Dundee Cold Stores+electroguard Security Systems+robert A.s. Crockett And Partners Ltd V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord MacLean,Lord Clarke |
| Neutral Citation | [2012] HCJAC 102 |
| Published date | 24 July 2012 |
| Court | High Court of Justiciary |
| Date | 24 July 2012 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Clarke Lord MacLean | [2012] HCJAC 102 Appeal No: (1) XC70/12; (2) XC67/12; and (3) XC73/12 OPINION OF THE COURT delivered by LORD CLARKE in NOTES OF APPEAL AGAINST SENTENCE by (1) DUNDEE COLD STORES; (2) ELECTROGUARD SECURITY SYSTEMS; and (3) ROBERT A.S. CROCKETT & PARTNERS LIMITED Appellants; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant (1) : McCall; Capital Defence
Appellant (2); Gilchrist, QC; Simpson & Marwick
Appellant (3): Duff; Brodies
Respondent: Brown, AD; Crown Agent
24 July 2012
[1] These three appellants pled guilty at Dundee Sheriff Court to breaches of the Health and Safety at Work etc. Act 1974 ("the Act"). In the case of the first and second named appellants the breaches in question were of section 3(1) and 33(1)(a) of the Act and in the case of the third named appellant the breaches in question were of section 2 and section 33(1)(a), All the offences related to an incident on 3 October 2008 whereby Christopher Robert Carson, an employee of the third named appellants, when working on the roof of premises owned and operated by the first named appellant at Whittle Place, Gourdie Industrial Estate, Kingsway, Dundee fell through a fragile roof light falling a distance of approximately 6.5 metres to severe injury.
[2] The charges against the first named appellant libelled the following failure in statutory duty:-
"You did fail to ensure, so far as was reasonably practicable, the health, safety and welfare of said persons not in your employment and in particular Christopher Robert Carson...in that you did;
(a) fail to make a suitable and sufficient assessment of the risks to the heath and safety of persons not in your employment, arising out of or in connection with your undertaking, namely the employees of Robert A.S. Crockett & Partners Limited and the employees of Electroguard Security Systems and you did fail to identify the risks to which they were exposed when engaged in work at height on your premises and in particular the risks arising from fragile roof lights.
(b) fail to ensure that a safe system of work was being operated, in so far as was reasonably practicable, to ensure the health and safety of aforesaid employees of Robert A.S. Crockett & Partners Limited and Electroguard Security Systems when engaged at work at height on your premises".
The failures and duties libelled against the second appellant's were in identical terms to those just set out (a) save for the reference to "on your premises" which reference became a reference to "on the premises of Dundee Cold Stores Ltd" and (b) the reference to "the employees of Electroguard Security Systems".
[3] In the case of the third named appellants the failures of statutory duty libelled were:-
"Being an employer within the meaning of the aftermentioned Act and having a duty in terms of section 2 of the aforementioned Act to ensure so far as is reasonably practicable, the health, safety and welfare at work of your employees, and having duties in terms of the Management of Health and Safety at Work Regulations 1999 and in particular a duty to make a suitable and sufficient assessment for the risks to the health and safety of your employees to which they were exposed while they were at work, did fail to ensure, so far as reasonably practicable, the health, safety and welfare at work of your employees who were engaged in the task of working at height to install electrical cables, joint boxes and security lighting at aforesaid premises and in particular you did fail to ensure, so far as reasonable practicable, the health, safety and welfare at work of your employee Christopher Robert Carson...in that you did:-
(a) fail to make a suitable and sufficient assessment of the risks involved in the health and safety of your employees which arose when they engaged in the aforesaid task;
(b) fail to provide such information, instruction, training and supervision which was necessary to ensure, so far as was reasonably practicable, the health and safety at work of said employees engaged in aforesaid task; and
(c) fail to provide a system of work for the aforesaid task that was so far as was reasonably practicable, safe and without risk to health in that you failed to have in place a system to ensure that employees could work safely."
All three appellants pled guilty to the said charges by means of section 76 procedure.
[4] The circumstances of the accident which gave rise to the charges are set out in the sheriff's report to this court to which reference is made. Put shortly, Christopher Carson was, at the time of the accident, working as an electrician's labourer in the employment of the third named appellants. The first named appellants owned and occupied buildings at the site at Whittle Place, Gourdie Industrial Estate, Kingsway, Dundee. The locus of the accident was a building on the site known as Wash Plant 1. In March 2008 the first named appellants decided to install a security system at said site. The second named appellants won the contract to carry out the work which included the fitting of security cameras, sensors and PA system around the site. After the work was placed with the second appellants, the first named appellants decided that they wanted to have a lighting system fitted which could be linked to the security system. This work was not within the expertise of the second named appellants and they elected to subcontract it to the third appellants. Although some preparatory inspection of the site was carried out by representatives of the appellants and there were discussions about the work involved, under reference to site plans, it was decided that the exact cable routes to be installed would be chosen as the work progressed. None of the appellants instructed or carried out a risk assessment process in respect of the work to be carried out. Nor was any method statement as to how the work was going to be done safely produced by anyone. There was no on site safety assessment made prior to the work commencing on 3 October 2008.
[5] Mr Carson and the third named appellant's foreman, Trevor McCabe, were working together on the lighting installation at the building known as Wash Plant 1. They were the only employees of the third appellants working at that site on 3 October 2008. They had spent the morning clipping cables at the front of the building in question. Mr McCabe had to attend to another job in the afternoon. Before leaving the site at lunch‑time he gave instructions to Mr Carson as to how he should go about completing the work. He instructed Mr Carson to finish clipping cables at the top of the right hand side elevation of Wash Plant 1. The height at which the cable was to be attached was some 5 metres off the ground and 1 metre from the apex of the roof. As the sheriff narrated at page 6 of her report, "In order to complete the job, Mr Carson decided that it would be necessary to access the roof of the wash‑house". He decided that that would be necessary because a cable which he was to attach had been left on the roof of the wash‑house having been previously fed through a gap in the wall from the roof of the adjoining building by Mr McCabe. Mr Carson considered using a ladder to access the cable on the roof. He, however, had a fear of heights. Moreover the ladder in question appeared not to be of sufficient length to take him to the required height. He, accordingly, decided to access the roof using a mobile elevating work platform "MEWP". In order to make the installation of the cable ready for his foreman's return, Mr Carson intended to arrange the cable which was resting on the roof of Wash Plant 1 so that it would be capable of being clipped to the wall of the side elevation of the building in readiness for it to be connected to a security light and joint box. The cable in question could not be accessed either by standing on the ladder or the mobile platform which Mr Carson had raised to the level of the roof. He, accordingly, stepped from the basket of the platform and stood on the roof. He then walked to the rear of the roof and passed two roof lights on his left hand side which were not covered or fenced off or protected in any way. Having done so, he, however, found that he had left the necessary clips in the basket of the MEWP and he began to walk back across the roof to collect these clips. As he did so he stood on one of the roof lights and fell through it hitting machinery in the building below, before landing on a concrete floor.
[6] At the time of the accident Mr Carson was, as described by the sheriff at page 4 of her report:-
"A very fit and strong individual. He was a floor gymnast and had competed at national level. He boxed for two years and practiced Jujitsu and worked as a gymnastics coach. He also used to cycle every day."
As a result of the accident he sustained serious injuries. On admission to hospital he was found to have suffered fractures to three vertebrae in his back. He also suffered a wound when, as a result of landing on his back, a drill bit in his overall pocket punctured his lower back. He fractured his left shoulder in three places and his shoulder was also dislocated. He suffered bruising and cuts to both shins and also suffered a head injury although his skull was not fractured. After hospital treatment for one week he was discharged. He had surgery in August 2009 to reattach three tendons in his shoulder and shave splinters of bone. This was followed by a course of physiotherapy. He continued to have problems related to the said shoulder injury. He had become irritable and verbally aggressive towards his parents. He suffered problems with regard to memory and concentration. In early 2009 he was referred to a consultant in charge of brain injury rehabilitation at the Royal Victoria Hospital in Dundee. The consultant, who saw him, formed the view that he had a number of problems with cognitive and...
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