no formula for this; it is a matter for the jury to decide - beyond reasonable doubt - on the individual facts of each case.
In relation to a charge of corporate manslaughter, it is necessary to prove:
l the defendant is a company, or corporate body, rather than a partnership or other form of enterprise (it should be noted that local councils are corporate bodies by virtue of Section 2 of the Local Government Act 1972);
. an individual within that company is of such seniority and has such obligations that they can be said to be the 'controlling mind' or 'directing mind' of the company in this regard; and . the individual is guilty of manslaughter through gross negligence.
If the individual is not liable or cannot be demonstrated to be the 'controlling mind', the company cannot be held criminally liable. It is not possible to aggregate the negligence of a number of senior individuals.
One 'controlling mind' must be guilty of manslaughter before corporate manslaughter can be proved.
While the 'controlling mind' will usually be a director or senior officer carrying out a management function, if the board has delegated part of the functions of management to an individual with full discretion to act independently, that delegate can also be considered to be a 'controlling mind'.
While it is difficult to establish an individual as the 'controlling mind' of a company in relation to large organisations, it is far easier to demonstrate that an individual is the 'controlling mind' of a small company.
The civil court has decided that in such a situation, which was obviously dangerous, a person involved in the project (eg another contractor) who knew that the situation was dangerous, had a duty to warn their employer of the danger.
The duty to warn is not a separate and independent duty, but part of the duty of skill and care a person providing services to an organisation owes to that organisation. In this case, the services engineer had warned the council as to the dangers. Had it not, its failure might have resulted in civil proceedings for damages being brought against it.
While the case of manslaughter against the council has been dismissed, and whatever the outcome of the manslaughter charges against Beckingham, there are clearly lessons to be learned so others can avoid finding themselves in their shoes.
Peter Morris is a partner and head of construction and James Levy is a solicitor at Lewis Silkin. Tel: 020 7074 8000