'Eye-watering' Network Rail fine just the start for largest health and safety offenders, says expert

Out-Law News | 23 Sep 2016 | 4:38 pm | 2 min. read

The record fine imposed on Network Rail for its culpability in the death of an 82-year-old woman on a level crossing is "likely to be only the tip of the iceberg" for large businesses sentenced for health and safety offences under new guidelines, an expert has said.

Network Rail was fined £4 million at Ipswich Crown Court this week for its role in the death of Olive McFarland at the Gipsy Lane crossing in Needham Market, Suffolk in August 2011, according to the BBC. The fine would have been £6m had the company not pleaded guilty at the first opportunity, the BBC said.

"This is the largest indicated fine to date, before the discount for a guilty plea is applied; and the £4m figure is the largest single fine for a single fatality," said health and safety law expert Kevin Bridges of Pinsent Masons, the law firm behind Out-Law.com.

"Network Rail had a turnover in 2015 of £6 billion. That makes it a very large company. It is not clear if the court when sentencing went outside the range for large companies or not - if it didn't, then the indicated £6m fine would be at the very top of the range for 'high culpability harm' category 1 offences," he said.

"These are eye-watering figures, but I suspect they are likely to only be the tip of the iceberg as the guidelines provide for, and therefore courts must have regard to imposing, even higher fines than these. Proportionality may therefore dictate that fines could get even higher in the future," he said.

Network Rail pleaded guilty to a breach of section 3 of the 1974 Health and Safety at Work Act following an investigation and prosecution brought by the UK's rail regulator, the Office of Rail and Road (ORR). During its investigation into the 2011 incident, the ORR found that Network Rail had failed to act on "substantial evidence" that pedestrians were at increased risk of being struck by a train on the crossing, due to the lack of visibility.

Following the incident, Network Rail "acted immediately" to improve safety at the crossing by redesigning its layout and implementing a speed limit for passing trains, which remains in place, according to the ORR. Network Rail has closed over 1,000 level crossings with the ORR's encouragement since 2009/10, and plans to replace the Gipsy Lane crossing with a footbridge, the ORR said.

Ian Prosser, chief inspector of railways at the ORR, said that Network Rail's safety management "fell below the standards required" at the time of the incident.

The largest companies convicted of the most serious regulatory breaches have since February faced much higher fines under a new sentencing guideline, designed for use by courts in England and Wales in health and safety, corporate manslaughter and food safety and food hygiene cases. Courts must now first assess the seriousness of the offence based on the offender's culpability and the risk of serious harm, taking into account a non-exhaustive list of mitigating and aggravating factors. Fines are taken from a range depending on the size of the organisation, based on turnover or the equivalent.