Laws on corporate killing will be on their way by autumn. So what should companies do to ensure minimum exposure to the risk?

Legislation to be introduced in the autumn will create a new offence of corporate manslaughter. In this context it is the unlawful killing of another by "gross negligence". The offence at present is contrary to the common law, with no legislation covering it. But that will change.

It was originally thought that a corporation could not be guilty of manslaughter. However, in P & O European Ferries (Dover) Limited (1991), the judge concluded the doctrine of identification made it possible to impute mens rea to a corporation. All that was required was to establish a "controlling mind" within the company responsible for the gross negligence, so that both an individual and the company could be prosecuted for the offence of manslaughter. But the new legislation will not be targeting individuals within a company, such as directors.

So far, the prosecutions that have been successful have been against small companies where individual directors are easily identified, and have not been able easily to divest themselves of the responsibility of being the "controlling mind" responsible for the "gross negligence" occasioning the fatal accident.

Assuming the government adopts the proposals of the 1996 Law Commission, there will be a special offence of "corporate killing", broadly corresponding to the individual offence, "killing by gross carelessness".

Furthermore, the corporate offence should be committed "only where the defendant's conduct in causing the death falls far below what should reasonably be expected". Unlike the individual offence the corporate offence now should "not require that the risk be obvious, or that the defendant be capable of appreciating the risk".

For the purposes of the corporate offence, death should be regarded as having been caused by the conduct of a corporation "if it is caused by a failure in the way in which the corporation's activities are managed or organised, to ensure the health and safety of persons employed in or affected by those activities".

The Law Commission's proposals were that for reasons of deterrence and to facilitate enforcement:

  • Any body corporate wherever incorporated which does business in England and Wales will be covered
  • Parent companies will have to pay any fines, thereby stopping large corporations getting small subsidiary companies with few resources to undertake risky work on their behalf
  • A provision for freezing a company's assets at the stage of investigation before proceedings are even commenced.
  • The proposals include schools, hospitals, partnerships (including law firms), and incorporated bodies.

    Any company should undoubtedly now appoint, if they have not already done so, a director responsible for health and safety plus a committee to assist. They should consider the working practices of the particular company and have in writing:

    All relevant method statements, risk assessments, etc., and not rely upon word of mouth

  • Directives for action to be undertaken involving safety
  • All training courses undertaken by an employee should be evidenced by records signed by the employee and employer's representative. Where appropriate, outside instructors should be invited to undertake the instruction of employees to ensure objective, as well as up to date, methods are incorporated.
  • Likewise, outside experts, for example, engineers, should carry out work within the company to ensure that equipment is safe, and that employees are trained satisfactorily upon such equipment. Records of the installation and servicing of equipment, and records of training, must be retained by the company itself.

    There must be regular meetings of the health and safety director with his committee and indeed, with his fellow directors, to ensure that all are au fait with decisions and practice, and records of such meetings must likewise be retained by the company. With the recent introduction to most large companies of electronic record-keeping, there must be no temptation to forego signatures on training documents, by all means scan the records, but have the paper copies retained somewhere.

    A company must ensure that its equipment is checked regularly and available for use on every occasion that such equipment is necessary. It is no use explaining that all the ladders are out, so you will have to do your best by climbing up the framework outside a building. Where problems of absence of equipment occur, it must ensure that no short cuts prejudicing safety are taken.

    When the accident occurs, as almost inevitably it will, it is absolutely crucial that from the word "go" the company's insurers for public liability insurance, or employer's liability insurance (whichever is appropriate) be notified.

    Most policies include legal representation as part of the service provided by the insurers, and it is absolutely essential that their lawyers be notified to act from the outset in conjunction with the insured. Whether it is for the protection of the company or individuals, legal representation at interviews under caution with the HSE or the police, as well as at trial, is extremely important.

    The individual, whatever his background and experience, will find this an extremely intimidating experience.

    Peter Thompson is a consultant in the personal injury division at Davis Lavery