Recent court update insights

Keeping on top of developments in workplace risk and regulation is essential for any business. 

It is critical that businesses take note of learning outcomes arising from regulatory prosecutions. Our team of workplace risk and regulation specialists (which brings together colleagues from health and safety, personal injury, employment, data protection, and immigration) monitor a range of key developments and prosecutions, as explored below.

This high-level overview of notable developments is reviewed and updated every six months.

In early 2022, inspectors of the Health and Safety Executive (HSE) visited a housing development that was being constructed by Amro Construction Ltd. 

Following their inspection, a catalogue of fire safety concerns came to light. In particular, the presence of an open flame gas stove amongst large volumes of combustible material, a lack of fire precautions, poor site security, and inadequate washing facilities.

Two points were particularly noteworthy:

(a) This was a timber-frame project and there had been a failure to assess the fire risks posed by this development. These were risks that applied not only to the construction site, but also to the residential area close by; and

(b) This was not the first time the HSE had cause to give the company advice. Consequently, this was an example of a company failing to implement measures to protect employees and the public from a fire occurring or spreading.

Typically, it would be expected that the HSE inspector would investigate the actions of the company (being the relevant duty holder), with the company being prosecuted (or not, as the case may be).

However, during the course of the investigation, the managing director, David Taylor, deliberately obstructed the inspector by refusing to provide requested information.

Both the company and the director were the subject of prosecution. Both pled guilty to the offences.

The company was fined £20,000 for breaching Section 2(1) and 3(1) of the Health and Safety at Work etc. Act 1974. The director was fined £3,000 for a breach of section 33 of the 1974 Act.

If you’re interested in the valuable lessons that can be learned regarding compliance in health and safety investigations, please read our previous article on the difficulties encountered by employees of Southern Water Services Limited during an investigation undertaken by the Environment Agency (EA). Although an English case, the outcome is of equal relevance in Scotland.

Most people in Scotland will have heard of the derailment of a Scotrail high speed train near Stonehaven in August 2020 which resulted in three fatalities, including the driver and the conductor, and injuries to a number of other passengers.

The 6.38am train from Aberdeen to Glasgow was stopped south of Stonehaven because of a landslip. After being held in position for several hours, the train then returned north to allow passengers to alight at Stonehaven station. It was during this movement that the train struck debris on the railway line, causing its derailment.

The context of what happened – not just in the early hours of 12 August 2020 (much of Scotland had experienced torrential rainfall leading up to this period) but also in the preceding years – is important. There had been a land slide near the crash site in 2002 and the learning from that event was that a new drain should be installed in that area. Another landslide occurred in 2008, which served to emphasise the potential for failure of the soil (whether due to erosion or because the soil had become saturated). 

Carillion were contracted to carry out the improvement works, but seemingly due to a breakdown of communication the drain had not been built to the agreed specifications. 

The Court concluded in its sentencing remarks that had the new drain been built according to the correct specifications, the extreme rainfall could have been accommodated and the accident would have been avoided. To compound the issue, it was identified that Network Rail did not complete their check in 2013 to confirm that the drain had been properly constructed. The drain was not in fact inspected until 2020 – an inspection the Court concluded was “cursory”.

Here, there are three key points. The importance of:

(a) Learning from previous near misses;

(b) Effective communication; and

(c) Properly inspecting and maintaining equipment to avoid the risk of failure.

Over and above all of this, Network Rail was also criticised for its failure of adequate training and assurance systems in relation to its management of weather conditions. For example, the risk was not properly assessed, no speed restrictions were placed on the line, and so on.

Having regard to guidance that exists in a number of Scottish authorities, as well as using the relevant guideline that applies in England and Wales (as a cross-check), and taking into account relevant aggravating and mitigating factors, the court concluded that a fine of £6,700,000 was appropriate (discounted from £10,000,000 on account of the early guilty plea that meant a complex, and likely distressing, trial was avoided).

The case of Victoria Rose v WNL Investments Limited concerned a civil claim brought by the family members of Andrew Rose, who died after falling through a fragile roof at premises owned by WNL. The case concerned two key issues:

(a) Was Mr Rose an employee or an independent contractor (not discussed in this commentary); and

(b) Could the pursuers rely upon provisions in the Work at Height Regulations (WAH) 2005 and Construction (Design and Management) (CDM) Regulations 2015 to illustrate the standards expected of employers in their common law duties of care?

Note that section 47(2) of the Health and Safety at Work Act 1974 (as amended in 2013) provides that: “Breach of a duty imposed by a statutory instrument containing (whether alone or with other provision) health and safety regulations shall not be actionable except to the extent that regulations under this section so provide”.

The defenders in this case were concerned that the pursuers were relying on section 47 to advance the case that a statutory breach could be used to be found a civil action. Put another way, the defenders were concerned that the pursuers’ case sought to treat the CDM and WAH Regulations as informing the nature of a common law duty of care, without any proper basis. 

It was argued by the defenders that not every failure to comply with health and safety regulations would amount to negligence, and in any event the pursuers still had to prove negligence on the part of the defenders.

The case came before the court for a debate (hearing on legal arguments, but not on evidence).

There are two key takeaway points:

• That an employer (or other duty holder) remains under a statutory duty in certain situations to do particular things or achieve a specific result is not in itself relevant to inform the existence of any common law duty in those situations; and
• Health and safety regulations have potential relevance in assisting the court to come to its own conclusions about the nature of a common law duty of care. The existence and content of such regulations may inform the court about what risks have been generally recognised in a particular situation but there is no greater role for health and safety regulations than that – there is no legal effect such that any regulation can inform common law duties of care.

The outcome of two tram prosecutions – within one month of each other – can provide useful lessons to all duty holders for ensuring a safe workplace for employees and members of the public alike.

Croydon Trams

In July, Transport for London (TfL, responsible for the infrastructure of the tram network) and Tram Operations Ltd (TOL, responsible for running the tram) pled guilty to health and safety offences that were prosecuted as a result of the Croydon tram disaster, and were fined £10 million and £4 million respectively. The driver was also charged, pled not guilty, and was ultimately acquitted.

In summary, a tram entered a curve when it was going too fast (likely as a result of driver disorientation when entering the Sandilands tunnel), overturned, and derailed with the consequence that seven passengers lost their lives, and only one of the 69 passengers escaped injury.

Over the course of the driver’s trial, it was identified that:

(a) An engineer had anticipated driver disorientation and had suggested remedial action since as early as 2007/8;

(b) There had been a significant near miss at the same location only 10 days earlier;

(c) That near miss was reported by a member of the public, but nothing serious was done about it;

(d) The tram speedometer was under-reporting;

(e) Whilst a Route Hazard Assessment was undertaken in 2005, it was incomplete and, in any event, no risk assessment at all was done; and

(f) A safety committee had identified in 2008 that a number of lights in the tunnel were not working, but nothing was done and subsequent safety review meetings were considered to be “unacceptably complacent”.

The sentencing remarks are 12 pages, but are a helpful read for those involved in health and safety risk assessment as these go into the specific health and safety failings in much greater detail.

Edinburgh Trams

In August 2023, Edinburgh Trams Limited pled guilty following the death of a 53-year old, and was fined £240,000. The pedestrian died after being struck by a tram whilst on a tram crossing.

The subsequent investigation found Edinburgh Trams Limited had failed to carry out a suitable and sufficient risk assessment of the layout of the crossing and had failed to ensure that it provided sufficient warning of the crossing. They had also failed to assess the volume of the warning bell on the trams, or the emergency braking distances of trams, both of which would have been relevant control measures.

However, that there was no written risk assessment was compounded by the fact that there was no system for reviewing and updating any assessment of the risks that might be posed. A near miss incident at the same crossing had occurred two years earlier. It was reported, but that did not prompt any action in regards to risk assessments.

What can be learned

Four things can be learned from both tram prosecutions that are of general application across all industry sectors:

• Undertake risk assessments;
• Ensure health and safety committees are acting upon expert/employee advice (and that those actions do not inadvertently drop off the health and safety agenda);
• Near misses are suggestive of an accident waiting to happen – quite literally – and should be properly investigated; and
• Ensure that any accident reports are responded to and acted upon in a timely fashion.

Appeals against health and safety prosecutions are not commonplace, often because there tends to be a guilty plea and the discretion exercised by the sentencing judge is usually within that broad margin of discretion that is offered to a first instance decision-maker.

There have been two recent appeals against sentence (that is to say, appeals against the sentence imposed – they are not appeals against the fact the companies were convicted of health and safety offences), with judgments issued within days of one another in August 2023.

Linbrooke Services Limited

This appeal arose out of a prosecution following its 20-year-old employee who was fatally injured when they fell from a step ladder while undertaking installation work at Bearsden train station. The company was found guilty after trial and the sheriff imposed a total financial penalty of £750,000. This included compensation of £200,000 to the deceased’s parents and a fine of £550,000 to be paid by the company.

The appeal proceeded on three grounds, although the company wished to be clear that it was only challenging the £550,000 fine to be paid by the company and not the award of compensation to the parents. The company argued that:

(a) The deceased’s contribution to the accident should have been taken into account;

(b) The Sheriff erred in concluding that the company was a “large” company for the purposes of the sentencing guideline; and

(c) The Sheriff (in determining the fine to be paid) had wrongly increased the final “harm” assessment by twice taking into account the resulting death.

The Appeal Court rejected both initial arguments but did accept the third point raised.

The Appeal Court concluded that the tragic consequences of the offence were first (and accurately) taken into account by the Sheriff when assessing the seriousness and likelihood of harm. However, having identified the correct range of possible fines in regards to the company’s financial size, the Sheriff should not then have gone on to conclude that the involvement of a fatality meant his starting point was towards the upper end of that fine range.  According to the Appeal Court, this action ran the risk of double-counting and resulted in a disproportionate final outcome.

The Court replaced the fine of £550,000 with a fine of £400,000.

Tigh-Na-Muirn Ltd

This was an appeal by the Crown in respect of an unduly lenient sentence. The appeal arose out of a prosecution following the death of an elderly care home resident after he ingested a quantity of ammonium-based cleaning fluid. The circumstances surrounding the fatality were complicated by the emerging public health response to COVID-19. The company pled guilty and was fined £20,000 (discounted from £30,000 on account of the early guilty plea).

The basis of the Crown appeal was that the Sheriff had failed to give due weight to the seriousness of the offence and the risk of harm to residents of the care home. That risk arose because the company failed to make any risk assessment and to prevent or control exposure to chemicals, neither of which were relevant to the risks presented by COVID-19 and the company’s attempts to keep residents safe during the pandemic. 

The Crown claimed that the Sheriff was wrong to consider the issue as an isolated incident in circumstances where the company had pled guilty to a continuing breach of a duration over two months. All things considered, the fine selected by the Sheriff was claimed to be unduly lenient and failed to send a meaningful message to those responsible for health and safety duties.

The Appeal Court concluded that the Sheriff had given inadequate consideration to the degree of risk and the extent of danger, and failed to recognise that the health and safety breach was a continuing one. 

Since the fine imposed by the Sheriff failed to fulfil the relevant sentencing objective of punishment and deterrence, the fine was increased to £90,000 and then discounted to £60,000 to reflect the early guilty plea.

Do you need specialist legal advice on a workplace matter? We have specialists in health & safety, employment, immigration, data protection, personal injury, litigation, and licensing who work together as part of our workplace risk and regulation group and tailor advice for clients to ensure all relevant issues have been considered. Contact our team today.