Judges say £400k fine after worker lost toes in workplace accident was fair

Maintenance engineer, Peter Fairbrother, suffered ‘life-changing injuries’ when he was pulled into machinery at Diamond Box Limited’s Shaw Street plant in West Bromwich.

The corrugated cardboard box design and manufacturing business was founded in 2007, Mr Justice Hickinbottom told London’s Appeal Court.

Machinery used at the firm is ‘as long as a commercial bus’, he said, with cardboard fed into one end and passing through the machine at substantial speed on a conveyor system. Safety concerns had been expressed by a member of staff that a ‘serious accident’ could happen and, on May 28, 2014, ‘a serious accident did happen’, said the judge.

Mr Fairbrother’s left foot was pulled into the moving parts of the machine and he lost all of the toes. Now 70, he has been left with a serious disability, cannot work, has difficulty walking and had to move to live closer to his daughter.

The accident ‘changed his life considerably for the worse’, the judge added. A Health and Safety Executive (HSE) investigation found that the machinery had a ‘jog mode’, which could have been set up to enable maintenance work to be carried out safely.

But the company had not identified this, trained staff to use it or enforced its use. Diamond Box admitted breaching Section 2(1) of the Health and Safety at Work Act 1974.

It was fined £400,000 and ordered to pay costs of £9,886.04 at Wolverhampton Crown Court.The company, which had no previous convictions, taken steps to make sure there is no recurrence. Diamond Box’s lawyers argued that the fine was far too tough and should be reduced.

Over a seven-year period there had been ‘no accident and no incident leading to concern’, the judges were told. The fine was ‘disproportionate’ and too much for the company to have to pay, ’ the judges were told.

“It’s a competitive market with very low profit margins,” the company’s lawyers urged.

And they pointed to a net profit for the 16-month period up to March 31, 2016 of just £14,706. But Lord Justice Hickinbottom said dividends of £175,000 had been paid out during that same period.

And £405,000 had been set aside for ‘exceptional administrative expenses’.

That was made up of £125,000 reserved to pay for the accident fine and £280,000 for bad debt.

“The accounts clearly indicate that, even in the difficult year of 2015-16, a substantial portion of the fine could have been paid,” said the judge.

He added that the crown court judge had dealt with sentencing with ‘patent care’.

“We do not consider that his approach could be faulted, nor do we consider his conclusion was arguably wrong.

The judge added: “The consequences of that breach for Mr Fairbrother were in fact serious and life-changing. The fine imposed was unarguably fair.” and proportionate and not arguably wrong in principle or manifestly excessive

“This application for permission to appeal against sentence is refused,” concluded the judge, who was sitting with Sir John Royce and Mrs Justice O’Farrell.