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Pause for thought

18 November 2008

As readers of Control Engineering Europe it is a reasonable assumption that you are in some way involved in control, automation or electrical engineering. Some of you will work for large multi national corporations and some for smaller enterprise led organisations.

One thing though that we all have in common as practitioners of our craft is a legal responsibility to ourselves, our colleagues, the public and to the environment. The consequences for breaching this legal responsibility or ‘duty of care’ can vary from compensation to fines or even imprisonment.

In circumstances where there is a breach of a duty of care which is owed to an individual and this breach results in a fatality, the culpability and associated compensatory or punitive element is assessed against the seriousness of the breach. If the breach of the duty of care is so gross as to amount to a crime against the state, then it is very likely that imprisonment will result for the individual involved as well as fines and compensation to the victim’s family. This type of crime is referred to as gross negligence manslaughter. Case law for gross negligence manslaughter is currently predominantly in the medical profession where there is a greater ability to establish causation via the act or omission of a specific individual. Cases like Bateman [1925], Adomako [1994] and Misra & Srivastava [2004] demonstrate the judicial approach and commitment to this category of crime.

In situations like the above where there is a corporation involved as well as or in lieu of an individual the circumstances become more complex. How does the legal system identify how a corporation in a legal sense can be culpable? The route for this is now covered by the Corporate Manslaughter and Corporate Homicide Act 2007. The Act introduces a new offence, across the UK, for prosecuting companies and other organisations where there has been a gross failing, throughout the organisation, in the management of health and safety with fatal consequences.

In a legal sense a corporation acts through its ‘controlling mind’. Historically the ‘controlling mind’ of an organisation was the most senior of its company officials. This led to difficulties in assigning culpability due the inability to establish a clear causal link between the company acts or omissions and the fatality. The Act addresses this historical problem by creating a new and extended approach to the controlling mind principle via the nomination of senior managers.

An organisation is guilty of an offence if the way in which its activities are managed or organised by its senior management is a substantial element in the breach. A breach of a duty of care by an organisation is a ‘gross’ breach if the conduct alleged to amount to a breach of that duty falls far below what can reasonably be expected of the organisation in the circumstances.

‘Senior management’, in relation to an organisation, means the persons who play significant roles in:

(i) the making of decisions about how the whole or a substantial part of its activities are to be managed or organised; or
(ii) the actual managing or organising of the whole or a substantial part of those activities.

An organisation that is guilty of corporate manslaughter or corporate homicide is liable on conviction or indictment to a fine. Publicity orders may also be made.

Clearly individual and corporate responsibility is fundamental to a modern and responsible society and gross failures require punishment. However, training and competency must also be considered to be at the heart of these issues if the punitive and preventative purposes of the Act are to be effective.

Derek Green, managing director
ProtEx Group


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