The High street retailer New Look lodged an appeal against its record £400,000 fine for fire safety breaches at its Oxford Street store and this has now been dismissed by the Court of Appeal.
The background of this case is that in November 2009, the London Fire Brigade prosecuted New Look following a serious fire at its Oxford Street store on 26 April 2007. During the fire thirty fire engines and around 150 firefighters were needed to tackle the blaze. The operational firefighting crews had to remain at the scene of the fire for the next three days.
There was an initial delay because the first call to the Brigade was made from an employee who was working in an adjacent building. When the first crews arrived they found that the fire had by that time developed and taken hold and had broken through the second floor windows. The prosecution revealed that despite the building’s fire alarm sounding, it had been reset on at least one occasion. The actual cause of the fire has never been ascertained.
This major fire caused the evacuation of nearly 500 people from the store itself and from surrounding properties and a substantial part of Oxford Street had to be kept closed to both the public and all traffic movement.
The company pleaded guilty to serious breaches of the Regulatory Reform (Fire Safety) Order 2005 and was fined £400,000 and ordered to pay £136,052 in costs. Currently this fine is the largest financial penalty to date under the Fire Safety Order.
In the appeal, the company argued that the sentencing judge and a senior Circuit Judge HHJ Rivlin, had not given sufficient weight to the fact that neither individually nor cumulatively were the breaches of duty linked to the cause of fire, nor did the fire cause injury or death.
It was submitted that the sentencing judge had applied a higher presumed standard of seriousness to breaches of fire safety responsibilities than he would for breaches of duty towards employees and visitors under the Health and Safety at Work etc. Act 1974. These submissions were not accepted by the Appeal Court.
The Court of Appeal agreed with the sentencing judge that a court does not have to wait until death or serious injury has occurred to express its displeasure at breaches of responsibilities under the Order.
The decision on the appeal states:
“We share the judge's view that the appellant's performance of its fire safety duties in a large department store in the centre of London was lamentable. The fines were, we recognise, severe, but they were not in our judgment manifestly excessive.”
Councillor Brian Coleman, Chairman of the London Fire and Emergency Planning Authority, said:
”I agree with the judge's view that New Look’s performance on fire safety at their Oxford Street store was lamentable. Businesses like New Look are legally responsible for ensuring that their customers and employees are safe from fire.
“We welcome the guidance given in today’s judgement and it is clear that the courts do not have to see a death or serious injury to hit a company with a substantial fine.”
In a statement issued after the judgement, a spokesperson for New Look said:
"New Look is committed to putting the health and safety of customers and employees first. Although the appeal against the fine was unsuccessful, we note that the original 35 alleged breaches of the Regulatory Reform (Fire Safety) Order 2005 (RRFSO) were reduced to two offences and at no time has it been alleged that the company was either responsible for the fire, or that its breaches of the RRFSO caused the fire."
Commenting on the outcome of this appeal, David Jones, CDM2007.org’s Editor-in-Chief points out that although this fire was not associated with construction operations, those CDM duty holders involved in construction operations also have fire safety duties under the Regulatory Reform (Fire Safety) Order 2005.
Fire on construction sites needs to be understood by the CDM duty holders and the holistic modular training of the CDM2007.org courses includes detailed training and essential knowledge in this important competence.
It is important to realise that just because there was no serious injury or fatality this somehow provides a reliable excuse or defence against prosecution. Relying upon luck and good fortune is no substitute for having well defined policies, procedures, and rules in place and having all of that properly followed and complied with by competent and knowledgeable persons.
Another submission the Appeal Court rejected was the claim that the sentencing judge had applied a higher presumed standard of seriousness to breaches of fire safety responsibilities than he would for breaches of duty towards employees and visitors under the Health and Safety at Work etc. Act 1974 [HASAW]. It is interesting to note that the tariff under HASAW is set out in clause 33 which was recently all increased by the enactment of the Private Members’ Bill into new UK law as the Health and Safety (Offences) Act 2009.
Ed.
