Any person who holds property, authority, or a position of trust or responsibility for the benefit of another is a trustee. Also a trustee can be a person who is allowed to do certain tasks but not able to gain income (Wikipedia). For this reason, many Landed Estates choose to appoint solicitors as trustees.
Landed Estate trustees may not be aware that they could be personally liable for a criminal prosecution should any employee, visitor or contracted service provider be injured or killed on the estate.
The Corporate Manslaughter and Corporate Homicide Act 2007 means that companies and organisations can be found guilty of corporate manslaughter or homicide (in Scotland) if its activities are managed or organised in such a way that
- Causes a person’s death, and
- Amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased.
The introduction of the act makes an organisation liable if a fatality results from the way in which its activities are managed or organised. Corporate manslaughter is an extremely serious offence, reserved for the very worst cases of corporate mismanagement leading to death. Courts will look at management systems and practices across the organisation, and whether an adequate standard of care was applied to the fatal activity.
Juries will be required to consider the extent to which an organisation was in breach of health and safety requirements, and how serious those failings were.
They will also be able to consider wider cultural issues within the organisation, such as attitudes or practices that tolerated health and safety breaches.
You cannot insure against a criminal prosecution
There are two types of law, criminal law that enforces a code of conduct and allows the state to punish and civil law which enables an individual who has suffered harm to seek compensation or an injunction to prevent harm (or further harm) from occurring.
You can insure against the costs of a civil law suit, such as negligence, but not against a criminal offence.
Health and Safety prevention
It is imperative that trustees ensure there is adequate health and safety in place not only for their direct employees and visitors but that their contractors also have robust policies in place, so hire from an approved list of contractors that have provided evidence that they comply and enforce all health and safety requirements.
Health and Safety at Work Act 1974 (HSWA) is the primary piece of legislation covering occupational health and safety in Great Britain. Under the Act, employer’s duties include:
- Protect health, safety and welfare of employees;
- Provide and maintain safe systems of work;
- Ensure safety in the use, handling, storage and transportation of articles and substances;
- Provide information, supervision and training;
- Provide safe places/environment for work, with safe access and egress;
- Provide adequate welfare facilities and arrangements;
- If five or more people are employed at any one time for a single undertaking – produce written health and safety policy;
- Protect people not in their employment that may be affected by their operations;
- Consult safety representatives and establish a safety committee when requested by two or more safety representatives;
- Provide free of charge items required by statutory provisions.
- Employees’ duties include:
- Take reasonable care for themselves and others who might be affected by their acts or omissions;
- Cooperate with their employer or other person so far as is necessary to enable them to comply with their own statutory duties and requirements;
- Not intentionally or recklessly interfere with or misuse anything provided in the interests of health, safety or welfare.
Since 1974 a ‘Six Pack’ of regulations have developed that enact a number of European Union Directives. The regulations are:
- Management of Health and Safety at Work Regulations 1999 – MHSWR;
- Workplace (Health, Safety and Welfare) regulations 1992 WHSWR;
- Health and Safety (Display Screen Equipment) regulations 1992 – DSE;
- Personal Protective Equipment at Work regulations 1992 – PPE;
- Manual Handling Operations Regulations 1992 – MHOR;
- Provision and Use of Work Equipment regulations 1998 – PUWER.
So what impact does this have on modern landed estates?
Trustees must ensure that written risk assessments cover each aspect of the estate and any public access and that third party liability insurance is in place. And it is imperative that all estates must write and implement a robust health and safety report which is kept under constant review. This will not only limit the chances of injury or death but will minimise the risks of a criminal prosecution due to gross negligence.