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Thyssenkrupp Sentence a relevant contribution to
the improvement of safety and security in the
workplace
Luciano Butti Lawyer - BP Lawyers (Verona,
Italy) Professor of International Environmental
Law, Faculty of Engineering - Department of
Environmental Engineering, University of Padua,
Italy e-mail luciano.butti_at_buttiandpartners.com
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VOCE FEMMINILE 118 emergenza. VOCE MASCHILE
Sono della Thyssenkrupp in Corso Regina, senta è
successo un incidente, ci sono tre o quattro
ragazzi bruciati. VOCE FEMMINILE Quattro
bruciati o carbonizzati? VOCE MASCHILE Non son
carbonizzati, però abbiamo cercato di spegnerli,
senza vestiti, senza niente sono VOCE MASCHILE
(IN LONTANANZA) Non voglio morire.
Voice 1 - woman hello 911 Voice 2 - man Im at
the Thyssenkrupp plant on Corso Regina, an
accident occurred, there are three or four burnt
men. Voice 1 - woman Burnt or charred? Voice 2 -
man Theyre not charred, but we tried to snuff
them out, they dont have their clothes
anymore.. Voice 3 - man (in the distance) I
dont wanna die..

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November 14, 2011 at 15.03 this annotation,
which specifies the exact time when the
decisions grounds deposit occurred, gives the
idea of how extremely serious this tragic episode
was, and what was the Courts attitude towards
this case. In 2007, due to a raging fire which
broke out in a Thyssenkrupp steel plant located
in Turin, 7 workers died. The Turin Criminal
Court delivered a verdict of guilty, with severe
punishments over the defendants and the Company
(according to Law Decree n. 231/2001). This
sentence is destined to acquire an utmost
importance within the field of safety and
security in the workplace, in our Country and
abroad. Despite the fact this pronounce is not
definitive, it caused different reactions.
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Main points at issue
1. Several elements of this sentence can be
useful in order to improve safety and security
standard
2. The recklessness issue one of the defendants
charged with murder (the CEO of the Company) was
condemned with a more severe punishment, because
of his particular state of mind.
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1. Issues raised by the sentence which could help
companies in improving security in the workplace
(1)

1. Violation of principles regarding standard
   quality management the efficiency of the
   Secutity Manegement Model adopted by the Company
   depends on its attitude when troubles occur. The
   Company must analyze hitches and troubles,
   considering them as useful signals for improving
   security.

• In occasion of previous fires, the Company
  underestimated and sometimes hid the gravity of
  the accidents (e.g. with insurance companies).

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1. Issues raised by the sentence which could help
companies in improving security in the workplace
(2)
b) This Companys attitude, in occasion of
previous accidents, led to a delay in alerting
the fire department. The authorities used to be
called only after several complex internal
communications.

• The Precautionary Principle, now part of the UE
  Treaty, require to exceed in caution and
  prudence, rather than underestimating risks. If
  during the previous accidents the authorities
  were involved, probably they would have noticed
  lacks and defects of the security system within
  the Company.

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1. Issues raised by the sentence which could help
companies in improving security in the workplace
(3)
c) Lack of security training according to the
sentence, Companys workers had not been
adequately trained. The staff was not prepared to
deal with an emergency occurring at the
workplace. This unsufficient training itself is a
breach of law (art. 22,6 of Law Decree 626/1994,
concerning safety and security at the workplace,
still in force in 2007). Given that security
training classes were often held after working
hours, the Company could not force its employees
to attend them. Actually this situation seems to
have came into being due to a tacit agreement
with labor unions.
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1. Issues raised by the sentence which could help
companies in improving security in the workplace
(4)

• Security standards improvements often depend on
  bureaucratic and annoying activities, such as
  security training. However, since these
  activities are required by law, the Company must
  perform them.
• Labor union representatives, on the other hand,
  underestimated the importance of such training
  classes. They should reflect on their
  responsibilities and be more self-critical on the
  attitude they kept in this regard.

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1. Issues raised by the sentence which could help
companies in improving security in the workplace
(5)
d) Inadequate risk assessment procedure the
Companys Risk Assessment Report shows laks and
inconsistencies, causally linked to the accident.
According to this report the risk at the steel
plant was medium, instead of high.
? The Risk Assessment Report is not a
bureaucratic duty, to be assigned to an expert,
without the involvement of the Companys
governance.
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2. The recklessness issue (1)
One of the defendants (the CEO of the Company)
was condemned with a more severe punishment, due
to his particular state of mind.

• To my opinion, the grounds of the decision in
  this regard are unconvincing and unclear. There
  is a concrete possibility that the Court of
  Appeal will differently assess the agents state
  of mind, and consequently the gravity of the
  fault.
• We need to clarify some fundamental notions
  according to italian criminal law and english
  criminal law, in order to understand the current
  debate regarding such issue.

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2. The recklessness issue (2)
Defendants state of mind in Italian criminal law
Dolo (direct intention) The highest degree of fault. The conduct achieves the desired result.
Dolo eventuale (recklessness) The actor does not desire the harmful event, but foresees the concrete probability and consciously takes the risk. This state of mind is not ruled by the Italian law it has been defined by Courts.
Colpa cosciente (aware gross negligence) This state of mind is somewhere between recklessness and gross negligence. The agent was actually aware of the possible harmful consequences of his conduct, but he felt confident that such consequences would not occur. The action exceeds the bounds of negligence (where by definition there is no such awareness).
Colpa grave/colpa (gross negligence/negligence) Due to a failure to exercise reasonable care, the conduct unintentionally results in damage or injury to another.
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2. The recklessness issue (3)
Recklessness and gross negligence in English
criminal law
Recklessness in English criminal law is one of
the four possible classes of mental state. To
establish the defendants liability, the
prosecution service must be able to prove a mens
rea, other than a criminal conduct (actus reus).
Recklessness shows less culpability than
intention (the person does not desire the victim
to be hurt), but more culpability than criminal
negligence (the person was aware of the
potentially adverse consequences to his conduct,
but has gone ahead anyway, accepting to expose a
particular individual or unknown victim to the
risk).
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2. The recklessness issue (4)
Test for recklessness

• The test for the existance of the state of mind
  may be
• Subjective where the Court attempts to
  establish what the person was actually thinking
  at the time the damage was caused
• b) Objective where the Court imputes the state
  of mind on the basis that a reasonable person
  with the same general knowledge and abilities as
  the accused would have had those elements
• c) Hybrid the test is both subjective and
  objective.

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2. The recklessness issue (5)
Recklessnes and gross negligence in English
criminal law
Confusion has arisen between gross negligence
manslaughter and reckless manslaughter, since
sometimes these two states of mind seem to
overlap. In practice the distinction between
gross negligence and recklessness may be very
subtle. Recklessness requires the conscious
choice to take an unjustified risk Merry AF,
How does the law recognize and deal with medical
errors? R.Soc.Med. 2009 102265-271, while
gross negligencerequires the existance of a
duty of care (and) breach of that duty resulting
in death Gooderham P., R.Soc.Med. 2009
102358.
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2. The recklessness issue (6)
Case law
R v. Cunningham (1957) this case formed the
basis of the definition of recklessness. The
defendant was charged of assault, an offence
against the person which covers the reckless
administration of poison. In this case poison was
gas, which escaped when the accused was tearing a
gas meter off the wall, for stealing money. Gas
seeped through the dividing wall and partially
asphyxiated the victim, who was asleep. The
Court of Appeal held that recklessness could be
inferred from the agents maliciousness, and this
was not demonstrated. However, recklessness could
be upheld, since a reasonable person should have
been aware that breaking a gas meter could cause
harm, and should have foreseen its consequences.
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2. The recklessness issue (7)
Case law
R v. Caldwell (1982) according to this sentence,
the test for criminal damage is always objective
recklessness. The accused set a fire to a hotel
where he had been employed. He claimed
intoxication as a defence since he was drunk at
the time, he did not realize that there might be
people inside the hotel, whose lives might be in
danger. The House of Lords held that although the
accused could claim not to have forseen the risk,
recklessness could include cases where a
reasonably (i.e. not drunk) person would have
seen that the risk was obvious. Recklessness in
the context of criminal damage does not require
subjective appreciation of the risk of causing
damage, but is also satisfied by a failure to
consider an obvious risk.
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2. The recklessness issue (8)
Case law
R v. Reid (1992) slightly modified the previous
definition of recklessness, including an escape
clause from the charge of failing to consider an
obvious risk. The accused was convicted of
causing death for dangerous driving. He tried to
overtake another car on its nearside but there
was a temporary construction protruding into the
road in the nearside lane. The car struck the
construction at high speed and the passenger was
killed. The defence argued that there were good
reasons why a reasonable person might overlook an
obvious risk. The House of Lords held that the R
v. Caldwell definition of recklessness should
still stand, but that it may be a defence
claiming that an obvious risk was overlooked
because of a distraction.
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2. The recklessness issue (9)
Case law
R v. G. and Another (2003) the House of Lord
abolished the objective recklessness test
previously established under R.v. Caldwell,
bringing back a subjective standard. Two boys,
aged 11 and 12 years, entered the back yard of a
shop, lit some newspapers, then left, with the
papers still burning. The newspapers set fire to
the shop, causing 1m damage. The kids argued
they expected the fire to burn itself out and
said they did not consider the risk of the fires
spreading. The House of Lords held that a
person is criminally culpable when it is proved
that he has subjectively appreciated the risk to
health or property of another. Defendants can be
judged on the basis of their age, experience and
understanding, rather than on a standard of an
hypotethical reasonable person. ?
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2. The recklessness issue (10)
Case law
Booth v. Crown Prosecution Service (2006) the
appellant had been drinking and had smoked
cannabis. He ran across the road while a car was
approaching. He thought he could have make it
across the road if he ran, but he was hit by the
vehicle, which couldnt manage to avoid him. He
was convicted for criminal damage, for having
recklessly damaged the car. He argued the
magistrates had erroneously applied an objective
recklessness test. The Court dismissed the
appeal, arguing that he was aware of the risks
associated with running into the road, and
inherent in that risk of a collision was not only
the risk of personal injury but the risk of
damage to property.
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2. The recklessness issue (11)
The Court of Turin cites part of an important
recent pronounce of the Italian Supreme Court
regarding recklessness (p. 321).

• Precisely in the light of this pronounce, the
  recklessness of the CEO is to my opinion hard
  to prove.

Italian Supreme Court, sent. n. 10411 (2011) held
that

• The acceptance of the risks is not a sufficient
  evidence of recklessnes
• The recklessness, if any, needs to be validate
  by the acceptance of a highly likely risk

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2. The recklessness issue (12)

• Therefore, the test needs to be based on the
  intention. In gross negligence the certainty of
  the harmful event would have prevented the person
  from the behave. In recklessness, even the
  certainty of the harmful event would have not
  prevented from the conduct the person is aware,
  but goes ahead anyway.

• This very last element - the fact that the CEO
  would have gone ahead, even with the virtual
  certainty of the harmful event - is not well
  analysed by the Court of Turin.

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The recklessness issue (13)

• On the contrary, a series of events shows that
  the CEO was erroneously confident that no
  accidents would occur before the Turin plants
  shut down (already planned)
• Theres the concrete possibility that the Court
  of Appeal will revise the recklessness in favor
  of an aware gross negligence
• Moreover, excluding the recklessness does not
  necessary imply a less severe punishment of
  crimes due to lack of security at workplace.

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The recklessness issue (14)

• In fact
• There is a slight difference between the
  punishments for reckless manslaughter and gross
  negligence manslaughter (about 16 years
  imprisonment and 13 years imprisonment, in the
  Thyssenkrupp case)
• Insurances do not cover damage, in case of
  intention and recklessness
• Law Decree n. 231/2001 can not be applied if all
  the defendants were condemned for a reckless
  crime, due to a breach of security rules. The
  Decree can be applied in case of gross negligence
  manslaughter.

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Thank you for your attention