Scottish High Court of Justiciary Decisons

T W SCOTT (PAINTING CONTRACTORS) LIMITED v. PROCURATOR FISCAL, ABERDEEN [2000] ScotHC 74 (7th July, 2000)

[1] The appellants went to trial in the Sheriff Court at Aberdeen on a summary complaint containing two charges. The charges were in the following terms:

[2] The sheriff having heard the evidence for the Crown, no evidence being led for the defence, convicted the appellants of both charges. When she came to sentence, the sheriff imposed a fine of £10,000 in relation to the first charge and a fine of £15,000 in relation to the second charge.

[3] This appeal is taken against the sentences imposed in relation to each charge on the ground that the amount selected in each case is excessive and in particular the overall fine is excessive in the circumstances. Counsel for the appellants founded upon four of the five grounds of appeal stated in the note of appeal. These were as follows:

"(a) The Sheriff, in selecting the sentence in charge 1 failed to take into

[4] It was submitted that in essence the circumstances giving rise to the charges comprised a single offence. The failure in respect of charge 1 was effectively the same failure in respect of charge 2. The accident had involved lightweight metal scaffolding which the appellants had hired. It had been blown down by a gust of wind. The appellants no longer used such scaffolding. Furthermore, the sheriff had failed to take full account of the mitigating circumstances. This was the first time that the appellants had been convicted of any offence in the fifty four years of business. They had had in place a system for assessment of risk but it was accepted that both the manner in which the document was made up and the instructions in it as issued to employees, were too general. The appellants employed a designated health and safety consultant and also carried out safety audits at intervals through a health and safety consultant. As a consequence of the present prosecution they had tightened their procedures. They had undertaken a review of the safety training given to their employees. They had increased the level of induction training for employees. Arrangements had been made for more employees to be sent on training courses. Senior chargehands had been instructed to make certain that those in their charge were fully aware of the risks at work in any particular undertaking and the precautions to be taken to obviate such risks. The use of lightweight aluminium scaffolding had been discontinued.

[5] We remind ourselves that part of the evidence consisted in a Joint Minute. This set out amongst other things that at about 3 p.m. on 26 October 1998 two pupils at Cults Academy named Byres and Morrice, aged 11 and 13 respectively at the time, were making their way from the main block to another block of the Academy. Morrice heard someone shout, then felt something push him to the ground. Both pupils had been hit by falling scaffolding. Bryce suffered severe concussion and amnesia and was detained in hospital for 5 days. He suffered a sore head and wrists and also bruising to his wrists and neck. He also had a black eye. Morrice had suffered two broken ribs, bruised kidneys and bruising to his chest and left leg. At the time of the incident it was a change of classes and there were a number of children going backwards and forwards at the locus of the incident.

[6] The sheriff tells us that in mitigation she had been informed that the appellants were incorporated in 1946, that they had no previous convictions and that they had learned a serious lesson as a result of the accident.

[7] She then goes on to say this:

[8] In relation to the grounds of appeal founded upon, the sheriff tells us this:

[9] Counsel for the appellants was critical of the sheriff's description of the "risk assessment" and method statement produced by the appellants as being meaningless. However it is not possible for this court to do other than note the criticism. This was a matter for the sheriff to determine in the light of the evidence before her. However, from what she states it would appear that the statement had been prepared without any knowledge of what equipment was being used on site and without any identification of the risks to pupils.

[10] Nor do we consider that the suggestion of counsel that there was effectively a single offence, to be well-founded in the circumstances of this case. We note that section 33(1) makes it an offence for a person "to fail to discharge a duty to which he is subject by virtue of sections 2 to 7" of the Health and Safety at Work Etc. Act 1974. The charges of which the appellants were convicted, involved separate breaches of the duties placed by the statute upon the appellants. In the case of the contravention of section 2(1) the charge specified failures distinct from the failures specified in the case of the contravention of section 3(1). Not surprisingly the sheriff took the view that in the case of the contravention of section 3(1) where actual injury followed, the penalty should be greater than in the case of the contravention of section 2(1). The statute provides for separate penalties for each contravention. The sheriff, who had the advantage of hearing the whole evidence, was in a better position than this court to weigh up the seriousness of each contravention in terms of the risk posed to those for whose protection the duties were imposed by the statute. She describes the accident as a serious one. The fact that the scaffold was blown down by a gust of wind without any immediate danger to any employee, did not mean that there was not a potential risk of injury to those employees who would be likely to work on it, in the absence of any preventative or protective measures to be followed by the appellants' employees. Looking to the material before the sheriff and noting that she had regard to the mitigating features urged on the appellants' behalf, we are unable to say that the fines imposed, whether viewed separately or in total, having regard to the maximum fine of £20,000 allowed by the statute in each case, are excessive. The appeal is accordingly refused.