Ruling shows Scottish courts will take tough stance on health and safety breaches, says expert

Laura Cameron of Pinsent Masons, the law firm behind Out-Law.com, said that the ruling at Airdrie Sheriff Court late last week also highlights that Scottish courts could take into account tough sentencing guidelines that apply in England and Wales when sentencing those responsible for health and safety breaches.

In the case at Airdrie Sheriff Court, business owner Donald Craig was sentenced to two years in prison for health and safety law failings which resulted in the death of one of his workers and the serious injury of another. Craig's business, and another business which certified the cherry picker as safe, were fined.

"In sentencing, the Scottish court confirmed that they 'had regard to' the sentencing guideline in force in England and Wales – those guidelines have produced hefty fines for health and safety breaches with the most serious running to many millions of pounds for large companies," Cameron said. "The approach of the court in this case suggests that similar considerations may apply here." 

"With health and safety legislation being applicable both north and south of the border, there is much to be said for conformity in sentencing too, but a requirement to have regard to certain guidelines is not the same as requiring compliance with them – the Scottish courts have yet to suggest this. On the contrary, Scottish case law on sentencing continues to play a significant role," she said.

"Organisations in Scotland must take note; there is no doubt that those who flout health and safety law can expect increasing fines and, for the individuals involved, immediate imprisonment is becoming a reality," Cameron said.

On 20 July 2012 a 'cherry picker' hired by Craig Services & Access Limited (Craig Services) buckled while it was in use. The cherry picker's basket fell approximately 30 metres. Gary Currie and Alexander Nisbet had been working in the basket at the time of the incident. Currie did not survive the fall.

Sheriff Petra Collins criticised Craig Services' "cavalier" attitude towards safety. A jury had earlier unanimously found that the company had breached its duties in relation to ensuring those using the cherry picker were not exposed to risks of serious injury or death. Sheriff Collins said Donald Craig "was at the heart of every decision made in relation to the cherry picker" and "shares that guilt".

Craig Services was fined a total of £61,000 for its part in the health and safety breaches, which included failing to properly maintain the cherry picker and hiring out of the cherry picker when it had not been certified as safe.

J M Access Solutions Ltd was fined £30,000 for failing to carry out an adequate 'thorough examination' of the cherry picker. John McCallum, sole employee of the company, had certified the equipment as safe on the basis of a visual inspection only in April 2012.

Sheriff Collins said Craig had lied to McCallum in relation to the condition of the cherry picker and repairs made to it. However, she criticised McCallum for accepting what Craig had told him and not "looking behind it".

"The process of any thorough examination is a rigorous one, in which the thorough examiner must not assume that anything is safe," the sheriff said. "[McCallum] did not carry out any load-test on the repaired cherry picker, he did not carry out any other test on the repaired section, he did not contact the manufacturer, or any other professional competent person, such as a skilled engineer in the field."

"Had J M Access done its job properly on 27 April 2012, the cherry picker would not have passed its thorough examination, and would not have been in service on 20 July 2012, and the catastrophic events of that day would not have happened," she said.

According to the court, Craig Services is in liquidation and J M Access Solutions has "apparently ceased trading". Sheriff Collins noted the financial position of both companies and admitted that "there is no realistic prospect" that any fine she could have imposed would be paid. However, she said their "absence of means" was not a weighty factor in determining the level of fines to issue, and instead said they would "serve to mark society’s condemnation of each company’s conduct, and may act as a deterrent to others".