Scottish appeal shows how to match health and safety fines with crimes
Howard Fidderman looks at a Scottish appeal case that should bring home to employers what an adequate fine really looks like.
On this page:
The "agreed narratives"
Fixing the fines
LS Access's limited plea
Foreseeable risk, practical steps
Border Rail's limited plea
Aggravation and mitigation
Financial means
Border Rail fine was reasonable
Box: "Informal associations".
In late January in the space of two days, Scotland's equivalent of the Court of Appeal in England and Wales handed down its first judgments concerning appeals as to whether fines for HSW Act offences involving deaths were too harsh or too lenient. We reviewed the first; in this second judgment, the appeal court in LH Access Technology and Border Rail & Plant1 holds that the fines imposed on both companies were appropriate, even though they amounted to several times their average annual profits and, as percentages of annual turnover, were so far above the maximum recommended by the English Sentencing Advisory Panel (SAP) that they were at the top end of what the panel would impose for manslaughter.
The fatal incident occurred in the early hours of 21 March 2006 at the main railway station in Edinburgh. A mobile work access platform that was being used on a railway construction site had broken down and the owner and supplier of the machine, LH Access Technology, had sent a fitter to repair it on-site before moving it to the company's premises. But the fitter, Steven Barclay, was unable to repair the drive control and, together with Neil Martin, a fitter/operator employed by Border Rail & Plant, he started to move the machine to a low loader on a street outside Waverley Station. Because the control panel was not working, the men had to operate the override valves on each side of the machine manually. The valves were located between the front and the back wheels and the men stood on either side of the machine between the wheels to do this. They could not see each other and had to shout over the engine noise in order to be heard. In the road outside the station, the rear wheel ran over the bottom half of Martin, killing him. It was not known how he came to be run over.
Following an investigation, the HSE charged each company with an offence under the HSW Act and, on 22 May 2008 at Edinburgh Sheriff Court:
- LH Access pleaded guilty to a breach of s.3(1), in that it had exposed non-employees to risks to their safety from its undertaking; and
- Border Rail pleaded guilty under s.2(1), in that it had failed to ensure the safety of an employee.
The "agreed narratives"
In separate "agreed narratives", LH Access and Border Rail accepted that they had failed to provide a safe system of work. LH Access based its plea on failures to provide banksmen at the front and at each side of the machine and a means of communication; Border Rail accepted that its foreman, Steven Payne, should have stopped the operation as soon as he became aware of it. It also claimed that it was the less culpable of the two companies because it could not have anticipated that the machine would be moved off site rather than repaired in situ, or that it would be moved in the way it was. But Sheriff Neil Morrison rejected this argument and added that Border Rail could not rely on an expectation that LH Access's fitter would know what he was doing or the fact that LH Access's manuals did not mention using the valves to move the machine in such a way. Regardless of the accuracy of these claims, said the sheriff, Border Rail could not "shirk" its responsibility for its employee's safety "or be less culpable where the operation was seen by its foreman, was clearly and obviously unsafe, but was not stopped".
The sheriff noted:
- the system of work employed to move the machine was unsafe and was not adequately planned;
- there was no adequate assessment of risk;
- the method chosen was unsafe and placed Martin at an unacceptable risk of serious injury because he had to walk between the moving wheels;
- there was no direct line of sight between the two men;
- there was limited means of communication between the two men other than shouting over the noise of the machine;
- there were no banksmen to the front and each side of the machine; and
- there should have been an adequate means of communication
Fixing the fines
Sentencing the companies on 23 May 2008, Sheriff Morrison identified similar mitigating and aggravating factors for each company:
- what was done fell well below what was reasonably practicable;
- there was an unnecessary loss of life that was not mere chance;
- there was no evidence of profiting financially from a failure to take health and safety steps;
- this was not a case of a succession of safety failures or unheeded warnings;
- there were no previous convictions and each company otherwise had a good safety record; and
- there were prompt admissions of responsibility resulting in pleas that obviated the need for a trial.
LH Access made a loss of £29,000 in 2007 on a turnover of £3.7 million. In the same year, Border Rail enjoyed a net profit of £129,000 on a turnover of £3.7 million. The sheriff also remarked: "There is, of course, no guidance as to the relevance of turnover to the level of fine. What can be said is that a company's accounts are relevant, for example, to assessing that company's ability to pay a fine, the value of its business, its success and its standing." He fined each company £240,000, which represented a discount of 20% on a fine of £300,000 to reflect their early guilty pleas.
Both companies appealed against an excessive level of fine on three grounds:
- the bases upon which their pleas were tendered and accepted;
- the lack of aggravating factors and the presence of mitigating factors; and
- their financial means.
LH Access's limited plea
On the first ground, LH Access argued there was no practical alternative to moving the machine off-site in order to repair it and that the relevant failures in its guilty plea concerned the absence of banksmen and communication, ie the failures were confined to the identification of, and the response to, the risk posed by the lack of a direct line of sight between the driver and the person periodically correcting the steering. And although it had failed to identify the risk encompassed by the foreseeability that Martin might walk between the moving wheels, the system of work adopted did not require him to so walk.
There was, LH Access added, evidence that the platform had moved a considerable distance along a difficult route, without mishap, which demonstrated it was possible to operate the system of work safely. The sheriff, it argued, "may not have fully understood that it was not an inevitable consequence of the system of work that Mr Martin had to stand between the moving wheels. As a result, the sheriff may have taken a more serious view of the case than was justifiable." The company's plea, it insisted, had been "tendered and accepted on the basis that no identifiable causal connection had been established between the breach of the statutory provisions and the fatal accident. On the evidence, it was simply not known why Mr Martin had been in the position he was in when he was run over."
Foreseeable risk, practical steps
Giving the judgment of the High Court of Justiciary's Appeal Court on 29 January 2009, Lady Paton said it was reasonably foreseeable that quick and effective communication between the two operators might be required in many situations, not just those involving the operating of the steering controls while the wheels were moving. For example, an operator might find that the moving platform was trapping him against a wall. The duties of the banksmen, she said, would have included keeping lookout and maintaining a clear exclusion zone around the moving platform, so that no part of a human body could come within the path of the moving wheels.
Although the system of work did not require the person to operate the steering controls while the wheels were moving, it was reasonably foreseeable that this person might be tempted to take a short-cut by adjusting the controls while the wheels were still moving, "rather than going through the cumbersome and time-consuming procedure of stopping the machine altogether, adjusting the steering controls, and starting the platform on its journey again".
Given the many obvious ways in which risk of injury could arise in the course of the manoeuvre, Lady Paton emphasised that "the provision of banksmen was fundamental to the safety of the manoeuvre." This would have resulted in a clear exclusion zone around the machine, which would have prevented Martin from being run over. The failure to provide banksmen was thus "a grave omission, no matter what the precise sequence of events leading to the accident". The gravity of the offence was not diminished "to any extent because the plea was accepted on the basis that the precise sequence of events leading to the fatality could not be established".
And, looking at the obvious risks of injury, Lady Paton took the view that "it was eminently reasonably practicable to provide banksmen"; the failure to do this "resulted in a breach [of] duty which fell far below the appropriate standard". The "sheriff's assessment of the gravity of the breach, and the dangerousness of the position in which Mr Martin was placed as a result, cannot be criticised," she concluded.
Border Rail's limited plea
Border Rail argued that it was not aware that the platform was capable of being moved without first being repaired on site, and the decision to remove the unrepaired platform from the station was taken by LH Access without reference to, and without the knowledge of, any employee of Border Rail. What occurred was wholly unforeseen and unanticipated by Border Rail, and thus criminal liability arose not at the stage of discussing and deciding upon a system of work, but when the system had already been devised and was in the process of being implemented by LH Access's foreman: Border Rail's guilt, therefore, must be at the lower end of the scale.
Border Rail explained that it had based its plea on the breach of duty occurring at the point when its supervising foreman saw the platform being manoeuvred, but did not stop it. While the system of work he saw was "clearly unsafe", Border Rail tried to limit this failure by pointing out that a substantial part of the platform's journey had been successfully negotiated and that it was understandable that its foreman "formed the impression that the manoeuvre was under the control of someone with appropriate knowledge and experience [LH Access's fitter], and so refrained from intervening".
Lady Paton, however, said that the foreman noticed the way the manoeuvre was being carried out and "immediately appreciated that the method of work selected was unusual, especially as he had understood that the mobile platform would have to be repaired in situ before being removed from the site". Border Rail accepted that Payne should have brought a halt to the operation because it was unsafe, but he neither stopped the operation nor checked for the presence of banksmen. The failure to put in place necessary safety precautions, such as the provision of banksmen, was a "grave breach of duty" and the presence of an employee from LH Access did not absolve Border Rail of its duty.
Aggravation and mitigation
On the second ground of the appeal, both companies contended that while death was the only aggravating factor, there were many mitigating factors (see above). LH Access also argued that "the accepted absence of an identifiable causal connection diminished that aspect of the seriousness of the case."
But Lady Paton said that a "major aggravating factor" in respect of LH Access's failure was that an employee had "adopted an unusual and inherently dangerous procedure not envisaged or authorised in the operator's manual, resulting in the exposure of Mr Martin to the obvious risks". Thus, even allowing for "the more positive features" such as those outlined in mitigation and also its "responsible approach" after the accident (including full cooperation with the authorities, and the introduction of improvements in health and safety procedures), the sheriff had not "erred to any extent in his assessment" of the aggravating and mitigating features.
A "further major aggravating factor" for Border Rail was the "direct responsibility" that its supervising foreman had for the dead man: "The failure to intervene and check the safety precautions of a manoeuvre which was unexpected and unauthorised by the operator's manual was... a highly significant failure." Again, even allowing for the mitigating factors above, the fact that Border Rail was not involved at the early stages of setting up the system of work and its responsible attitude following the accident, the sheriff had not erred in his assessment.
Financial means
On the third appeal ground, LH Access pointed out that its fine was approximately five times greater than its average annual profit figure - which was, proportionally, far in excess of other sentences imposed for a fatality, and greater than its net current assets (or net worth) of £164,000. If enforced, it feared that the fine might render it unable to continue trading.
The company also referred to the SAP's draft proposals on sentencing for HSW Act offences that result in a death, which recommend calculating a fine as a percentage of average annual turnover. LH Access's average annual turnover during the three years 2005 to 2007 was £2.72 million. The "best case" fine would be 2.5% of that average annual turnover, ie £68,000; the "worst case" would amount to 7.5% of it, ie £204,000. Thus the fine of £300,000 clearly exceeded the recommended levels. (The company was in fact wrong in describing 2.5% as the "best case"; the SAP recommended 2.5% as the starting point, with aggravating and mitigating factors fixing the fine usually within a band of between 1% and 7.5%. Nor did Lady Paton say anything about this error.)
Lady Paton concluded that on the basis of the financial information available, the sheriff was fully entitled to fine LH Access £240,000: "Had the group accounts and figures been explored, the level of fine might well have been greater" (see box). She added that the SAP's draft recommendations were "indeed recommendations and not in any sense prescriptive". Nevertheless, and taking account of the SAP's recommendations, the fine still did not fall "outwith the range of reasonable levels of fine available to [the sheriff]".
Nor did she think the circumstances equated to those in cases such as Howe2. In those cases, she said, the risk of injury was much less obvious and, in any event, Scott Baker J remarked in Howe: "The circumstances of individual cases will, of course, vary almost infinitely... it is impossible to lay down any tariff... Each case must be dealt with according to its own particular circumstances."
Border Rail fine was reasonable
Border Rail made net profits of £200,624 and £59,631 in 2005 and 2007 (which was a different figure to that quoted by the sheriff), albeit with a net loss of £47,390 in 2006. Its average turnover was £2.6 million for the three years; the application of a 2.5% fine would have resulted in a fine of £65,000, with 7.5% working out at £195,000. The sheriff, however, had imposed a fine of almost 9% of average turnover, which was approaching the SAP's recommendation of a 10% fine in the most serious type of breach resulting in corporate manslaughter. Further, the level of the fine "was such that it was thought unlikely that Border Rail could trade out of its financial difficulty".
But Lady Paton said that Border Rail's projected profit and turnover in 2008 were unlikely to be different from those in 2007. Given its three previous years' turnover and profit, the fine was not beyond what could be deemed a "reasonable" level. This would have remained the case, even had the SAP's draft guidance been in operation.
1 LH Access Technology Ltd and Border Rail & Plant Ltd v HM Advocate [2008] (external website) HCJAC11.
2 F Howe & Son (Engineers) Ltd [1999] 2 Cr App R (S) 37.
Box: "Informal associations"
In sentencing LH Access and Border Rail, the sheriff did not take account of the income of other companies that were connected to the offenders. In her judgment, Lady Paton noted the connections, but did not criticise the sheriff for his approach:
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