Scottish High Court of Justiciary Decisons

Boland Construction Ltd v. Her Majesty's Advocate [2003] ScotHC 1 (22 January 2003)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Kirkwood Lord Wheatley	Appeal Nos: C991/00 XC103/02 OPINION OF THE COURT delivered by THE LORD JUSTICE CLERK in APPEAL AGAINST CONVICTION and SENTENCE by BOLAND CONSTRUCTION (SCOTLAND) LTD. Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Appellant: Bell QC, Collins; Simpson & Marwick

Respondent: Anthony QC, AD; Crown Agent

 

9 January 2003

1. On 18 December 2000 at Edinburgh Sheriff Court the appellant was convicted on indictment on the following charge:

" on 10 August 1999 at the site occupied by you at Muirhouse Shopping Centre, Pennywell Road, Edinburgh, you Boland Construction (Scotland) Limited being an employer within the meaning of the Health and Safety at Work Etc Act 1974 did fail to conduct your undertaking, namely construction work on the said site 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 exposed to risks to their health and safety and in particular did fail to conduct your undertaking in such a way as to ensure so far as was reasonably practicable, that persons, including Danielle Welsh, then aged 5 years and William Welsh, then aged 6 years, both now deceased and formerly residing with their mother Sarah Welsh at 9/5 Piershill Square West, Edinburgh, were not exposed to risks to their health and safety in connection with the movement of plant and construction vehicles undertaking work in connection with your site activities and, more particularly, you did fail to provide a banksman or traffic supervisor to offer guidance or assistance to lorry drivers to enable them to enter, leave or manoeuvre safely at the said site and as a consequence of your said failure the said Danielle Welsh and William Welsh were knocked down and run over by a lorry then being driven by John Calder Scott, an employee of R D Anderson Limited, 64 Longstone Road, Edinburgh and the said children were so seriously injured that they died later that day;

CONTRARY to the Health and Safety at Work Etc Act 1974 Sections 3(1) and 33(1)(a)."

The appellant was fined £75,000.

2. The appellant appeals against conviction and sentence on 33 grounds. These include the contention that the citation of the sole director of the appellant as a witness for the Crown deprived the appellant of a fair trial and constituted a breach of the appellant's human rights. On the view that we have taken of this case, this and other related questions do not arise. We confine ourselves to those grounds of appeal which, in various ways, raise the basic contention that the evidence in this case did not warrant a conviction. In support of that contention counsel for the appellant submitted that the sheriff erred in failing to uphold a submission of no case to answer and that, in any event, on the evidence that was before the jury, the appellant ought not to have been convicted. Counsel for the appellant put forward three reasons for that conclusion, namely that the accident did not happen at the locus libelled, that it was unrelated to the appellant's management of the site and that the appellant did not fail to provide a banksman since the driver chose not to use the services of the banksman nominated by the appellant.
3. Muirhouse Shopping Centre, Edinburgh, has an extensive area to the rear that is used mainly for the circulation of vehicles and the parking of customers' cars. This area, which we shall call the carpark area, is connected to Pennywell Gardens, the nearest main thoroughfare, by an access road that is a public road. Along this stretch of access road, in the direction of Pennywell Gardens, there is a block of flats on the left, at a higher level, in front of which a grassy bank runs down to the road. There is car parking on that part of the road that is beside the grassy bank. To the right of the road there is a large building, referred to at the trial as the "Moving On" building, in which there is a training centre and a dentist's surgery. This stretch of road gives access to the rear of the shopping centre for delivery vehicles, including articulated lorries, and customers' cars. It also gives pedestrian access to the shopping centre, to the Moving On building and to the flats.
4. At the time of the accident an extension to the shopping centre was being constructed within the carpark area. The appellant was the contractor for this work. The appellant's site was fenced off from the rest of the area with Heras fencing. The work at that stage involved excavation and the removal of spoil in lorries owned by R.D. Anderson Limited, the appellant's sub-contractor. The shopping centre remained open throughout the construction work.
5. Pedestrians were free to walk along the access road and within the carpark area, so far as it was not fenced off, at the same time as heavy lorry traffic travelled to and from the rear of the shopping centre and the construction site. There were no pavements on the access road or, it would appear, within the carpark area.
6. We express our considerable surprise that such a state of affairs was allowed to happen. In his report, the sheriff says that he thought that the layout was disgraceful. The photographs of the area taken immediately after the accident demonstrate the obvious dangers that arose from the lack of any segregation of vehicular and pedestrian traffic. The responsibility for that appears to lie with the local authority.
7. On the date libelled a 20-ton tipper lorry owned by the sub-contractors and driven by John Calder Scott arrived at the appellant's site to load spoil. The lorry did not enter the site. Instead, the driver was directed to park his vehicle alongside the Heras fencing near the entrance to the site, but outside of it. The JCB driver on the site then loaded the spoil by tipping it over the fence onto the lorry. Counsel for the appellant accepted that this should not have happened; but that was not the subject of a charge.
8. The children referred to in the charge were in the care of their grandmother, Mrs. Catherine Welsh, who lived in the block of flats to which we have referred. The children were playing outside. Danielle told Mrs Welsh that she had found a 50p piece and that she was going to the shops. Mrs. Welsh called her back, but by then Danielle and William had run off in the direction of the shopping centre. They crossed the grassy bank onto the access road and were run down by the lorry and fatally injured.
9. There was undisputed evidence that the loading of the lorry had been completed and that the driver had then drawn diagonally forward across the carpark area almost to the front of the Moving On building, reversed towards the entrance to the appellant's site and then set off along the access road. A short distance further on, as the lorry passed between the Moving On building and the grassy bank, the children ran in front of it. The evidence suggested that they "froze" as the lorry approached. The lorry was being driven at no more than five miles per hour.
10. It is apparent from the terms of the charge that the Crown based its case upon the precise allegations (a) that the offence was committed "at the site occupied by [the appellant]"; (b) that the appellant failed to conduct its undertaking "namely construction work on the said site" as required by the Health and Safety at Work etc. Act 1974 (the 1974 Act); (c) that its failure consisted in a failure to provide a banksman "to offer guidance or assistance to lorry drivers to enable them to enter, leave or manoeuvre safely at the said site," and (d) that as a consequence of the alleged failure the children were killed.
11. In our opinion, this appeal succeeds because the accident did not happen at the locus libelled in the charge and because it did not happen as a consequence of a failure by the appellant to conduct its undertaking in the specific respects libelled.
12. The advocate depute argued that, although the lorry had not entered the site, the facts showed that the appellant was using the carpark area for part of its operations. That area was therefore de facto part of "the site occupied by" the appellant. We do not agree. The court might have held that some latitude was implied in the specification of the locus if the accident had happened while the lorry was manoeuvring near the site entrance before or after the loading operation; but in our view the accident cannot be said to have happened "at the site" when the lorry, having left the loading point and completed its turning manoeuvres, had set off on its journey.
13. Whether an accident has occurred by reason of a failure in the conduct of an undertaking is essentially a question of fact and degree (R v Associated Octel Co Ltd, [1996] 1 WLR 1543, Lord Hoffmann at pp. 1548-1549); but before that question can arise, in our opinion, there must be evidence that, on one possible view, would entitle the jury to conclude that there was such a failure. In our opinion, it could not be said on any view of the evidence that the accident was a consequence of a failure in the appellant's conduct of its undertaking. When the accident occurred the lorry had travelled a significant distance away from the site on a public road and the driver's actings and responsibilities were no longer related to the appellant's activities on the site.
14. For these reasons, we are of the opinion that the sheriff ought to have upheld the submission of no case to answer and that, in any event, the evidence that went to the jury could not properly support a conviction on the charge. On the view that we have taken, we need not consider the argument that the appellant cannot be said to have failed to provide a banksman.
15. Other charges might have been brought in respect of this tragic accident; but the Crown chose to indict the appellant under the 1974 Act and by the terms of the charge did so on a narrow basis that the evidence simply did not support.
16. For these reasons we shall allow the appeal and quash the conviction and sentence.