D Geddes (contractors) Limited Against Neil Johnson Health & Safety Services Limited
| Jurisdiction | Scotland |
| Judge | Lord Tyre |
| Neutral Citation | [2017] CSOH 42 |
| Docket Number | CA110/16 |
| Published date | 14 March 2017 |
| Date | 14 March 2017 |
| Court | Court of Session |
OUTER HOUSE, COURT OF SESSION
[2017] CSOH 42
CA110/16
OPINION OF LORD TYRE
In the cause
D GEDDES (CONTRACTORS) LIMITED
Pursuer
against
NEIL JOHNSON HEALTH & SAFETY SERVICES LIMITED
Defender
Pursuer: R Dunlop QC, Pugh; Thorntons Law LLP
Defender: M Macleod QC, G Reid; CMS Cameron McKenna LLP
14 March 2017
Introduction
[1] On 26 July 2012, Mr Joseph Troup, an employee of the pursuer, sustained a fatal accident while working at the pursuer’s premises at Hatton Mill Quarry, Angus. Mr Troup was the driver of a lorry which was in the course of tipping a load of materials into a feed hopper. At the edge of the raised area above the hopper there was a stop block referred to as a bund, whose purpose was to prevent lorries from reversing over the edge. As Mr Troup went to tip his load, he reversed his lorry over the bund into the hopper and was killed.
[2] The accident was investigated by the Health and Safety Executive. It was found that there was a build up of tipped sand and gravel in front of the bund that had allowed it to act as a ramp over which a large-wheeled vehicle was capable of driving. The HSE determined that the stop block had been ineffective due to a combination of insufficient height and the ramping effect of the sand and gravel.
[3] The pursuer was charged on indictment with a breach of Regulation 6 of the Quarries Regulations 1999, which requires a quarry operator to take the necessary measures to ensure, so far as is reasonably practicable, that the quarry and its plant are designed, constructed, equipped, commissioned, operated and maintained in such a way that persons at work can perform the work assigned to them without endangering their own health and safety or the health and safety of others. A plea of guilty was tendered. On 12 February 2015, the pursuer was convicted of the offence at Forfar Sheriff Court and, following a plea in mitigation, was fined £200,000.
[4] At the time of Mr Troup’s accident, the defender was engaged by the pursuer as a health and safety advisor with regard to the operation of the quarry. As part of the provision of that advice, the defender undertook regular inspections of the quarry and supplied inspection reports to the pursuer. In this action the pursuer seeks to recover the £200,000 fine from the defender. The pursuer avers inter alia that an ordinarily competent health and safety adviser exercising ordinary skill and care would have advised it that the bund was lower than the minimum height required by the relevant Approved Code of Practice, and of the need for the bund to be as vertical as possible to avoid ramping. Had it been so advised, the pursuer avers that it would have taken the steps necessary to rectify those defects before the accident and resultant prosecution.
[5] The defender denies having been negligent or in breach of contract, and contends inter alia that the accident occurred due to negligence on the part of the pursuer in failing to take measures to address the build up of tipped material in front of the bund. The pursuer in turn also denies having been negligent. The defender further asserts, however, as a preliminary issue, that the pursuer is not entitled to recover as damages a penalty imposed upon it for its own criminal act. That issue came before me for debate. The defender moved the court to grant decree of absolvitor.
Argument for the Defender
[6] The defender’s argument was founded upon a special application of the general policy of the law that ex turpi causa non oritur actio, ie that no action may be founded upon turpitudinous conduct. Under reference to the speech of Lord Hoffmann in Gray v Thames Trains Ltd [2009] AC 1339 at paragraph 32, it was submitted that this special application of the ex turpi causa principle had a wider and a narrower form. In its wider form, compensation was not recoverable for loss suffered as a consequence of one’s own criminal act. In its narrower form, compensation was not recoverable for damage that flowed from loss of liberty, a fine or other punishment lawfully imposed as a consequence of one’s own unlawful act. The present case fell within the narrower form of the application. It had a particular policy justification, namely to avoid inconsistency between the criminal and civil law. Failure to have regard to the need for consistency was apt to bring the law into disrepute: cf Lord Rodger of Earlsferry in Gray v Thames Trains Ltd at paragraph 77.
[7] In the present case it had to be assumed that the fine imposed by the criminal court reflected the pursuer’s culpability after taking account of any mitigating factors. This was not a fixed penalty. It would have been for the High Court of Justiciary on appeal, and not a civil court, to determine whether the sentence had been appropriately imposed on the pursuer. It would, moreover, undermine the intention of Parliament if a person with statutory responsibility could escape punishment by passing the buck to another. Regulation 21 of the Management of Health and Safety at Work Regulations 1999 (SI 1999/3242) provided expressly that it was not a defence to criminal proceedings that the contravention had occurred because of an act or default on the part of a health and safety advisor.
[8] There was no exception from the narrower rule for strict liability cases. The authorities founded upon by the pursuer were almost all wider rule cases where the particular policy issue of conflict between criminal and civil law did not arise. The reasoning of the Court of Appeal in Osman v J Ralph Moss Ltd [1970] 1 Lloyds Rep 313, the case principally founded upon by the pursuer, was unsatisfactory and should not be followed. The Court of Appeal ought instead to have followed the robust statement of policy by Rowlatt J in R Leslie Ltd v Reliable Advertising and Addressing Agency Ltd [1915] 1 KB 652. This court should find the analysis in Gray v Thames Trains Ltd to be more persuasive than that in Osman. The policy in relation to non-recovery of loss arising from lawful punishment was clear.
Argument for the Pursuer
[9] On behalf of the pursuer, it was submitted that the applicability of the ex turpi causa principle could not be determined without proof. The authorities established that the principle applied where the offence of which the claimant had been convicted required proof of mens rea: for example, in Gray v Thames Trains Ltd the claimant, although suffering from mental disorder allegedly caused by the defendant’s negligence, had had the necessary mens rea to commit the offence of manslaughter. In the case of a strict liability offence where mens rea was absent, there was no policy reason to deny a right of recovery. Osman v J Ralph Moss Ltd, in which a motorist convicted of driving without insurance was held entitled to recover his fine from an insurance broker who had misrepresented to him that he was insured, was authority for the proposition that the exclusion of a right of recovery did not apply in such a case. That decision had been cited without adverse comment in text books. It had been referred to by the Court of Appeal in Safeway Stores Ltd v Twigger [2011] 2 All ER 841 (Pill LJ at para 49) and by the Supreme Court in Patel v Mirza [2016] 3 WLR 399 (Lord Sumption at para 242) without any suggestion that it had been wrongly decided. Reference was made to a number of other authorities which were consistent with the approach in Osman.
[10] In policy terms, it was in the public interest that employers be obliged to act on expert health and safety advice: that was why the 1999 Regulations made it compulsory to employ such advisors. Denying a claim against a negligent advisor did not enhance the protection of employees. The policy considerations were different from those applicable when dealing with turpitude on the part of the claimant. It would serve no good policy objective to deny a right of action in circumstances where the act or omission resulting in the imposition of a criminal penalty was neither intentional nor actionably negligent. As a general rule, where there was a wrong, there should be a remedy (Jones v Kaney [2011] 2 AC 398, Lord Dyson at para 113).
Decision
[11] I was not referred to, and am not aware of, any Scottish authority bearing directly on the point at issue. Senior counsel for the pursuer helpfully drew my attention to Campbell v Campbell (1840) 1 Rob 1 (reported more fully at 7 Cl & F 166), in which one of the partners in a distillery business which had reached a settlement for payment of a penalty after conviction for purchasing illicitly distilled whisky sought to recover from the other partners a proportion of the sum that he had paid. Unfortunately, because the ex turpi causa point had not been insisted upon by the defenders prior to or during the jury trial at which the case was heard, the House of Lords declined to entertain it (see the Cl & F report at 177-8). The decision is accordingly of little assistance, and it is appropriate for this court to look to English (and other) authorities for guidance.
[12] There is no absolute rule in English law that a person who has committed a criminal act is precluded from recovering damages sustained as a consequence of it. In Burrows v Rhodes and Jameson [1899] 1 QB 816, which was an action for damages by a participant in the illegal Jameson raid on the South African Republic in 1895, the court held, as narrated in the headnote, that
“Where a person is induced by the fraudulent misrepresentation of another to do an act which, in consequence of such misrepresentation, he believes to be neither illegal nor immoral, but which is in fact a criminal offence, he has a right of action against the person so inducing him for damages sustained by him in consequence of his having done such act.”
This is, in effect, the other side of the coin from the wider form of the application of the ex turpi causa principle. The matter was put thus by Denning LJ in Strongman...
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