County Court grapples with low value data breach claims

Civil engineering firm Kier has been fined more than £4m after its staff twice struck overhead powerlines while working on the M6 motorway causing cables to land in the path of passing vehicles.

Both incidents happened on overnight road works, part of the smart motorway scheme between junctions 16 and 18 near Sandbach in Cheshire. In one incident, the Kier workers brought down an overhead cable which hit a lorry. The second time, a cable landed on the motorway.

During the first incident, a team of three workers from Kier were working a nightshift on 28 March 2018. The workers were clearing tarmac from the hard shoulder and loading a truck with an excavator. As they moved the truck along with an attached loading bucket raised, it struck and severed a 11 kilovolts overhead powerline that landed in the motorway and in a nearby field. To give this context, the domestic supply to the average home is 240 volts. An investigation by the Health and Safety Executive (HSE) found that the company failed to immediately tell Scottish Power, which meant that the cable was reenergised a number of times while it was lying on the motorway and vehicles were passing.

During the second incident, another team from Kier were taking down a motorway barrier on 21 January 2019. Their crane struck an overhead cable which led to an unmarked 11 kilovolt powerline being hit and snapped by an oncoming lorry.

HSE found that inadequate planning from Kier meant the vehicle used in the first incident was unsuitable despite other more suitable vehicles being available. There was also no task-specific risk assessment available for the workers.

In the second incident, the workers were unaware of the overhead hazards.

In relation to the first incident, Kier pleaded guilty to breaching Sections 2(1) and 3(1) of the Health and Safety at Work etc. Act 1974. In relation to the second incident, the company pleaded guilty to breaching Section 3(1) of the Health and Safety at Work etc. Act 1974 and Regulation 13(1) of the Construction (Design and Management) Regulations 2015.

In total, Kier was fined £4.415m and ordered to pay costs of £80,759.60 at Manchester Crown Court on 12 January 2023.

HSE inspector Mike Lisle said: “This is a significant fine reflecting the seriousness of the failures here. The company’s failure to plan the work properly and provide an adequate risk assessment put its workers and those using the motorway in significant danger.”

Our Analysis:

This case is an example of the courts exercising its power to impose significant fines to organisations found to be in breach of its health and safety duties, especially where breaches are repeated and expose a large number of people to the risk of harm. It is worth noting that there is no report of injury to any worker or member of the public. However, the level of harm risked was death and this was reflected in the high level of the fine, which included a discount for early guilty pleas.

This sentence is also consistent with the trend of fines increasing over recent years, especially for large organisations found to be in serious breach of health and safety law as was the case for WH Malcolm Limited. The company was fined £6.5m following a successful prosecution brought by the Office of Rail and Road (ORR) after an incident in 2017 at Daventry International Rail Freight Terminal, where an 11-year-old child received a fatal electric shock. The investigation found that the child easily gained access to part of the site with his friends to retrieve a football. He was then able to climb on top of a stationary freight wagon where he received a fatal electric shock from the overhead line. For more information, please click the attached link to the ORR media release.

The prosecution of Kier serves as a reminder to organisations that the Courts do not reserve high level fines for cases where there is loss of life or catastrophic injury – only a risk of harm is required. Our key message to organisations that undertake such high-risk activities is that you should ensure that effective planning, management and monitoring is in place, in addition to ensuring that all those undertaking such works are appropriately trained and competent to do so.

How we can help …

Our national Regulatory team advises organisations across a diverse range of sectors on compliance with their statutory health and safety obligations, and help them to manage their response to major incidents, and to protect their interests, particularly when faced with the threat of investigation or prosecution by the regulatory authorities. We also offer a wide range of training sessions and workshops. You may be interested in our mock trial offering, which includes a service strike scenario and is an effective way to encourage a lasting cultural change within your organisation, and provides powerful motivation to ensure compliance. Please do not hesitate to contact us to discuss our services further.