In light of the recent tragic event in Harlow in Essex how confident are you that you are fully covered for any Health and Safety incidents in your day nursery? Tragically a seven year old girl was killed a few weeks ago when a bouncy castle blew away during an event. It was widely reported at the time that a man and a woman, thought to be connected to a family run company had been arrested on suspicion of manslaughter by gross negligence.
There has been much talk over the last few years of the relatively new offence of corporate manslaughter and how that has taken effect but what many people don’t realise is that the offence of manslaughter by gross negligence still remains and that is alleged against the individual - not just the corporate body - where it is deemed appropriate. If a similarly tragic accident were to occur on any nursery property, it is highly likely that the Health and Safety Executive (HSE) and police would commence criminal investigations. Even for experienced professionals, it can be extremely frightening to face such an allegation.
To be clear, in order to be found guilty of manslaughter by gross negligence the prosecution would have to prove that a duty of care existed between the alleged offender and the victim. Furthermore, there would have to be a breach of that duty of care which caused or significantly contributed to the death of the victim and that the breach could be said to be grossly negligent.
As well as the criminal implications there is also the regulatory aspect to consider. Ofsted are the regulators in services and care for children and young people. Ofsted are likely to get involved immediately to ascertain where failings exist and look to see if any relevant errors had been identified during previous inspections. This could then lead to a loss of registration and the business being unable to trade.
The legal issues involved in the health and safety regulations and legislation are so complex it would be very difficult for anyone to defend themselves without expert help from an experienced solicitor. Equally it is important that these risks are considered when taking out insurance cover. One way through this would be to consider an add-on policy, covering the cost of legal fees for Directors and Officers. Nobody ever thinks they will need such cover, but when tragic accidents happen, it is vital that you are able to protect yourself and your business without worrying about the cost.
For more information about our regulatory and criminal law services, contact Stephensons on 0175 321 6399.