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A Fatal Approach

As a well established After The Event insurance (ATE) broker, the core of our business over the years has been in the area of personal injury. In recent times and with the multitude of changes to this area, we have been asked by our customers to provide ATE insurance in other areas of work: financial mis-selling, conveyancing, employment tribunal and growing as far as Japanese knotweed claims (for which we have adopted a root and branch approach to developing a policy).

But we must also ensure that we do not forget that core of our business - arranging ATE insurance for lower value injury claims, catastrophic injury, industrial disease and fatal accident claims. Sadly, accidents continue to occur and one only has to read the HSE’s "Press Release” page to see that serious injury and fatal accidents continue to happen, far too frequently.

Looking at figures released by the HSE a total of 144 workers were killed at work in Great Britain in the period 2017/18, an increase of 9 fatalities from 2016/17. The HSE also reported that "In statistical terms the number of fatalities has remained broadly level in recent years – the average annual number of workers killed at work over the five years 2013/14-2017/18 is 141”.

That figure is of course far too high. There will always be pure accidents due to no fault of anyone, but equally accidents continue to occur as a result of the negligence of others, frequently employers.

And here comes the note of caution for those who may be held responsible for such fatal accidents. Whilst this may have slipped under the radar for many, back on the 31st July the Sentencing Council for England and Wales published new guidelines for sentences that are handed down from the 1st November and applicable in particular to convictions for Gross Negligence Manslaughter (GNM). Gross negligence manslaughter is only triable on indictment but for the most serious cases can carry a maximum sentence of life imprisonment. The new guidelines provide a sentence offence range of 1 up to 18 years in custody for the more serious cases. The court can also disqualify a defendant from being a director of a company for up to 15 years.

The law in respect of gross negligence manslaughter was clarified in the case of R v Adomako (1994) 3 All ER 79 where a four stage test, known as the "Adomako Test” was set out by the House of Lords:

The test involves the following stages:

  1. a) the existence of a duty of care to the deceased;
    b) a breach of that duty of care which;
    c) causes (or significantly contributes) to the death of the victim; and
    d) the breach should be characterised as gross negligence, and therefore a crime.

We have seen prosecutions for this offence recently and very close to home when two fairground workers were convicted of manslaughter by gross negligence following the death of a young girl. The pair responsible were each given custodial sentences of three years.

If convicted of gross negligence manslaughter after the 1st November, you may expect a longer custodial sentence to be applied. You have been warned!

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