Her Majesty's Advocate V. Munro And Sons (highland) Limited
| Jurisdiction | Scotland |
| Judge | Lord Nimmo Smith,Lord Philip,Lord Clarke |
| Neutral Citation | [2009] HCJAC 10 |
| Year | 2009 |
| Published date | 29 January 2009 |
| Date | 28 January 2009 |
| Court | High Court of Justiciary |
| Docket Number | XC326/08 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Nimmo Smith Lord Clarke Lord Philip | [2009] HCJAC 10 Appeal No: XC326/08 OPINION OF THE COURT delivered by LORD NIMMO SMITH in CROWN APPEAL AGAINST SENTENCE by HER MAJESTY'S ADVOCATE Appellant; against MUNRO & SONS (HIGHLAND) LTD Respondent: _______ |
Appellant: Bain, Q.C. A.D.,:Crown Agent
Respondents: J. G. Thomson; Anderson Partnership, Glasgow
28 January 2009 Introduction[1] The Health and Safety at Work etc Act 1974 ("the 1974 Act") provides by section 3(1):
"It shall be the duty of every employer to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment who may be affected thereby are not thereby exposed to risks to their health or safety."
Section 33(1) provides that it is an offence for a person (a) to fail to discharge a duty to which he is subject by virtue of section 3(1), among other provisions.
[2] The respondents, Munro & Sons (Highland) Ltd ("Munro"), pled guilty at a continued preliminary hearing in the High Court of Justiciary sitting at Edinburgh on 11 April 2008 to charge 2 in an indictment, which as amended was in the following terms:
"(2) On 5 July 2006 at the A9 Inverness to Scrabster Road at Tomich Junction, Invergordon, Easter Ross and at premises occupied by you at the Deephaven Industrial Estate, Evanton, Easter Ross, you MUNRO & SONS (HIGHLAND) LIMITED being an employer within the meaning of the aftermentioned Act, 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, namely Julia MacKay, c/o Northern Constabulary, Dingwall, Christina Fraser, formerly residing at Garstein, Arabella, by Tain, and members of the public using said road at the time, who may have been affected thereby were not exposed to risk to their health and safety and in particular;
(a) you did cause and permit WALTER MACLENNAN, an employee of said company, to transport a load, namely a Michigan L190 wheeled loader by means of a mechanically propelled vehicle, namely an Articulated Unit and a Low Loader Trailer Combination, registered number T373 KMS and did fail to provide said WALTER MACLENNAN with sufficient and adequate load securing equipment, in particular sufficient and adequate chains or lashings and fastenings, fail to ensure that the said load was sufficiently secure and fail to ensure that the brakes of said load were effective, in working order, and in operation;
(b) you did cause and permit said WALTER MACLENNAN to load said mechanically propelled vehicle with a load of 30130 kilograms, causing the gross weight of said mechanically propelled vehicle and load to be 48350 kilograms, being a load in excess of its maximum permissible gross weight of 44000 kilograms shown on the plate fitted in accordance with provisions of the Road Vehicles (Construction and Use) Regulations 1986;
whereby the said chains broke and said load broke away from said mechanically propelled vehicle and rolled into the path of motor vehicle registered number P678 JAS then being driven by said Julia MacKay, whereby said Julia MacKay was severely injured and said Christina Fraser, a passenger in said motor vehicle being driven by said Julia MacKay, was so severely injured that she died: CONTRARY to the Health and Safety at Work etc Act 1974, section 3(1) and section 33(1)(a)".
The Crown accepted pleas of not guilty by Munro and by their employee Walter MacLennan to the remaining charges on the indictment.
[3] After hearing counsel, the sentencing judge imposed a fine of £3,750 on Munro, discounted by 25% from £5,000 to reflect the plea of guilty and the stage at which it was tendered. The Crown have now appealed against this sentence on the ground that it was unduly lenient. No exception is taken to the 25% discount, so there is no need for us to set out the factors, principally the stage at which an unequivocal intention to plead guilty in the terms finally accepted was intimated to the Crown, which the sentencing judge took into account when selecting it. The issue for us is therefore whether in the whole circumstances the starting point of £5,000 can be regarded as unduly lenient.
The facts
[4] The sentencing judge was presented with an agreed narrative, on which his report to this Court is based. Some additional information was provided in the course of discussion before us. This allows us to give the following account.
[5] Munro are a wholly owned subsidiary of William Munro Construction (Highland) Ltd ("Construction"). The directors of both companies are members of the Munro family, principally William Munro and his brother David, who are respectively managing director and transport director. The principal activity of Munro is that of haulage and waste disposal contracting. They operate from various premises on the Cromarty Firth, including premises at Deephaven Industrial Estate, Evanton, and Kindeace Quarry.
[6] Umax Limited ("Umax") are international pipeline fabricators. They also have a base at Deephaven Industrial Estate and, as we understand it, are part of an international group of companies.
[7] In June 2006 Umax decided to sell a Michigan L190 wheeled loader ("the Michigan") and indicated through the trade locally that the machine was available. The Michigan had a bucket at the front, a cab in the centre and an engine at the rear, and stood on four wheels fitted with large pneumatic tyres. At the time the tyres were filled, not with air, but with a solution of water and salt, adding a weight of about four tonnes in total; this is a recognised method of giving additional stability to the machine. In that condition, the Michigan weighed 30.13 tonnes.
[8] William Munro, the managing director of Munro, expressed an interest in the purchase of the Michigan. On 3 July 2006 he and Angus Gillies, Munro's contracts manager, visited the Umax premises and test drove it. The Umax site manager, Gavin Sutherland, participated. The agreed narrative states that both Gavin Sutherland and Andrew Gillies "claim that they were not aware of and did not discover any braking defect on the machine during this process". There was in fact a serious defect in the parking brake, the nature of which we discuss in more detail below. Following the initial test drive the Michigan was moved about 200 yards to Munro's premises, where its use was further demonstrated. Angus Gillies and William Munro decided that, before a sale was concluded, further testing was required at Kindeace Quarry, where it would be used. They both understood that the Michigan weighed about 27 tonnes, and were unaware that the water in the tyres added about four tonnes.
[9] Accordingly, on 5 July 2006, the lorry driver Walter MacLennan was instructed by William Munro to transport the Michigan from Munro's base at Evanton to the quarry. Walter MacLennan had been employed as a jobbing lorry driver by Munro for more than 15 years. He collected a low loader trailer from other premises belonging to Munro and drove it to their premises at Evanton where the Michigan had last been tested. The low loader trailer had two loading ramps at the rear, which were raised and lowered by hydraulic arms. They were not designed to be capable of restraining the load when raised. The load required to be separately secured once placed on the trailer. Two securing chains were supplied with the trailer. At Munro's premises, Angus Gillies drove the Michigan up the lowered ramps onto the low loader trailer, put its gears into neutral, switched off the engine and operated a pull lever in order to activate the handbrake. According to the agreed statement, he "apparently remarked to the driver Walter MacLennan that 'it had good brakes'". The Michigan was butted up against the front of the trailer and its bucket was lowered onto the swan neck where the trailer deck rose over its front wheels. Walter MacLennan was then left to secure the load. He applied the two securing chains by passing the front chain through the eyes and over the arms behind the bucket of the machine and weaving the rear chain behind the tow pin at the rear of the loader. Both chains were then tightened with a ratchet. He did not use wheel chocks. Apparently, it is not now normal practice to use them, as the size and elasticity of the tyres would necessitate very large chocks, the use of which would give rise to manual handling problems.
[10] In this situation, the following features may be noted. (1) As a result of the serious defect in the parking brake, discussed below, the Michigan's wheels were free to turn. (2) The Michigan was thus only held in place by the two securing chains, each of which, on subsequent testing, was found to have a breaking strain of 4.5 tonnes. (3) The total train weight of the articulated tractor and trailer unit was 44 tonnes. The unladen weight of the unit was 18.22 tonnes. Accordingly, when the 30.13 tonnes weight of the Michigan was added, the total weight of the laden unit was 48.35 tonnes. The amount of the overloading was approximately equal to the weight of the water in the tyres of the Michigan.
[11] Walter MacLennan then set off to drive the laden unit to the quarry. For most of his journey he travelled along the A9 road, which is comparatively level, and then turned left onto an unclassified public road leading from the A9 junction at Tomich to Newmore. This road sloped slightly uphill, at an angle of about five degrees.
[12] Meanwhile, Christina Fraser and Julia McKay were travelling in Julia McKay's Nissan Almera motor car along the A9. They both worked as beauty consultants, latterly at Debenhams store in Inverness, and shared travel arrangements. They left work at about 5.30pm, and at about 6.30pm they approached the Tomich junction. Julia McKay was driving and Christina Fraser was in the front passenger seat.
[13] By this time, the unit driven by...
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