Dr Austin Stoton

Year of Call: 2007  


Overview


Austin is a leading health & safety law and enforcement practitioner.

He has significant experience of regulatory and business crime, specifically with regards to corporations being prosecuted by the Health & Safety Executive and the Environment Agency.

He has considerable experience of both prosecuting and representing corporations, directors and sole traders facing regulatory investigations and enforcement action, particularly health & safety, environmental and prosecutions under the fire safety order. Austin has appeared in claims for judicial review of both the HSE and Environment Agency.

He has appeared for interested parties, corporations and individuals, in many inquest and jury inquests arising from work related deaths.

Prior to becoming a lawyer, Austin worked as a Chartered Process Engineer in the Pharmaceutical, Healthcare and Oil and Gas industries. He led engineering project teams from concept through to design delivery and consequently has technical engineering knowledge that few, if any, other barristers possess. This has a number of advantages for his clients:

  • Austin can get up to speed on technical issues very quickly;
  • He has a thorough understanding of complex issues;
  • He communicates effectively with technical people;
  • He is adept at handling experts;

He has the necessary understanding and insight to undermine opposing experts on paper and in court.

The Fire Safety Order:

Austin has been instructed by local authorities and private companies to advise on and represent them for prosecutions taken under the Fire Safety Order, including: fires in local authority accommodation, private zoo’s, street markets and retail outlets. Austin has a detailed knowledge of gas supply and delivery and fire protection engineering having led design teams incorporating fire protection design packages. He is able to utilise this knowledge in cases where technical design issues and faults are in issue.

Recent Cases

  • HSE v Primetake Ltd: The prosecution of an ammunition manufacturer for failing to put in place sufficient control measures during their manufacturing processes which were causative of  serious burns suffered by a worker during the production of tracer rounds/ammunition
  • HSE v Martin Baker Aircraft Limited
  • HSE v Eiberger Verfahrenstechnik GmbH
  • HSE v 777 Construction Ltd (The Strata Building case, fatality during demolition works)
  • HSE v Tata Steel UK Ltd (Molten steel explosion in a steel foundry)
  • HSE v Queenswood School Ltd (catastrophic failure of a school swing causing a 12 year old to become paraplegic)
  • HSE v Tata Steel UK (fugitive emissions of a carcinogenic, mutagenic, toxic, flammable gas into a process area)
  • Keene University Inquest (single fatality complex factual background)
  • A18 Inquest (5 fatalities)
  • Austin Stoton recently  obtained the first voluntary bill of indictment preferred for the Environment Agency

Health & Safety


Austin Stoton is instructed for both for the prosecution and the defence, in a wide range of health and safety cases. He has particular experience in cases involving the oil and gas industry, the healthcare industry, schools, nursing homes, and construction industry fatalities.

By reason of his engineering background he is often instructed when cases have a high level of engineering or technical content or are concerned with Oil & Gas, Healthcare or industrial process facilities.

He has advised the Office of Rail Regulation (ORR v Network Rail) on breaches arising from Network Rail’s Capital infrastructure and renovation program and appeared in the Employment Tribunal to litigate those matters.

He has appeared in many construction and demolition based fatality cases including electrical failures, explosions, roofs failing, propping systems failing, reversing vehicles and equipment failures which have resulted in work place deaths.

He appeared in the “Tower Bridge case” (HSE v Temple Lifts Ltd) following the catastrophic failure of the North Tower lift at Tower Bridge).

Austin appeared in the Chromalloy UK Legionellae case. A case where a weapons parts manufacturer had left a water cooling system in operation with inadequate control measures in place.

He appeared in Tata Steel Ltd where a molten steel explosion left a worker in a coma for 3 months with life changing injuries.

Austin has been instructed by the HSE to review previous Gross Negligence Manslaughter cases convictions.

He has been instructed in carbon monoxide gas cases including those where fatalities resulted.

He was instructed in the “Buncefield Case” in the high profile prosecution by The Health and Safety Executive and The Environment Agency of Total UK Limited, and Others. The case turned on expert evidence Austin was instructed specifically to deal with aspects of the expert evidence in the case.

Austin is the current editor of the Health and Safety Lawyers Association Bulletin.

He has advised extensively pre and post charge on primary liability under ss 2, 3, & 6 Health and Safety at Work etc. Act 1974. Austin has advised directors and company’s pre and post charge in respect of personal responsibility for their company’s health and safety breaches under s.37 and senior managers investigated and charged with personal breaches of health and safety duties (s.7).

Austin has successfully taken appeals of improvement and prohibition notices arising in construction cases from the Employment Tribunal on appeal to the Administrative Court.

Whilst pupil to Richard Matthews QC Austin devilled in the leading House of Lords decision on prosecutions brought under part one and S 37 of the Health and Safety at Work Act R v Chargot (t/a Contract Services) and others [2008] UKHL 73.

Lead pollution in the water industry

Dr. Stoton was instructed to advise in a case concerning a manufacturer of cast fittings and valves used in the water industry. The company (S Ltd) manufactured fittings from LG2 gun metal, a metal that contains 4-6% lead by weight.

The Control of Lead at Work Regulations 2002 govern such operations, the regulations provide that there is an HSE appointed Dr. to ensure that workers are not exposed to lead beyond the occupational exposure limit (OEL) for lead.

Exposure to lead can lead to:

  • changes in the blood which might lead to anaemia;
  • effects on the nervous system;
  • effects on the kidney.

The advice given led to some subtle operational changes in foundry working practices.

Explosion in a steel foundry

Austin prosecuted Tata Steel UK Ltd. The defendant company was the de facto national supplier of steel. Tata Steel have operations on a global scale.

This Prosecution arose out of an explosion which took place at the Defendant Company’s premises in Rotherham on the 9th March 2012. The explosion resulted in life changing injuries for a member of staff and were caused as a direct result of the practice adopted by the defendant in dealing with molten metal spillages.

On the 9th March 2012 a spillage had taken place at an electric Arc Furnace operated by the defendant. This spillage was due to modifications that had been made to the process control system which controlled the movement and operation of the furnace. The furnace pitched to one side (as was designed) to empty its contents. However, once it had done so it was not possible to return the furnace to an upright position. The consequence of this was that the contents of the furnace poured into a car well beneath it. Had the modification to the control system been undertaken or overseen by an appropriately qualified engineer the spillage would have been able to be controlled with minimal operator involvement with the spillage. The whole purpose of the control system was to provide a safe way of controlling the ladle and molten steel; that functionality was lost when the defendant company ‘frigged’ the control system.

A ‘frig’ is an engineering term of art for the alteration of the control parameters of a control system. The use of the term by engineers connotes a change undertaken to a control system that is done outwith the set or design control parameters of a control system. Frigging a control system is an acceptable course to take when commissioning a control system or when testing a control system but only if all such changes are documented and recorded and robust measures put in place to ensure that when a system is delivered back into service it is safe to do so. This would normally involve the specification of the control parameters and ‘stress testing’ (testing the functionality of the system over a range of variables and ensuring that the system performs in a reproducible and predictable way) the system to ensure that the modifications made to the system are reproducible and safe. Nothing of the sort occurred in this case.

Antithetically had the defendant simply allowed the spillage to lie fallow and cordoned off the area there would have been no risk to the operators or workers. In pouring water on the spillage the defendants practice introduced risk.

As a result of the explosion an employee of Tata Steel Ltd, was covered in molten metal, he was badly burnt. Doctors placed him in a chemically induced coma for three weeks in an intensive care unit. He underwent reconstructive surgery to his eyes ears and forehead. Other employees and agency workers in the proximity of the furnace also suffered injuries.

There were no risk assessments that covered the cooling down of molten steel by direct contact with water or otherwise. There were no written or working instructions covering the use of water hoses at all. The workers ‘learnt on the job’.

HSE v EVT Eiberger Verfahrenstechnik GmbH – Austin Stoton prosecuted EVT Eiberger Verfahrenstechnik GmbH. The German defendant company was a supplier of cleaning and degreasing equipment to the aerospace industry. The equipment had failed resulting in the release of a carcinogenic mutagen at a manufacturing plant.  The case turned on the mechanical and software design requirements for process mechanical equipment. The focus of the case was on what amounts to a safety system at law and the requirement under the Pressure Systems Safety Regulations 2000 to have pressure relief and pressure limiting devices fitted to pressure bearing equipment.

HSE v Martin Baker Aircraft Company Limited – Austin Stoton prosecuted Martin Baker Aircraft Company Limited (MBAC). MBAC faced two counts, one contrary to S 2 of the Health and Safety at Work Act 1974 (HSWA) and one contrary to the Regulation 6 (1) of the Control of Substances Hazardous to Health Regulations 2002. The case was the first major prosecution of industry causing Extrinsic Allergic Alveolitis (EAA) since the Powertrain case in 2006.

The individual counts cover failings at MBAC’s 22 acre High Denham site at High Denham, Buckinghamshire. MBAC is one of the worlds leading manufacturer of aircraft ejection seats and related equipment. The company has produced in the order of 75,000 ejection seats since 1946.
Exposure of machinery operatives to metal working fluids during production resulting in the inhalation of the mist, caused EAA.

The investigation of the extent to which MBAC had assessed risk in their working practices and put in place appropriate control measures revealed that MBAC fell very far below the standards required to maintain the control of metal working fluids during their production processes.

The Control of Substances Hazardous to Health Regulations 2002 (COSHH) regulation 6 precludes an employer from carrying out work on hazardous materials unless they have performed a suitable and sufficient assessment of the risk to the employees and have considered the steps needed to meet the regulations. Due to the high level of risk involved in working with hazardous materials the regulations and the approved code of practice (ACOP) to the regulations are drafted in detailed and prescriptive terms. MBAC did not comply with the detailed statutory requirements under regulation 6 nor did the practices comply with those set out under the ACOP.

The company were sentenced to a £800,000 fine and ordered to pay the prosecution costs in full.

HSE v. Sembcorp Utilities (UK) Ltd, Central Industrial (Northern) Limited (CIS) and R & A Kay Inspecting Services Limited (RAK):  Sembcorp, a Singaporean utilities company is the main energy provider to the Wilton International Sites in the North East of England. CIS are a company specialising in the cleaning of process equipment. RAK are a firm of inspecting technicians and engineers approved by various notified bodies. A high pressure steam line failed at approximately 1000 Bar g causing  a large and complex boiler system to fracture. A projectile part of the equipment shot through a technician’s leg resulting in amputation. The case focussed on a failure to adequately specify, plan and execute engineering test and commissioning works. Seven workers were exposed to a risk of death or serious injury. Legal argument on the proper interpretation of major systems within the meaning of Pressure Systems Safety Regulations 2000 and the application of HSE Guidance GS4, safety requirements when pressure testing.

HSE v Primetake Ltd: The prosecution of an ammunition manufacturer for failing to put in place sufficient control measures during their manufacturing processes which were causative of  serious burns suffered by a worker during the production of tracer rounds/ ammunition.

The Fire Safety Order

Austin has been instructed by local authorities and private companies to advise on and represent them for prosecutions taken under the Fire Safety Order, including: fires in local authority accommodation, private zoo’s, street markets and retail outlets. Austin has a detailed knowledge of gas supply and delivery and fire protection engineering having led design teams incorporating fire protection design packages. He is able to utilise this knowledge in cases where technical design issues and faults are in issue.

 

 

Coroners Inquests


Austin Stoton has acted for a wide range of interested parties including private individuals and corporations in a wide range of inquests and jury inquests. The majority of the inquests which Austin appears in arise out of work related deaths.

Austin has appeared in the Coroner’s Court for schools and universities, construction and manufacturing companies, farmers, psychiatrists, doctors and other medical professionals, enforcement authorities, regulators and private individuals.

Austin represented a strategic motorway contractor in the Cockburn family inquest into the death of five members of a single family at the same time on the A18 in North East Lincolnshire.

Austin represented Consultant Psychiatrist Dr. P who was suggested to have had a professionally inappropriate relationship with a member of the then Saudi Arabian Prime Minister’s son.

Austin appeared in an inquest where a worker at a speciality (fine) chemicals plant died from asphyxiation following a toxic vapour leak.

Austin represented the family of a farmer and his wife who died following carbon monoxide poisoning in their farm house.

Austin represented Keele University following the death of one of their students where it was suggested prior to the fatality one student had been raped by another student.

Austin also represented a corporation which supplied heavy building materials to the construction industry in the M 25 inquest which concerned the death of a commercial driver on a slip way of the motorway that was under construction at the time of the fatality.

Inquest: touching the death of family C

Appeared for Balfour Beatty in an article 2 inquest arsing from the death of 5 members of a family on the A18 in north East Lincolnshire. The council was the Highways Authority for the stretch of the A18 which is the subject of the inquest and as such had a duty to maintain the highway under section 41 Highways Act (HA) 1980. Balfour Beatty were the strategic highways management company.

The Contracting Out (Highways Functions) Order 2009 granted local authorities such as NELC power to contract out one or more of their section 41 functions. NELC went to tender for the purpose of contracting out its section 41 functions and in March 2010, NELC appointed Balfour Beatty under the terms of a Services Agreement. The respective parties separately and differently interpreted their public duty obligations under the terms of a Services Agreement.

Somewhat antithetically the issues raised by virtue of the Article 2 requirement were largely influenced by points arising from public law and contract law.

Inquest: Keele University, Duty of care to students in education

Dr. Stoton appeared in an unusual inquest on behalf of Keele University. The deceased was registered on a course leading to a professional healthcare qualification. She, herself, had diagnosed mental healthcare problems. Her boyfriend was at university studying for a physical science degree. He too had diagnosed mental healthcare problems. She had alleged that he had raped her. Her academic progress was subject to stasis for a number of external influences. A number of months later she hung herself from her parents bathroom door. The family protested that she could have been further supported, inter alia, by external mental health agencies. This was a complicated case touching upon issues of the common law duty of care of many interested parties, requirements under education legislation and the Coroner’s powers of case management under the Coroner’s Rules.

Environmental


Austin acts for and advises corporate bodies, individuals and the Environmental Agency principally where charges are brought under the Environmental Permitting Regulations 2010 or the Environmental Protection Act 1990. He has also appeared in cases involving the export of waste were UK based corporations have duties and obligations under the Trans-frontier Shipment of Waste Regulations.

He has advised extensively pre and post charge on primary liability under s 38 Environmental Permitting Regulations 2010. Austin has advised directors and company’s pre and post charge in respect of personal responsibility for their company’s environmental breaches under Regulation 41 and senior managers investigated and charged with personal breaches of duty.

He has advised on cases on appeal to the Secretary of State.

He has advised on cases where breach of an environmental permit is alleged due to site wide failures in odour abatement. He has advised on “Best Available Techniques” (BAT), EU Best Available Techniques Reference documents (BREFS), EA H4 Management guidance, EA sector guidance notes; and information on other techniques employed in the sector such as industry guidance, and best practice.

Austin has appeared in many cases concerned with waste transfer stations, and waste transfer notes. Particularly where corporations are operating stations in excess of their registered exemption and have allegedly breached an environmental permit.

He dealt with one of the first cases where the Environment agency were persuaded to utilise their quasi civil powers of disposal under the Legislation and Regulatory Reform Act 2006, the defendant company thereby avoiding prosecution and possible conviction.

Austin has advised extensively on waste in both a domestic and European law.

Tribunals


Austin appears in the Employment Tribunal for appeals against statutory enforcement (prohibition and improvement) notices issued by the HSE and also on further appeal to the Administrative Court of the Queen’s Bench Division.

Austin also represents corporations charged with Trade Mark infringements.

Professional Discipline


Austin has a rounded experience of professional disciplinary work, in the General Dental Council, Genral Optical Council, General Chiropractic Council, General Social Care Council and the United Kingdom Council for Psychotherapy.

He has appeared in the entire gamut of professional disciplinary cases including cases centred upon: consent, indemnity, NHS fraud, clinical performance, sexual assault during treatment, predicate criminal conviction and breach of confidentiality cases.

Austin both presents cases for the regulatory body and defends health care professionals in equal measure.

Austin is instructed to represent health care professionals at inquests following deaths where there are performance based allegations and on occasions where a health care professional is called by a coroner to give evidence in a capacity other than that of an expert witness.

Recent cases have included:

A maxillo-facial surgeon who faced multiple performance related charges following operations on two patients.
An optometrist who faced disciplinary charges following an alleged misdiagnosis.
A psychoanalyst accused of having a sexual relationship with a patient.
A dentist who practised for 10 years without adequate indemnity in place.

Fraud


Austin has a wide range of experience of financial crime including cheat, fraud, offences under the VAT act, confiscation, cash seizure, forfeiture and other related financial matters.

Cases

  • Operation Red Carpet; R v D; Mr. Stoton prosecuted the first case to be brought to court under Regulation 20 (1) Money Laundering Regulations 2007; an offence of failing to maintain appropriate and risk-sensitive policies and procedures. This case centred on a central London bureau de change that was utilised to launder monies from a tax diversion fraud. The case touched upon terrorist sympathies in the management of the organisation.
  • Operation Gambrill: R v KL; Prosecution of an executive member of the commercial board of the Chartered Institute of Accountants for non payment of value added tax and income tax.
  • Operation Cocoabean: Austin was instructed pre charge to advise and subsequently as leading junior for the prosecution in a £45 M VAT cheat commissioned by corporations, bogus corporations, sole traders and bogus individuals. The case involved the defrauding of Great Ormond Street Hospital, the BBC, various companies concerned with the construction and renovation of the Olympic Park and the Bread Street renovation near St. Paul’s Cathedral amongst others. The case required the calling of evidence from foreign jurisdictions including China, Bulgaria, the U.S.A and Western Europe and the analysis of thousands of pages of banking and financial material.
  • Operation Vaulter: Appeared for the Crown in the largest MTIC ever prosecuted. Evidence called from all over the globe, in trial for just over a year in a series of linked trials. Fraudulent money in carousel in excess of £1 Bn. Personal benefit to principle defendant in excess of £100 M. Over 100 off shore bank accounts analysed. Hundreds of phones and computers and other devices analysed and deployed in evidence. Tracing of monies across jurisdictions and through different bank accounts. Other matters covered included extradition, European Arrest Warrants, Interpol Red Notices, Osborne warnings and expert evidence across the entire gamut of forensic evidence.
  • Greek Government v MT: Advice and representation to a Greek Lawyer following an application made to the UK government from the Hellenic State for an external order, a confiscation order abroad.
  • R v Y & Others: Long complicated prime bank fraud, of circa £ 40 M, and money laundering case including international arrest warrants, extradition of defendants, the admission of extra-jurisdictional evidence from Australia, Cyprus, Germany, Hong Kong, and the USA, international asset tracing. Led junior.
  • R v M & Others: Multiple counts of fraud of the Drug Manufacturer Eli Lilly and the Drug Supplier Unichem Limited. Appeared for an NHS employee employed in the pharmacy of a large London NHS Trust. The defendant was one of only a handful of employees who had access to everything necessary to affect the fraud. Successful submission of no case to answer. Junior alone.

Military Law


Austin has a long standing interest in military law. He has defended service personnel charged with the entire gamut of offences including a highly sensitive case of two serving soldiers who were charged with the attempted murder of a German national. Dr Stoton’s client was acquitted by judicial direction after detailed legal argument. Has further appeared in cases of violence, drugs, fraud and rape.

Crime


Has appeared in attempted murders, rape, S.18, firearms, and aggravated burglary cases as a junior alone.

Cases

  • R v NM & Ors: A multi handed case of rape sexual abuse of a 12 year old girl over a 3 / 4 year period. Dr Stoton appeared for the circa 17 year old relative of the complainant. This was a complicated case involving, evidence from consultant psychiatrists, consultant psychologists, an intermediary and child witnesses and the concomitant range of special measures, an extremely sick defendant. Live note was in place throughout proceedings. The trial lasted just short of two months. The judge described the case as the most serious he had seen in over 40 years of practice. D acquitted. Junior alone.
  • R v H: Blackmail of £ 1.75M from a convicted drugs importer. Acquitted by judicial direction following detailed and complicated legal argument. Junior alone.
  • R v JS: Multiple firearms counts. Appeared for the Crown in a successful prosecution of a man threatening violence with a loaded sidearm in a public place. Junior alone.

Memberships


  • Health & Safety Lawyers Association
  • Health & Safety Lawyers Committee
  • The Institution of Chemical Engineers
  • The Honourable Society of the Inner Temple

Qualifications


  • Doctor of Philosophy, PhD; Process Engineering
  • Bachelor of Engineering, Double first, B.Eng. Hons, Bio-Chemical Engineering, British Oxygen Award for highest marks in final year
  • Chartered Engineer, C. Eng
  • Chartered Scientist, C. Sci
  • Fellow of the Institute of Chemical Engineers, F.I.Chem.E
  • European Engineer, Eur. Ing
  • Major Scholar of the Honourable Society of the Inner Temple
  • Graduate Diploma in Law
  • Qualified advocacy trainer for Honourable Society of the Inner Temple
  • Examiner of applicants applying for Chartered Engineer status