The HSE Frys farce

Just before Christmas I reported, not for the first time, on the failure of the Health and Safety Executive to fully investigate, let alone prosecute, in the case of Frys Logistics Limited. To recap, Frys HGV driver Robert Palmer was given a prison sentence of eight-and-a-half years for causing the death of charity cyclists Andrew McMenigall and Toby Wallace in July 2013, in addition to a separate dangerous driving offence seven weeks later, again in the course of his employment with Frys.

Once Palmer was convicted, the agencies tasked with investigatory, enforcement and regulatory functions collectively downed tools, displaying a distinct lack of enthusiasm to examine Frys’ role in this tragedy.

An employer requiring a driver to work consecutive shifts, sending him out to drive exhausted with the predictable outcome that he fell asleep at the wheel, was seemingly not a management decision or an operational practice which rang alarm bells!

The policy says – pass the parcel

As previously reported, the HSE cited ‘Policy’ as the justification for their inertia, passing the parcel to the Crown Prosecution Service and Driver and Vehicle Standards Agency (DVSA), both of whom they claimed could prosecute. Despite the death of two members of the public, on a public road, caused by a driver whose employer both knew and directed his activities in terms of hours worked and driving while exhausted, this did not fit HSE’s policy or priorities for prosecution.

Given the collective failure of various agencies, including the HSE, to communicate, work together and address road safety issues, I wrote to the CPS before Christmas summarising each agency's excuses for inaction, and asking them to liaise and consider whether one agency should now pursue a Health and Safety at Work Act (HSWA) or corporate manslaughter prosecution against Frys.

The CPS are now apparently waiting for a response from the HSE. However, now is probably an appropriate time to refer them to the case of Baldwins Crane Hire (Baldwins), which was reported the same day I last wrote about Frys, and remind them of the recommendations made last March by the Transport Safety Commission Inquiry Report, 'Who should be responsible for road  safety (TSC report), which they choose to completely ignore.

The policy says we can ignore the protocol – said Sir Humphrey      

In the Frys case the HSE knew nothing about two cyclists’ work-related deaths (caused by somebody driving in the course of their employment) until 16 months after Palmer drove into them, despite the fact that the police were immediately involved. Curious, given that the CPS have a protocol document, agreed with both the police and the HSE, entitled ‘Work-Related Deaths: A protocol for liaison.

The protocol has been in existence since 1998 and refers to co-operation between the police and HSE, joint investigations and co-ordinated decisions. It’s a shame nobody from the police, CPS or HSE has referred me to it previously, or explained why they ignored it. I was reminded of it when I read about Baldwins.   

Public and private roads, policies and procrastination

The BBC reported on 22 December 2015 that Baldwins had been fined £700,000 and £200,000 costs following a conviction for both corporate manslaughter and offences under sections 2(1) and 3(1) of HSWA  (general duty of employers to ensure the health and safety of both their employees and the public). Subsequent reports referred to a joint investigation by Lancashire Police, working closely with the HSE , with both police and HSE spokesmen commenting on the successful prosecution. So why couldn’t they work together on the Frys case?

The Baldwins case involved 49-year-old crane driver Lindsay Easton, who died in a crash after the brakes on the crane he was driving failed as he was travelling down the hill from Baldwins’ site. Different facts to the Frys case, but similar management failings. Detective Inspector Elston from Lancashire police commented on:

1. The tragedy being entirely avoidable had the company acted responsibly.
2. This being an accident waiting to happen.
3. The company showing a complete disregard for the safety of their employees and other road users.
4. The company and those controlling it overlooking various safety issues in the pursuit of profit.
5. The gross failings of the company’s management leading to this death.

Now read the five bullet points above again, and apply them to Frys and what happened to Toby and Andrew. Each equally applies to Frys’ management decisions, except policy in the Frys case dictates no prosecution!

The Baldwins case shows that juries are prepared to convict companies for corporate manslaughter and HSWA offences where there are serious management failings amounting to a gross breach of their duty of care. But the HSE appear frightened of opening up Pandora’s Box and accepting any investigative or prosecutorial responsibility when deaths occur on public roads.

Reading through the Baldwins reports it seems that the crash occurred while Lindsay Easton was still on a private road, just before he hit the public highway. Under their policy it seems that if his brakes had failed a few seconds later, and he had crashed into road users on a public road, this would no longer be a HSE priority for prosecution. Nothing arbitrary there then.

Ignoring the Transport Safety Commission – HSE know best

Surely this farcical position has been raised with the HSE before? Well yes, the TSC report flagged it up as one of their key recommendations.

The Co-Chair of the report, Professor Stephen Glaister, pointed out that ‘Around 30% of road deaths occur during the course of employment and greatly exceed those occurring in the workplace, yet the Health and Safety Executive’s priorities do not include work-related road safety.’

Around 30% of road deaths occur during the course of employment and greatly exceed those occurring in the workplace, yet the Health and Safety Executive’s priorities do not include work-related road safety.

Professor Stephen Glaister, Co-Chair Transport Safety Commission Inquiry Report

The TSC report further expressed disappointment by the approach of the HSE to this area of workplace safety, recommending that the HSE changes policy so that employers have to report when someone driving or riding for work injures a member of the public, and identifying that this would help ensure that these injuries were managed and investigated in commensurate manner to those sustained in a fixed workplace.

We will only hear what we want to hear

It would seem that the TSC shared my inability to understand why the HSE drew a distinction between the impact of grossly negligent management decisions dependent on whether the employee had a fixed or mobile workplace.

For balance, when criticising the HSE for turning a blind eye to both the TSC report and the issue of work-related road casualties, I do have to acknowledge that the TSC report also called for Government to recognise the HSE’s wider role, which means being adequately resourced. Unfortunately the report’s recommendations also included:

1. Improved arrangements for accident investigation so that learning is separated from prosecution.
2. The creation of an advisory body for road safety independent of Government.
3. The setting of ambitious road casualty reduction targets by the Government.

As no action has been taken to implement these and other recommendations, the HSE do have a point that they are not the only ones with their fingers in their ears repeating the same mistakes and hoping for a different result. But the HSE champion the importance of systems and procedures in the workplace. They highlight negligence and management failures. It is thus grossly negligent of them to ignore the most blatant examples by the employers of drivers on our roads.   

Management, systems and casualty reduction – ‘You what,’ said HSE

Unfortunately, the pass the parcel game in Frys is not an isolated example. The HSE in particular appear to have some difficulty understanding the overlap between road traffic law and operational and management practices which impact on both road safety and the number of collisions.

Tom Kearney has been tirelessly campaigning about safety issues for vulnerable road users, particularly in London through his Safer Oxford Street Blog, ever since he recovered from a coma as a pedestrian casualty of a Transport for London (TfL) contracted bus in 2009. In 2013 Tom wrote to the HSE in London regarding the number of people killed or seriously injured (KSIs) in collisions with buses under direct contract to TfL, having been told by TfL, quite remarkably, that they did not hold various information, including that regarding prosecutions and convictions of bus drivers.

Having raised a concern regarding TfL’s duty of care regarding its own contractors, and how they perform TfL contracts, Tom received a letter in response from the HSE indicating that ‘Road traffic law is enforced by the Police, and others such as the Vehicle and Operator Services Agency (role now replaced by DVSA) and Traffic Commissioners’. Tom was not asking about road traffic law. He was asking questions relevant to operational management, systems and casualty reduction through learning from past mistakes.

Tom’s HSE response also echoed the letter I received from the HSE regarding Frys, with the statement that ‘HSE do not generally become involved in road traffic incidents, unless they are in specific work-related situations (eg: refuse collection, hedge cutting and similar). The police and others such as VOSA are better placed to deal with incidents that occur on public roads and enforcing road traffic legislation.’

So the HSE completely missed the point of Tom’s inquiry, gave a standard response and, not for the first or last time, passed the parcel to another agency.

Who put Putz behind the wheel?

I started this blog referring to the Frys case, which I have commented on many times. Sadly this is not the first time questions have been asked about the decision made by a corporate employer when putting a driver behind the wheel of a HGV prior to the death of a cyclist.

In November 2010, 51-year-old lorry driver Dennis Putz was jailed for seven years for causing the death of cyclist Catriona Patel. Putz was over the alcohol limit and talking on his phone when he pulled off from traffic lights and drove over Catriona, who died three hours later.

Who could predict the consequences?

It was predictable in the Frys case that an exhausted driver might fall asleep at the wheel, and that the consequences could be devastating. That Putz was a high-risk driver, and likely to commit dangerous road traffic offences, was also predictable. He had 20 previous disqualifications from driving, including three for reckless driving and three for excess alcohol, and had been jailed twice before for driving offences.

Not really surprising, then, that Putz re-offended. Perhaps what is surprising is that his employer, Thames Materials, either failed to properly check his driving record before employing him as a HGV driver, or, having checked his record, still thought it was safe to employ him.

Thames Materials were not prosecuted over Catriona’s death. Neither were they prosecuted when, six months later, another of their trucks crashed through the central reservation of the A4 at Chiswick, killing a Japanese businessman travelling in a taxi.  

Difficult questions? Sounds like hard work

At the time of Catriona’s death, cycle campaigners led by the London Cycling Campaign raised questions as to how Putz had been allowed to drive a HGV. Having pressed for many months for answers to my questions in the Frys case, I can understand their frustration with the lack of any clear response. But if the HSE’s approach to investigating Frys and their automatic recourse to ‘policy’ to justify inaction is anything to go by, I find it hard to imagine that the HSE asked many difficult questions of Thames Materials. It must however be said that Thames Materials appears to have made significant efforts over recent years to address safety issues following these two tragadies.

To conclude, and as I am yet to receive a response from the CPS following their further discussions with the HSE, I will now be writing to the CPS again, pointing out the protocol that they all ignored, the TSC report recommendations, and questioning why, if the CPS and the HSE can get their act together in a case such as Baldwins, common sense can’t prevail in cases on the public roads.  

It's time the HSE realised that protecting the public on public roads from the consequences of dangerous and negligent management practices by those who employ drivers, and put them on the roads, is – strangely enough – a Health and Safety issue that actually matters to people.