APPEAL COURT, HIGH COURT OF JUSTICIARY
Appeal No: 579/98
OPINION OF THE COURT
delivered by LORD PROSSER
PROCURATOR FISCAL, Aberdeen
ABERDEEN CITY COUNCIL
Appellant: Menzies, Q.C., A.D.; Crown Agent
Respondents: Duguid; Aberdeen City Council Legal & Corporate Services
2 July 1999
On 4 April 1996, Paul Buchan and Neil McKay were playing football on a park behind industrial units at the Whytemyres Centre, Mastrick Industrial Estate, Aberdeenshire. A 14 year old boy, Kevin Watson, was watching them. The ball went onto the roof of the industrial units, and all three boys decided to go onto the roof to retrieve it. Neil McKay had been on the roof on a previous occasion. There were perspex skylights on the roof. When the boys got onto the roof, Neil McKay crawled across the first of these perspex sections, and the other two boys walked round it. Neil McKay crawled over a second perspex section. Paul Buchan jumped over it. Kevin Watson attempted to jump the second section, but failed to clear it, and fell backwards, falling through the skylight to the floor below. He sustained a head injury, from which he died at Aberdeen Royal Infirmary on 6 April 1996.
Following upon this tragic incident, Aberdeen City Council, the respondents in this appeal by stated case, were charged in the following terms:
"Between 22 February 1996 and 4 April 1996, both dates inclusive, at Whytemyres Centre, Whytemyres Avenue, Mastrick Industrial Estate, Aberdeen, you Aberdeen City Council being an employer in terms of the undernoted Act, did fail to conduct your undertaking in such a way as to ensure, so far as was reasonably practicable, that persons not in your employment who may be affected thereby, were not thereby exposed to risks to their health or safety in that you (i) failed to give any notice or warning that parts of the roof of said premises were constructed with fragile materials and that it was unsafe or dangerous for persons to walk on said parts of said roof, (ii) failed to take appropriate precautions such as place physical barriers such as fencing, upstands (at the edge of said roof) or use anti-intruder paint (on down pipes) and thereby prevent persons gaining access to said roof, (iii) failed to cut back trees situated adjacent to said premises, which trees were used by children to gain access to said roof, and as a result of said failures on 4 April 1996, Kevin Watson, aged 14 years, 58 Dulnain Road, Aberdeen, climbed onto the roof of said premises, lost his footing and fell through part of said roof onto the concrete floor of the warehouse situated below and he sustained a head injury from which he died at Aberdeen Royal Infirmary on 6 April 1996:
CONTRARY to the Health and Safety at Work Etc. Act 1974, Section 3(1) and Section 33(1)".
Trial on the complaint containing this charge took place in the Sheriff Court at Aberdeen on dates in October, November and December 1997, and at the conclusion of the trial the sheriff acquitted the accused. It is not disputed that in the event of any conviction, the words "or use anti-intruder paint (on down pipes)" should be deleted; and it is further clear that the words "(iii) failed to cut back trees situated adjacent to said premises, which trees were used by children to gain access to said roof" should also be deleted in the event of conviction of the remainder of the charge.
By virtue of the Local Government (Scotland) Act 1994, on 31 March 1996 Grampian Regional Council ceased to exist, and on 1 April 1996 the respondents, Aberdeen City Council came into existence. Over the period covered by the charge, Grampian Regional Council occupied the industrial units from 22 February to 31 March, one unit being occupied by their Water Services Department, and the other two by their Education Department as a distribution centre and warehouse. From 1 April 1996, the respondents, Aberdeen City Council, had five employees working in this warehouse and distribution centre; and while these two units were the subject of a dispute between Aberdeen City Council and two other Councils, it had been agreed that Aberdeen City Council would be the "lead authority", and would "remain responsible for the maintenance of the said units". It was into one of these units that Kevin Watson fell.
If Aberdeen City Council are to be regarded as having conducted an undertaking at the relevant industrial units only from the date when they came into existence, on 1 April 1996, then it is accepted by the Crown that having regard to the facts found by the sheriff, acquittal would be appropriate. The sheriff has found that warning signs were erected within three weeks of the accident, and that "cactus spikes" were erected by the summer of 1997; but he has also held that the signs could not have reasonably been erected in less than two weeks, and that the spikes could not reasonably have been erected in less than six weeks. Aberdeen City Council, having only come into existence on 1 April, could not have initiated action prior to that date, and therefore, on the basis of these findings, it would not have been "reasonably practicable" for them to have erected signs, or placed such physical barriers, by 4 April. While questions 5 and 6 in the stated case question the sheriff's entitlement to make these findings in fact, the advocate depute did not ask us to hold that the sheriff was not entitled to make them; and he accepted that standing these findings, even if an accident of this kind was foreseeable by Aberdeen City Council, and even if there was thus a prima facie case of failure on their part to take the desiderated precautions, the sheriff was justified in holding that it had not been reasonably practicable for them to do so, so that the statutory defence contained in section 40 of the 1974 Act had been made out, and acquittal would be appropriate.
However, the Crown submitted that the sheriff had erred in law in holding that the provisions of section 181 of the Local Government (Scotland) Act 1994 did not place a liability on Aberdeen City Council for the previous failures of Grampian Regional Council, and in holding that omissions occurring during the period 22 February 1996 to 31 March 1996 fell to be disregarded. It was submitted that upon a correct construction of that section of the 1994 Act, things done by Grampian Regional Council (including omissions and failures on their part) were to be treated as having been done by Aberdeen City Council; and that duties incumbent upon Grampian Regional Council were to be treated as having been incumbent upon Aberdeen City Council, during that period before Aberdeen City Council had in fact come into existence.
On the basis that this was the correct construction of section 181 of the 1974 Act, it was submitted that the sheriff had held, and held correctly, that an accident of this type had been foreseeable from 22 February or shortly thereafter, and that it was clear that it had been reasonably practicable thereafter at least to erect appropriate signs. Conviction would therefore be appropriate at least in relation to that failure. It was, however, further submitted that conviction would also be appropriate in relation to the failure to place physical barriers: while there was not a period of six weeks after 22 February, it was suggested that the duty imposed upon Grampian Regional Council by section 3(1) of the 1974 Act had been incumbent upon them prior to 22 February, and that the statutory defence afforded by section 40 should not be treated as established merely because it would not have been practicable to initiate and complete the placing of the barriers after 22 February. We are not persuaded that this submission is sound: the significance of 22 February is that on that date a man fell through one of the perspex skylights on the industrial units (fortunately without serious injury), and that a memorandum prepared thereafter drew Grampian Regional Council's attention to the fact that children might gain access to the roof. In finding that it was reasonably foreseeable that children would gain access to the roof, the sheriff founds expressly on the fact that the Council were on notice about the possibility of children getting onto the roof, and we see no proper foundation for proceeding upon the basis that this possibility was foreseeable by them prior to the accident of 22 February and the subsequent memorandum. The matter not being then foreseeable, it appears to us that upon the basis of the sheriff's findings it was not reasonably practicable for Grampian Regional Council to have placed physical barriers within the period referred to in the charge. The only alleged failure now in point is accordingly that set out at (i) of the charge - a failure to give any notice or warning "that parts of the roof of said premises were constructed with fragile materials" and that it was unsafe or dangerous for persons to walk "on said parts of said roof".
The sheriff has held that "all three boys knew that the skylights existed and that they were potentially dangerous". The stated case includes a question 4 as to the sheriff's entitlement to make this finding. However, the advocate depute did not ask us to answer this question in the negative, and the finding accordingly stands. Having regard to that finding, the sheriff says that if he was wrong on the question of the warning signs, and that they should have been in place by 4 April, he would not be prepared to convict on that part of the complaint which states that "as a result of said failures" Kevin Watson climbed on the roof, lost his footing and fell, sustaining the injury from which he died. The sheriff says that in his view it was clear from the evidence of the other two boys that all three of the boys on the roof were well aware of the dangers of the skylight. He adds that therefore, even if there had been warning signs, he was not satisfied that their presence would have prevented the accident. He subsequently adds that in his view it was the inevitable inference to be drawn from the evidence of the two boys that they were aware of the potential dangers of the skylights, and asks why, if they were not aware that it was dangerous, would they either crawl over it or walk round it. It does not appear to us that there would be any sound basis for overturning the sheriff's assessment of this matter, and as we understood the advocate depute, he was content that the conviction which he claimed was appropriate, upon a correct construction of section 181, should be limited by the exclusion of this whole passage relating to the alleged results of failure. In these circumstances, even if the respondents are to be treated as responsible for the acts and omissions of Grampian Regional Council from 22 February to 31 March, on the basis of the construction of section 181 which is contended for by the Crown, the appropriate conviction would be of a failure in terms of head (i) of the charge alone, with heads (ii) and (iii) and the whole passage dealing with alleged results being excluded.
We come therefore to section 181, and in particular to section 181(3), upon which the Crown rely. The terms of that subsection are as follows:
"(3) Subject to subsection (6) below, anything done or treated by virtue of any enactment as having been done by or to or in relation to an existing local authority in connection with the discharge of any of their functions shall, as from 1 April 1996, be treated as having been done by, to or in relation to the new authority by whom those functions become exercisable on and after that date by virtue of this Act; and any such thing shall as from that date have effect as if any reference therein to a specified existing local authority by whom those functions were exercisable before that date were a reference to the new authority by whom those functions become exercisable".
The advocate depute further relied upon subsection (4) of section 181, the relevant part of which is as follows:
"(4) Without prejudice to the generality of subsection (3) above, the things to which it refers include -
(a) any agreement, instrument, decision, designation, determination,
declaration or order made or treated as having been made by an existing local authority;
(b) any notice or direction given or treated as given by or to such an authority;
(c) any licence, certificate, permission, consent, approval, refusal, exemption,
dispensation or relaxation granted or treated as granted by or to such an authority;
(d) any application, request, proposal or objection made or treated as made by
or to such an authority;
(e) any fee paid to or by such an authority;
(f) any condition or requirement imposed or treated as imposed by or on such
(g) any proceedings instituted by or against any such authority; or
(h) any appeal allowed by or in favour of or against such an authority.
It was not suggested by either party that subsection (6) was of any assistance in the present case. It is however to be noted that subsections (1) and (2) make very wide provisions for the Secretary of State to make orders, and that in exercise of inter alia these powers, the Secretary of State made the Local Authorities (Property Transfer) (Scotland) Order 1995, S.I. 1995/2499, which provides for certain transfers of property from existing local authorities to various other councils and authorities. The definition of "property" in the Order includes any property whether heritable or moveable "together with any rights, liabilities and obligations related thereto". It is not clear to us whether the unit at which this accident occurred constitutes property which has been transferred from Grampian Regional Council to Aberdeen City Council in consequence of such provisions of the 1995 Order as relate to Grampian Regional Council; but in any event, it does not appear to us that any rights, liabilities or obligations arising from the provisions of section 3 or section 33 of the 1974 Act are properly to be regarded as rights, liabilities or obligations "related" to the heritable property. The Order does not appear to us to assist the Crown; and the issue appears essentially to turn upon the construction of section 181(3) and (4).
We do not find these provisions of the 1994 Act easy to construe. It is true that the expression "anything done" is very wide, and such limits as there are to the scope of either the noun "thing" or the verb "do" perhaps have little significance when one considers the range of matters treated by subsection (4) as "things". That being so, we can understand the submission advanced by the advocate depute, to the effect that things done by Grampian Regional Council must be seen as including their whole conduct of their undertaking during the relevant period, including such conduct as might turn out to involve a breach of the duty imposed upon them by section 3(1) of the 1974 Act; and that things done to Grampian Regional Council must be seen, having regard to subsection (4)(f), as including the imposition upon them of the requirement to fulfil the duty imposed by section 3(1) of the 1974 Act. Adopting that approach, Grampian Regional Council's conduct of their undertaking, including any aspect thereof which constituted a breach of duty under section 3(1) of the 1974 Act, must be "treated as having been done by" Aberdeen City Council; and the imposition of a duty by section 3(1) upon Grampian Regional Council must be treated as something done to Aberdeen City Council, the duty thus being incumbent upon them from the time when it was imposed upon Grampian Regional Council. Put shortly, section 3(1) of the 1974 Act was to be applied as if Aberdeen City Council had existed, and had been standing in the shoes of Grampian Regional Council, from 22 February onwards.
The advocate depute further submitted that the terminology of section 181 was not to be regarded as abnormal or unusual: it was closely similar to the terminology of section 215 of the Local Government (Scotland) Act 1973. Such sections achieved a total substitution of the old body by the new body within any given range of functions. Moreover, any statute must be so construed as to avoid absurdity, and
"the courts give a very wide meaning to the concept of 'absurdity', using it to include virtually any result which is unworkable or impracticable, inconvenient, anomalous or illogical, futile or pointless, artificial or productive of a disproportionate counter-mischief". (Bennion, Interpretation of Statutes, 2nd edition, page 679)
While there were contexts in which a distinction could be drawn between positive acts done and negative omissions, section 3(1) of the 1974 Act, imposing a duty as to the way in which an undertaking was to be conducted, when taken with the broad provisions of section 181(3) of the 1994 Act, as to things both done by and done to the existing local authority, was not a context in which that distinction could be applied, without absurd consequences, with some obligations and liabilities being transferred, and others not transferred, according to their classification as positive or negative. The position was comparable with that dealt with in Jolliffe & Others v. The Wallasey Local Board,  L.R. 9 C.P. 62. Section 181(3) was at least capable of a construction on these lines, and should be so construed.
Before the sheriff, and in his submissions to this court, counsel for Aberdeen City Council submitted that the words "anything done" had their natural meaning, referring to a positive act. And the substance of the charge was essentially one of omission and failure. If Parliament had intended the transfer of liability for failures or omissions as well as positive acts, then it could easily have found suitable language, such as "acts and omissions". Moreover, one was here concerned with a transfer of responsibility for criminal conduct: that being so, the section should be construed narrowly, and should not readily be given a meaning which created liability for criminal conduct in a person or body which had not in fact been party to that conduct. The sheriff accepted these submissions, acknowledging that this interpretation effectively created a "gap" between the former Regional Councils and the new Councils. He says in his note that on first consideration he found this surprising. However, "given the clear and unusual language of the section", he assumed that it was the intention of Parliament to transfer liability to the new Councils for positive acts only. It was to be noted that if the construction contended for by the Crown were to be adopted, the scope of section 181(3) would be so wide as to cover all manner of rights, liabilities and obligations, which was not only contrary to the natural meaning of the simple words used, but would also raise a question as to the need for specific orders, such as the Local Authorities (Property Transfer)(Scotland) Order 1995, which would either duplicate or perhaps contradict the provisions of section 181(3).
Notwithstanding the use of similar terminology previously, and in particular in the Local Government (Scotland) Act 1973, section 215, we find it difficult to see section 181(3) and (4) as a natural or normal way of expressing the relatively familiar and straightforward process of a universal transfer of rights, liabilities and obligations from one body to a successor body. Despite the naturally wide sense of the word "things", much that is set out at heads (a) to (h) of subsection (4) lies uneasily with that word, and with the word "done", which is not given any special definition. Like the sheriff, we are uneasy with the suggestion that Parliament intended a transfer of responsibility for "positive" acts, but no transfer of "negative" omissions, and we are disposed to see that distinction, if possible at all, as an absurd one in a situation such as this reorganisation of local Government. Nonetheless, we find the absence from subsections (3) and (4) of any of the usual legal terminology of rights, liabilities and obligations not merely surprising, but suggestive. It may well be that the language adopted in these subsections would in many situations have the effect of transferring rights, liabilities and obligations, and that it would do so without any need for a positive/negative distinction. But the combination of the apparently simple language employed in subsection (3) with the quite lengthy "listing" type of draughtsmanship adopted in subsection (4) suggests to us both that specific types of liability not set out in subsection (4), and not naturally falling within the language of subsection (3), may well fall outside the scope of these subsections, and perhaps more fundamentally, that in the formulation of these subsections, the mind of Parliament has not been directly fixed upon a universal transfer of rights, obligations and liabilities of all kinds. Neither the "anything done" language of subsection (3), nor the listing (in some instances extraordinarily specific), contained in subsection (4), nor the combination of the two, indicates to us an intention to transfer rights, liabilities and obligations generally and as a matter of principle, even in the field of civil law. And we see no sign of any intention to deal with criminal responsibility. One would expect civil rights, obligations and liabilities to be transferred in some way, rather than be terminated by the extinction of the former Regional Councils. But we are not persuaded that the very special case of criminal liability involves a similar expectation that some new body will stand in the shoes of the old body, inheriting its guilt.
The arguments advanced on behalf of the Crown seem to us to be at their strongest when one considers the reference in subsection (3) to anything done "to" an existing local authority along with the terms of subsection (4)(f), since the imposition of a statutory duty can be seen as a "requirement imposed" on an authority, and if it is a "thing", it can perhaps be made to meet the terminology of anything "done to" the authority in question. So far as civil obligations are concerned, it may be that such language would suffice to produce the type of substitution envisaged by subsection (3). But when one moves from the ordinary concepts of civil obligation, perhaps imposed by statute, to the field of crime, it appears to us that the words "requirement imposed" are quite inappropriate and inadequate as an expression of either the sources or the nature of criminal responsibility. We are conscious that we have found it impossible to understand fully the reasons for adopting the approach to draughtsmanship which is found in these two subsections. But we cannot find in them any sufficient indication of either a direct intention to impose criminal responsibility on new authorities for criminal conduct on the part of their predecessors, or a consciousness that such a responsibility might result from the provisions actually expressed. In the absence of such a direct intention, or of an apparent awareness that such might be the consequences of the provisions, it does not appear to us that these subsections afford any sufficient basis for treating the conduct of Grampian Regional Council between 22 February and 31 March as having been the conduct of Aberdeen City Council for the purposes of section 3(1), and 33(1), of the 1974 Act.
It is unfortunate that what became a central issue at appeal - the meaning and effect of subsection (4) - does not appear to have been argued before the sheriff. But that matter does not affect the nature of the issues raised by the stated case. We have already indicated that questions 4, 5 and 6, concerning the sheriff's entitlement to make certain findings, were not matters of dispute at the appeal: he was entitled to make these findings. Moreover, questions 2 and 3, relating to the period from 1 to 4 April 1996, are no longer in issue, standing the advocate depute's acceptance that if his argument in relation to section 181 failed, acquittal would be appropriate. The first question deals with section 181: "Did I err in law in holding that the provisions of section 181 of the Local Government (Scotland) Act 1994 did not place a liability on Aberdeen City Council for the previous failures of Grampian Regional Council and that the omission occurring during the period 22 February 1996 to 31 March 1996 fell to be disregarded?". We answer that question in the negative, and the Crown's appeal fails.