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

[ Home ] [ Databases ] [ World Law ] [ Multidatabase Search ] [ Help ] [ Feedback ] [ DONATE ] Scottish High Court of Justiciary Decisons You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> T W SCOTT (PAINTING CONTRACTORS) LIMITED v. PROCURATOR FISCAL, ABERDEEN [2000] ScotHC 74 (7th July, 2000) URL: https://www.bailii.org/scot/cases/ScotHC/2000/74.html Cite as: [2000] ScotHC 74 [ New search ] [ Help ] T W SCOTT (PAINTING CONTRACTORS) LIMITED v. PROCURATOR FISCAL, ABERDEEN [2000] ScotHC 74 (7th July, 2000) APPEAL COURT, HIGH COURT OF JUSTICIARY Lord Cameron of Lochbroom Lord Caplan Appeal No: 1271/00 OPINION OF THE COURT delivered by LORD CAMERON OF LOCHBROOM in APPEAL of T. W. SCOTT (PAINTING CONTRACTORS) LIMITED Appellants ; against PROCURATOR FISCAL, Aberdeen Respondent : _______ Appellants: T. G. Thomson; McGrigor Donald (Glasgow) Respondent: A. M. Henderson, A. D.; Crown Agent 7 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: "(1) Between 22 September 1998 and 26 October 1998, both dates inclusive, at Cults Academy, Hillview Drive, Cults, Aberdeen, being an employer in terms of the undernoted Act, you T. W. SCOTT (PAINTING CONTRACTORS) LTD did fail to ensure so far as was reasonably practicable, the health, safety and welfare at work of your employees in respect that: (a) you did fail to carry out a suitable and sufficient assessment of the risks to health and safety of your employees arising out of or in connection with the conduct of your undertaking at Cults Academy, Hillview Drive, Cults, Aberdeen, namely the painting of the extent of said Cults Academy, in that you failed to identify the risk of the tower scaffolding becoming unstable whilst being moved and the risk of injury thereby; (b) you did fail to provide information to two of your employees, namely George Anderson Dickson and Thomas McArthur Mireylees, both c/o Grampian Police, Queen Street, Aberdeen, on (1) the risks to health and safety to which they were exposed whilst they were at work; (2) the risks to health and safety or persons not in your employment arising out of or in connection with the conduct of your undertaking; and (3) the preventative and protective measures to be followed by said employees. CONTRARY to Section 2(1) and 33(1)(a) of the Health and Safety at Work Etc Act 1974 (2) Between 22 September 1998 and 26 October 1998, both dates inclusive, at Cults Academy, Hillview Drive, Cults, Aberdeen, being an employer in terms of the undernoted Act, you T. W. SCOTT (PAINTING CONTRACTORS) LTD 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 by your undertaking, at said Cults Academy, were not exposed to risks to their health and safety in respect more particularly that: (a) you did fail to carry out a suitable and sufficient assessment of the risks to health and safety of persons not in your employment arising out of or in connection with the conduct of your undertaking at said Cults Academy, in that you failed (1) to identify pupils at said school as being exposed to the risk of physical injury during school hours and (2) in particular, to identify the risk of the tower scaffold becoming unstable whilst being moved and the risk of injury thereby; and (b) on 26 October 1998, you did fail to ensure that the working platform, namely the Boss Tower Scaffold, provided for use by your employees, was so erected and used to ensure, so far as was reasonably practicable, that it did not become accidentally displaced so as to endanger any person and that when altered it remained stable and as a result, said tower scaffold was moved at a time when it exceeded the safe base to height ratio and was unstable, and at a time when it could reasonably be anticipated that pupils of said school would be in the playground area and said tower scaffold was left free standing without suitable support such as stabilisers or outriggers, whereby said tower scaffolding fell on to Andrew Byres (born 20.11.1986), and Craig Robert Morrice (born 09.11.1985), both c/o Grampian Police, Queen Street, Aberdeen, both pupils at said Cults Academy, who were seriously injured. CONTRARY to Section 3(1) and 33(1)(a) of the Health and Safety at Work Etc Act 1974". [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 account that the Appellants had provided information in the form of a risk assessment and method statement albeit said documents were found to be inadequate. (b) The Sheriff, in selecting the sentence on charge 1 failed adequately to take into account and to give due weight to the training record pertaining to the relevant employees. The Appellants demonstrated a degree of responsibility to Health and Safety concerns by training. (c) The Sheriff, in selecting the sentence on charge 2 failed to give due consideration to the degree of responsibility which was demonstrated by the appellants and she failed adequately to take into account and to give due weight to the explanation tendered that the works were due to be commenced during school vacation but due to delays in the contract, which were not occasioned by the appellants, the works required to be undertaken at the relevant time. The appellants, during a pre-contract meeting requested that the works be delayed to the following year because of the works being conducted during school term. (d) The Sheriff, in selecting sentence on charges 1 and 2 failed adequately to take into account and give due weight to the fact that both charges arise out of essentially the same accident and circumstances and the failing in respect of charge 1 was effectively the same failing in respect of charge 2. Separatim , the Sheriff considered the appropriate level of culpability to be the mid to high range for each offence. In opposing the sentence on charges 1 and 2 she effectively imposed a sentence which exceeded the maximum for charges arising out of the same set of circumstances. (e) The Sheriff, in selecting sentence on charges 1 and 2 failed adequately to take into account and to give due weight to the excellent health and safety record of the appellants." [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: "Considering the evidence I took the view that the appellants had been cavalier in their approach to the risks occasioned by the mere presence of a tower scaffold in a school. They had completely failed to inform their employees of the matter set out in paragraphs 2 and 3 of charge 1. Such risks assessments as were carried out by them were almost meaningless in the context of the work being done. The two school boys were injured because the appellant had failed to take reasonable steps to ensure that pupils at the school were not exposed to risks." [8] In relation to the grounds of appeal founded upon, the sheriff tells us this: "(a) The 'risk assessment' and method statement provided by the appellant's were meaningless. The employee Mr Mireylees had not seen either of them. Mr Dickson's evidence was, at best for the appellants, that he had seen the method statement but had not read it in detail. He had certainly not seen any of the subsidiary documents referred to therein. Neither employee had the particular risks to children brought to their attention. Nowhere in the documents referred to were the risks to children identified. The risk assessment had been prepared by Mr Bradley whose evidence was that he did not know what equipment was being used on site. (b) The training spoken to by the employees was negligible. Mr Mireylees and ( sic ) received no formal training. Mr Dickson had attended one course on the safe use of scaffolding. He could not remember when. There was another course, which he could recall attending, which he thought might have dealt with scaffolding. He had not received any updated training. I did not accept the evidence of Mr Bradley that he made sure the relevant documents were read on site. ... (d) The two charges relate to different matters. The first charge relates to employees and the second to non-employees. Consequently, I imposed different levels of fine. The employees, I accepted were experienced and had some, although very little, training, On charge two, I was of the view that the children and others at the locus had been almost entirely disregarded by the appellants. A serious accident had happened as a result of the appellants' failures. (e) I would have imposed higher fines had the appellants not been first offenders." [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. © 2000 Crown Copyright BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII URL: https://www.bailii.org/scot/cases/ScotHC/2000/74.html