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APPEAL COURT, HIGH COURT OF JUSTICIARY
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Lady Paton
Lord
Carloway
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Appeal Nos: XC378/08 and XC384/08
OPINION OF THE COURT
delivered by LADY PATON
in
APPEALS AGAINST SENTENCE
by
L H ACCESS TECHNOLOGY LTD and BORDER RAIL &
PLANT LTD
Appellants;
against
HER MAJESTY'S ADVOCATE
Respondent:
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First appellant (LH Access Technology Ltd): Gilchrist Q.C.; B. Smith;
Brechin Tindal Oatts, Glasgow
Second appellant (Border Rail & Plant Ltd): Gray Q.C.;
R. Thomson;
Graeme Runcie, Edinburgh
Respondent: M.
Hughes, Advocate Depute; Crown Agent
29 January 2009
Fatality
caused by breaches of health and safety legislation
[1] At a
trial diet on 22 May 2008 at Edinburgh Sheriff Court, the first appellant ("LH
Access") pled guilty to contraventions of sections 3(1) and 33(1)(a) of
the Health & Safety at Work etc Act 1974.
The second appellant ("Border Rail") pled guilty to contraventions of
sections 2(1) and 33(1)(a) of the 1974 Act. Those contraventions, read short, involved
failures to provide a safe system of work and to make a necessary risk
assessment. In the event, an employee of
Border Rail namely Neil Martin, aged 46, was crushed to death on 21 March 2006 when the wheel of a defective mobile
work access platform ran over him.
[2] In his
reports, Sheriff N.M.P. Morrison Q.C. summarised the Crown's agreed
narrative relating to LH Access as follows:
" On 21 March 2006 at about
4.00am Neil Martin, a fitter/operator employed by [Border Rail], was assisting
in the movement of a mobile work access platform from a railway construction
site in Waverley Station. The machine
could not be operated from the control panel.
The machine was one which could be operated on rails or on the
ground. A decision was taken to move the
machine. It was [Border Rail's] intent
that the machine would be repaired on site and then driven from the site onto a
low loader to be removed to [LH Access's] premises. The machine was owned and manufactured by [LH
Access]. It is in fact an adaptation of
a road based mobile elevated work platform originally manufactured by another
company, but converted for road and rail use by [LH Access]. A fitter from [LH Access], Steven Barclay,
arrived and attempted to repair the fault in the drive control on site. He was unable to do so. Mr Barclay, and Mr Martin, agreed
to a system of work to move the machine off site out of the railway station to
the low loader in the street in Calton Road. Because the machine could not be operated
from the control panel, it was necessary to move the vehicle by manually
operating the override or by-pass valves on each side of the machine. One by-pass valve operated forward and
reverse and the other operated steering functions on the machine. These valves were situated between the front
and rear wheels. It was necessary for a
person to stand between the wheels to operate the valves. Mr Barclay operated the forward valve on one
side of the machine and Mr Martin operated the steering by-pass valve on the
other side of the machine. The
two men were out of sight of each other.
To communicate with each other it would be necessary for each man to
shout over the engine noise in order to be heard. While in Calton Road the accident
happened. It is not known how Mr Martin
came to be run over, but the rear wheel of the machine on Mr Martin's side ran
over the back of his lower legs and onto his lower back. Mr Martin was taken to the Accident and
Emergency Department of the Edinburgh Royal Infirmary. He never regained breathing or consciousness
and was pronounced dead at 5.20am.
The agreed narrative noted that the
plea from [LH Access] was accepted on the basis that they should have provided
a safe system of work by providing banksmen, in particular, one at the front
and one at each side of the machine.
The narrative included reference to
an accident investigation report by Dr Stewart Arnold who stated that the
system of work employed to recover the vehicle was unsafe and inadequately
planned, and in particular a safe method of recovery had not been planned, the
method chosen was unsafe and placed Mr Martin at unacceptable risk of
serious injury, that Mr Martin having to stand between the wheels to steer the
vehicle placed him at risk and there was no direct line of sight between
Mr Martin and Mr Barclay."
A similar Crown narrative was presented in respect of
Border Rail, with the penultimate paragraph being in the following terms:
"The agreed narrative noted that the
plea from [Border Rail] was accepted on the basis that when its foreman, Steven Payne,
became aware of the operation he should have stopped it because it was unsafe."
[3] In a
written submission in mitigation presented on behalf of LH Access, it was
explained inter alia that:
"... the machine was moved in the only
reasonably practicable way in the circumstances, though it is accepted by LH
Access that there was inadequate consideration of risk assessment and that the
system of work gave rise to danger. In
fact, as the Principal Inspector of Railways in charge of the subsequent
investigation states (and this is accepted by LH Access 'it would have been
reasonably practicable to set up a safe system to move the machine perhaps
using additional people and a better communication system'. In other words, the simple precaution of
appointing banksmen and/or employing more effective communication between
Messrs Barclay and Martin would have resulted in a safe system or work,
all other things being as they were."
[4] The
sheriff took time to consider the agreed narratives, written submissions, and
oral pleas in mitigation. On the
following day, 23 May 2008, he imposed fines as
follows:
LH Access: £240,000 (representing a fine of £300,000
discounted by 20 per cent to reflect the plea of guilty), six months being
allowed for payment.
Border Rail: £240,000 (again representing a fine of
£300,000 discounted by 20 per cent to reflect the plea of guilty), six months
being allowed for payment.
[5] In
each case, the sheriff gave the following sentencing statement:
"The first panel, LH Access,
manufactured a mobile elevated work platform and supplied it to the second
panel, Border Rail. The machine broke
down. Border Rail expected the machine
to be repaired on site at Waverley Station before being moved off site. Mr Barclay, the engineer of LH Access,
could not repair the fault. A decision
was made to move the machine off the site.
Mr Barclay and Mr Martin, a fitter operator employed by Border
Rail, moved the machine. Because the machine
could not be craned or towed away in the circumstances, it was decided to use
the override valves on the machine to operate the machine itself in order to
move it. Mr Barclay operated the
forward/reverse valve and Mr Martin operated the steering valve on the other
side of the machine. This meant that Mr
Martin had to stand and walk between the left hand forward and rear wheels of
the machine to operate the steering valve.
While on Calton Road, somehow Mr Martin
became caught under the rear wheel which ran over him and very tragically he
died.
The system of work employed to move
the machine was unsafe:-
·
It was not adequately planned.
·
There was no adequate assessment of risk.
·
The method chosen was unsafe and placed Mr 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 Mr Barclay and Mr
Martin.
·
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.
·
There should have been an adequate means of communication.
LH Access pleaded guilty
at this trial diet to an amended charge 2 on the basis that it would have been
possible to set up a safe system of, for example, banksmen and a means of
communication. The charge also specifies
failure to make a sufficient assessment of risk to safety.
Border Rail pleaded guilty
at this trial diet to an amended charge 3 because its foreman, Mr Payne,
having seen the moving of the machine in progress, did not stop it. Border Rail, therefore, failed to provide a
safe system of work and failed to make a sufficient assessment of risk.
I have considered very
carefully all that has been said on behalf of the Crown and on behalf of LH
Access and Border Rail.
In considering the
appropriate fine in relation to LH Access, I take into account particularly the
following:-
·
The method adopted to move the machine was inherently and
obviously unsafe, involving, as it did, a man walking between two moving
wheels.
·
I think that what was done fell well below what was
reasonably practicable.
·
The loss of Mr Martin's life was not therefore
chance. It was an unnecessary loss of
life.
·
There was no evidence of LH Access 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.
·
LH Access has no previous convictions and has otherwise a
good safety record.
·
There was an admission of responsibility and plea discussions
resulting in a plea which obviated the need for a trial.
·
Steps have been taken by LH Access to remedy safety
deficiencies.
·
The turnover of the company in 2007 was £3.7 million and
there was a loss of over £29,000. 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.
In relation to Border Rail, I take into account
particularly the following:-
·
While it may be said that moving the machine off site or
certainly the method adopted it was not expected by the company, the failure to
recognise the risk and to stop the operation once it was or should have been
appreciated that it was obviously unsafe is a serious failure of duty.
·
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 that Border Rail was profiting
financially from a failure to take health and safety steps.
·
There was not a succession of safety failures or unheeded
warnings.
·
The company has no previous convictions and otherwise has a
good safety record.
·
There was an admission of responsibility and plea discussions
resulting in a plea which obviated the need for a trial.
·
The turnover of the company in 2007 was £2.7 million and
there was a net profit of just under £129,000.
It was suggested that
Border Rail, Mr Martin's employer, was less culpable because, in essence -
Ø
it could not have contemplated or expected that the machine
would be moved off site rather than repaired on site or being moved in the way
it was;
Ø
Mr Barclay was the engineer from LH Access who, in effect,
would know what he was doing; and
Ø
the manuals for the machine provided by LH Access did not
mention using the valves to move the machine in the way that it was.
I do not think that an
employer such as Border Rail, which is, therefore, primarily responsible for
the safety of its own employees, can shirk that responsibility or be less
culpable where the operation was seen by its foreman, was clearly and obviously
unsafe, but was not stopped.
I make no distinction,
therefore, between LH Access and Border Rail on the issue of culpability. I take into account the fact that the pleas
are to amended charges. I have applied a
discount of 20%, in respect of the stage at which the pleas were negotiated and
tendered, to fines of £300,000.
Accordingly, the fine in
respect LH Access will be £240,000; and the fine in respect of Border Rail will
be £240,000.
The procurator fiscal informed
me that Mr Martin's family wished the fines to be expended on safety in the
rail industry. Fines go to the
Exchequer. Unfortunately I have no power
either to direct or recommend that fines are applied to any particular purpose
or cause."
[6] LH
Access and Border Rail now appeal against the fines imposed on the ground that
they are excessive.
Submissions on behalf of LH
Access
[7] Senior
counsel presented his submissions in three chapters:
The basis upon which the
plea was tendered and accepted
[8] It was
accepted by all concerned that, in the particular circumstances, there had been
no practical alternative to moving the machine off site in order to repair
it. Any other approach necessitated a
system of permissions which was not practicable in the time available. Thus the method adopted, while not ideal, was
the only practicable one. The relevant
failures were failures to provide banksmen or some other means of
communication. In other words, 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. Because of the lack of a
direct line of sight, it was difficult for the two men involved to
communicate with each other.
[9] The
basis upon which the plea had been tendered was summarised in the written submissions
presented on behalf of LH Access, as follows:
"It is submitted that the machine was
moved in the only reasonably practicable way in the circumstances, though it is
accepted by LH Access that there was inadequate consideration of risk
assessment and that the system of work gave rise to danger. In fact, as the Principal Inspector of
Railways in charge of the subsequent investigation states (and this is accepted
by LH Access) 'it would have been reasonably practicable to set up a safe
system to move the machine perhaps using additional people and a better
communication system'. In other words
the simple precaution of appointing banksmen and/or employing more effective
communication between Messrs Barclay and Martin would have resulted in a safe
system or work, all other things being as they were."
[10] Further
confirmation of the basis of the plea could be found in a passage in the agreed
narrative at page 11 of Appendix 2 of the sheriff's report under the
heading "Plea negotiations", where it was recorded that:
"It is of note that the plea from LH
Access is accepted on the basis that they should have provided a safe system of
work by providing banksmen and in particular banksmen - one at front and one at
Neil Martin's side. The banksmen would
have required clear instruction of what was expected of them and could have
maintained an exclusion zone around the machine. The banksmen could have ensured proper
communication between Mr Martin and Mr Barclay so each knew what the other
was doing."
[11] Senior
counsel submitted that a highly significant aspect of the plea (tendered and
accepted on the basis noted above) was that the system of work adopted did not require Mr Martin to walk between
the wheels of the platform as they were moving.
While therefore it was accepted that there had been a failure to
identify the risk encompassed by the foreseeability that he might walk between
the moving wheels, it had not been necessary for him to do so. The system of work involved the driver moving
the machine forwards; if, at any time,
the steering required to be corrected, the driver was to stop the machine; the steering valves were to be operated by
the second man (Mr Martin) as the
machine stood stationary; then the
driver would start the machine in forward motion again.
[12] Senior
counsel accepted that there had, nevertheless, been evidence that Mr Martin
had stepped between the moving wheels in order to operate the steering
controls. For example, a CCTV camera
directed towards the footbridge leading to Calton Road had recorded the platform
as it moved along. As the platform came
into view on the CCTV recording, it appeared that Mr Martin may have been
operating the steering controls while the wheels were moving. Equally however it was clear that he had not
been carrying out that manoeuvre for a considerable part of the operation; and it was clear in terms of the Crown
narrative and the submissions in mitigation that the system of work did not
require Mr Martin to operate the steering while the wheels were
moving. It was also of significance that
the platform had moved a considerable distance along a difficult route, without
mishap, before the moment of the CCTV recording. That fact demonstrated that it was possible
to operate the system of work safely.
[13] Counsel
submitted that this important basis of the plea of guilty might not have been
fully appreciated by the sheriff. The
sheriff 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 plea 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. There were several possible explanations,
only one of which was that he had been trying to steer the machine while the
wheels were moving. The plea had been
tendered on the basis that it was impossible to say what precisely had
happened.
The absence of aggravating
factors and the presence of mitigating factors
[14] Senior
counsel contended that, bearing in mind the guidelines set out in R v
F Howe & Son (Engineers) Ltd [1999] 2 Cr App R (S) 37, the level of
fine imposed was too high. The fatality
made the case serious, but the accepted absence of an identifiable causal
connection diminished that aspect of the seriousness of the case. Counsel drew a parallel to the circumstances
in R v Cardiff City Transport Services [2001] 1 Cr App R (S) 41. In
the present case, there had been an absence of the sort of aggravating
circumstances referred to in F Howe &
Son (Engineers) Ltd, while there had been many mitigating
circumstances. The latter included a
good safety record and a lack of previous convictions; the breach being an isolated occurrence; no attempt to save money or to make a profit
from the manoeuvre in question; no
question of warnings or guidance being ignored;
and a responsible and co-operative attitude adopted by LH Access
following upon the accident.
The means of the appellant
LH Access
[15] Senior
counsel submitted that (i) the fine imposed was approximately five times
greater than the company's average annual profit figure. (ii) The fine was also greater than the
company's net current assets (or net worth) at the relevant time, namely £164,000,
and if enforced might render the company unable to continue trading. (iii) The English Sentencing Advisory Panel's
proposals for corporate sentencing in health and safety cases, contained in
their Consultation Paper "Sentencing for Corporate Manslaughter, November 2007"
at page 24, paragraph 58 et seq,
recommended a fine calculated as a percentage of average annual turnover. LH Access's average annual turnover during
the three years 2005 to 2007 was £2.72 million.
In a "best case" situation, the penalty recommended would be 2.5 per cent
of that average annual turnover, namely £68,000. In a "worst case" situation, the penalty
recommended would be 7.5 per cent of turnover, namely £204,000. Thus the fine of £300,000 clearly exceeded
the recommended levels.
[16] Senior
counsel accepted that LH Access was part of a group of companies, and that the
group turnover was greater than £2.72 million.
However the sheriff had been made aware of that fact, and had
nevertheless assessed the fine on the basis of the accounts and figures of LH
Access alone, and not on the basis of the group accounts. The appeal court was invited to do likewise,
but to impose a much lower fine.
Submissions on behalf of Border
Rail
[17] Senior
counsel for Border Rail also presented submissions in three chapters.
The basis upon which the
plea was tendered and accepted
[18] Senior
counsel explained that Border Rail had required the mobile platform for
maintenance of overhead lines and other similar work. The platform in question had proved so
unreliable that an instruction had been given that the platform should be
repaired on site, and then removed and returned to the premises of LH Access
for a full service. Border Rail was not
aware that the platform was capable of being moved without first being repaired
on site. The operator's manual made no
reference to the method ultimately adopted to move the platform. 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.
[19] The
plea tendered on behalf of Border Rail, and accepted by the Crown, was to a
breach occurring when Border Rail's supervising foreman, Mr Payne, saw the
platform being manoeuvred along. As was
stated in the agreed Crown narrative:
"As regards Border Rail, the plea is
accepted on the basis that once their supervisor Steven Payne had become
aware of the operation, he should have stopped it and assessed the situation,
as the system of work he saw was clearly unsafe. He became aware of the operation once the
[mobile platform] had reached the bottom of the ramp and was working its way
round the corner."
[20] At that
point, a substantial part of the platform's journey had been completed. The Crown had accepted the plea on the basis
that criminal liability on the part of Border Rail arose only when Mr Payne
became aware of the operation. That was
significant, as by that time not only was the manoeuvre substantially advanced,
but also the operation appeared to be under the control of an employee of LH
Access, Mr Barclay. It was
understandable that, in those circumstances, Mr Payne formed the
impression that the manoeuvre was under the control of someone with appropriate
knowledge and experience. Accordingly Mr Payne
refrained from intervening. So far as
Border Rail was concerned, the first appreciation that it was possible for the
platform to be removed from site without first having been repaired in situ arose from this incident.
[21] It was
accepted that these matters did not amount to a defence in law. Nevertheless they put into proper context the
circumstances in which the offence came to be committed by Border Rail. What occurred was wholly unforeseen and
unanticipated by Border Rail. When the
manoeuvre first came to the attention of Mr Payne, it was understandable
that he should form the impression that matters were under control, and that an
appropriate system was being adopted by a person with the requisite
experience. Nothing was happening at
that stage to put Mr Payne on notice about possible risks. Criminal liability on the part of Border Rail
thus arose not at the stage of discussing and deciding upon a system of work,
but at a stage when a system of work had already been devised and was in the process
of being implemented under the supervision of the manufacturer's employee. Thus the culpability of Border Rail must be
at the lower end of the scale.
The absence of aggravating
factors and the presence of mitigating factors
[22] There
were many mitigating circumstances.
Border Rail had been so concerned about the accident that the platform
(and another similar platform) had been sold.
The company no longer used that type of platform. Border Rail had a good safety record. The company had received no enforcement
notices or warnings. Border Rail
provided training for company employees in relation to safety measures. In relation to aggravating factors, it was
accepted that the death itself was an aggravating factor. However the death was not directly linked to
an attempt to make a financial profit in some way. The incident was an isolated occurrence: the plea of guilty was in relation to one day
only. The injury had occurred at a late
stage in the manoeuvre. The accident had
not occurred as a result of a failure to heed advice or guidance. Thus many aggravating factors had been
absent, while significant mitigating factors had been present.
The means of the appellant
Border Rail
[23] In this
context, the submissions presented by senior counsel for LH Access in relation
to the Sentencing Advisory Panel were adopted.
Border Rail's average turnover for the years 2005, 2006, and 2007 was
£2.6 million. A percentage of 2.5
resulted in a penalty of £65,000, while a percentage of 7.5 resulted in a
penalty of £195,000. The sheriff had
imposed a fine which represented in excess of 9 per cent of average
turnover, in effect reflecting the most serious type of breach resulting in
corporate manslaughter.
[24] In
relation to questions of profit and loss, Border Rail had made a substantial
loss in the first part of 2008. The
projected profit and turnover in 2008 were unlikely to be different from those
in 2007, when the turnover had been £2.5 million, and the net profit £59,631.
[25] Two
other companies (Border Rail Training Ltd and Rail Access Platforms Ltd) were
in an informal association with Border Rail.
Nevertheless no company was a parent company of Border Rail, nor was
there any subsidiary company or a formal group of companies. Thus while the three companies were
associated, and while there were common factors linking them (for example, the
two directors of Border Rail were shareholders in the other companies), it
appeared that Border Rail's viability stood or fell on its own merits. In any event, the turnover and profit of the
other two companies were modest. The
question of linked companies had not been addressed in the sheriff court
hearing. Thus this court was invited not
to consider the other companies' accounts.
Viewing matters on that basis, senior counsel stated that the level of
the fine imposed was such that it was thought unlikely that Border Rail could
trade out of its financial difficulty.
Border Rail rarely knew what work would be available beyond the first
quarter of the year. As at the date of
the appeal hearing, Border Rail had no work booked beyond the end of January
2009.
[26] In
conclusion, senior counsel invited the appeal court to take the view that (i)
the basis of the plea disclosed a level of culpability at the lower end of the
scale; (ii) there were many mitigating
factors, and no aggravating factors (except, of course, the death itself); and (iii) the guidance given by the Sentencing
Advisory Panel suggested that the fine imposed failed adequately to reflect the
mitigating factors. In all the
circumstances, the fine imposed was excessive.
Discussion
LH Access,
the manufacturers of the mobile platform
The basis upon which the
plea was tendered and accepted
[27] The
manoeuvre being undertaken required the presence of banksmen, as there was no
adequate line of vision or means of communication between the person
responsible for the drive controls and the person responsible for the steering
controls. It was reasonably foreseeable
that quick and effective communication between, or to, those two operators
(or either of them) might be required in many situations, not necessarily
involving the operating of the steering controls while the wheels were
moving. For example, the person walking
on the side of the steering controls might find himself in a position of difficulty
or danger, yet be unable to communicate that difficulty or danger quickly and
effectively to the driver. The operator
of the steering controls might find that the moving platform was tending to
trap him too close to a kerbing or a wall or some other obstacle; or he might find that his clothing had become
snagged, restraining him in a position of danger; or he might have been momentarily distracted
and inadvertently moved into the path of a moving wheel. The duties of the banksmen would include keeping
a good look-out 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. Where necessary, the
banksmen would issue immediate warnings (shouted or signalled or both) to
either or both operators. The content of
the warning would depend on the circumstances, but might be an instruction to
the driver to halt the moving machine, or an instruction to the operator of the
steering controls to stand well back and keep clear of the moving machine.
[28] In
addition to the examples of events giving rise to danger or difficulty outlined
above, it was also reasonably foreseeable that the person operating the
steering controls might be tempted to take a short-cut by adjusting the
steering 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. Thus although the system of work
did not require the person steering
to operate the steering controls while the wheels were moving, it was
reasonably foreseeable that an employee involved in the system of work might be
tempted to adjust the steering while the wheels were moving. The sentencing sheriff, while no doubt
appreciating the variety of ways in which risk of injury could arise in the
absence of banksmen or a clear line of vision to (or communication with) the
driver, tended to focus upon this one particular possible sequence of events,
namely the adjusting of the steering controls while the platform was
moving. However as indicated above,
there were in fact many ways in which someone operating the steering controls
could be at risk of injury, and the particular emphasis or focus adopted by the
sheriff cannot, in our view, alter the facts of the case or the grave failure
in duty underlying the accident which occurred.
[29] Given
the many obvious ways in which risk of injury to the steering-controls operator
could arise in the course of the manoeuvre, we consider that the provision of
banksmen was fundamental to the safety of the manoeuvre. Such provision would have enabled a clear
exclusion zone to be maintained around the platform whenever it was in motion,
so that no human being (or part of a human being) would be permitted to be in
the path of the moving platform. If such
an exclusion zone had been maintained, Mr Martin would not have been permitted
to be in the dangerous position he must have been in when the rear left wheel
caught him and ran him over. The failure
to provide banksmen was thus, in our view, a grave omission, no matter what the
precise sequence of events leading to the accident. We are not therefore persuaded that the
gravity of the offence was 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. Nor
are we persuaded that the circumstances of this case can be equiparated to the
circumstances in cases such as F Howe &
Son (Engineers) Ltd or Cardiff City Transport Services. In those cases, the risk
of injury was in our view much less obvious.
In any event, as was pointed out by Scott Baker J in F Howe & Son (Engineers) Ltd:
"... 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."
Faced with the obvious risks of injury in the present
case, we consider that it was eminently reasonably practicable to provide
banksmen to fulfil the duties of look-out and warning outlined above. The omission to provide banksmen resulted in
a breach in duty which fell far below the appropriate standard. In the result it is our opinion that 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.
The absence of aggravating
factors and the presence of mitigating factors
[30] We
consider that it was a major aggravating factor that an employee of the
manufacturers 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 referred to in paragraphs [27] and
[28] above. The manufacturers' employee
introduced an unsafe system of work without any compensatory features such as
the provision of banksmen or look-outs. Thus
even taking into account the more positive features in the present case, such
as the company's good safety record, the isolated nature of the occurrence, the
fact that the system of work was not chosen primarily to make a financial
profit or to save money, the fact that this was not a case in which warnings
were ignored, and finally the responsible approach adopted by the company after
the accident (including full co-operation with the relevant authorities, and
the introduction of improvements in health and safety procedures), we are not
persuaded that the sheriff erred to any extent in his assessment of the
aggravating features and the mitigating features of the case.
The means of the appellant
LH Access
[31] On
the basis of the financial information relating to LH Access available to the
sheriff, he was in our view fully entitled to impose the fine he did. Had the group accounts and figures been
explored, the level of fine might well have been greater. As for the recommendations of the English
Sentencing Advisory Panel, these are indeed recommendations and not in any
sense prescriptive. Even taking those
recommendations into account, we are not persuaded that the fine imposed by the
sheriff fell outwith the range of reasonable levels of fine available to him.
[32] For
all of the above reasons, the appeal on behalf of LH Access is refused. We shall allow LH Access six months from the
date of issuing of this opinion for payment of the fine.
Border Rail, the deceased's employers
The basis upon which the plea was tendered and accepted
[33] Mr Payne
was a foreman, employed by Border Rail, and having responsibility for Mr Martin. Mr Payne saw the manoeuvre being carried
out. He 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.
By its plea of guilty, Border Rail accept that Mr Payne should have
stopped the operation because it was unsafe.
Yet Mr Payne did not intervene, either to stop the manoeuvre or to
check what safety precautions were in place (for example, the presence of
banksmen). The failure to put in place
necessary safety precautions, such as the provision of banksmen, was in our
view a grave breach of duty, for all the reasons noted in relation to the
appellant LH Access above. In all the
circumstances we are not persuaded that the presence of an employee from LH
Access either absolved Mr Payne from his responsibilities or mitigated Border
Rail's breach of duty to the extent being suggested by counsel.
The absence of aggravating factors and the presence of
mitigating factors
[34] Senior
counsel for Border Rail was correct in acknowledging that the death of Mr Martin
was a major aggravating factor. In our
view, a further major aggravating factor was the direct responsibility which
Border Rail's supervising foreman had for the deceased. The failure to intervene and check the safety
precautions of a manoeuvre which was unexpected and unauthorised by the
operator's manual was in our view a highly significant failure. Thus even taking into account circumstances
such as the company's good safety record, the isolated nature of the
occurrence, the fact that Border Rail was not involved at the early stages of
setting up the system of work and had no financial or profit motive in its
design, and the responsible attitude of the company following upon the
accident, we are not persuaded that the sheriff erred in his assessment of the
aggravating and mitigating factors.
The means of the appellant Border Rail
[35] Financial
information available includes an average annual turnover of £2.6 million
during the years 2005 to 2007, and net profits of £200,624 and £59,631 in 2005
and 2007, albeit there was a net loss of £47,390 in 2006. Despite the company's relatively poor start
at the beginning of 2008, the predicted turnover and profit for 2008 is thought
will be similar to those in 2007. In
these circumstances, even taking into account the recommendations of the
English Sentencing Advisory Panel, we are unable to characterise the fine
imposed as falling outwith the range of reasonable levels of fine open to the
sheriff.
[36] For
all of the above reasons, the appeal on behalf of Border Rail is refused. We shall allow Border Rail six months
from the date of issuing of this opinion for payment of the fine.
