09 December, 2019
Hampshire County Council has recently been sentenced and fined £1.4 million after being found in breach of s.3 (1) Health and Safety at Work etc. Act 1974. It has also been ordered to pay costs of £130,632
The circumstances of the breach arose, following an incident in December 2015, when a six-year-old girl climbed on to a cast iron hinged bollard when it fell to the ground taking her with it. According to the HSE, she suffered life-changing head injuries as a result of the accident and spent six months in hospital in a critical condition. It is understood that the full extent of the brain injury will not be known until her brain has matured.
The HSE carried out an investigation and found that the bollard was damaged and not appropriately secured. The damaged bollard had been reported to the County Council prior to the incident but it had not been repaired. In addition, the defective bollard had not been noted during monthly highway inspections. The HSE investigation also found insufficient instruction and training had been provided to the council's highway inspectors and that the inspection guidance was misleading.
This is a truly tragic case. Following the prosecution sentence, HSE inspector Angela Sirianni said: "Councils have a duty to adequately assess and control risks to members of the public from street furniture. A child has been left with life-changing injuries as a result of what was an easily preventable incident. Council inspections failed to identify this risk over a long period of time and then, when alerted to the damage to the bollard, failed to take the urgent action required to prevent injury."
The level of the fine reflects the Sentencing Guidance for such breaches. The Court takes into account the culpability and seriousness of harm and the likelihood of harm when assessing the level of fine based on the size of the organisation. The council's insurance arrangements would not usually cover fines in regulatory prosecutions on public policy grounds.
If the consequences of this tragic accident had been fatal then would the HSE have been investigating the council for possible Corporate Manslaughter and/or Gross Negligence Manslaughter charges too?
Whilst this is a significant fine for the Council, undoubtedly, there is also the inevitability of a civil claim to follow. Any resulting civil claim is likely to be covered by the council's insurance policy subject to any excess. Due to the serious nature of the child's injuries, her age, her recovery and prognosis and the future of cost of care etc., any civil claim may well run into the millions.
Accidents arising from street furniture have been before the Courts historically. It is perhaps worthwhile having a look at matters which arose in the Court of Appeal decision of Shine v Tower Hamlets London Borough Council (2006) EWCA Civ 852. In the leading judgment from Lord Justice Buxton, the Court found that there was no liability for bollards/street furniture under s41 Highways Act 1980 and/or s66 Highways Act 1980. However, liability for personal injuries caused by such defective street furniture may arise in negligence.
Shine concerned a 9-year child who attempted to leapfrog a bollard and the bollard he chose for this purpose was insecure, not properly secured to the ground and under impact wobbled causing the child to fall and injure himself.
Evidence was given that that the bollard in question had been identified as loose 3 months before the accident and that the council had not carried out repairs due to "budget restraints" until 5 months post-accident.
When considering negligence, the trial judge found that it was foreseeable that a child in the Claimant's position would quite likely leapfrog one of these bollards and it was in an insecure state which caused the accident and injury. The Court did not interfere with the trial Judge's conclusions that it was foreseeable that children may leapfrog over bollards.
The question that arose was whether the council were negligent in the sense of being culpable in not putting the bollard in order at the time when they came to know of its insecurity.
It was argued by the council before the Appeal Court, that it would place an undue and unreasonable burden on the local authority if it were to be held liable in these circumstances. The Appeal Judge rejected that contention and considered it was something that the Council should have done something about. It had a policy of inspecting the bollards and a policy of putting them into a safe state if they were found to be insecure.
The Appeal Judge applying the "balance test" came down firmly on the side of saying that it would not be an unreasonable burden on the council to have taken the precaution in this case of getting their bollard into its proper state.
This case highlights the need for highway authorities to respond promptly to complaints, to provide detailed guidance and training to highway inspectors and to issue comprehensive written inspection guidance, which deals specifically with street furniture and bollards.
 Source: https://press.hse.gov.uk/2019/12/04/hampshire-county-council-fined-1-4m-after-child-suffers-life-changing-head-injury/
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