Recent court update insights 2024

In this update we analyse a selection of key workplace risk and regulation cases from the last six months, along with some key takeaways which businesses can adopt for their own organisations.

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

INEOS were fined £400,000 at Falkirk Sheriff Court on 8 March 2024 after an employee fell into a container of dangerous chemicals, suffering severe burns.

The worker at INEOS’ chemical site in Grangemouth was attempting to clear a “sump” (a ground-level container of hazardous substance) when protective grating gave way and their leg was submerged in the caustic solution.

Lessons learned 

This case reiterates the importance of identifying hazards before work takes place via effective risk assessments. These should be undertaken by a competent person and outline control measures for organisations to action immediately. 

Additionally, a safe system of working requires duty holders to consider suitable precautions, such as effective grating and barriers around the container in this case. 

The worker’s leg was only submerged for a handful of seconds as they retained a grip on the surrounding rail. Had the worker fallen into the solution fully, the injuries may well have been fatal. The courts will consider injury potential as well as those actually sustained when reaching an appropriate fining figure.

In 2014 Sean Anderson fell 72 feet to his death through open grating on an offshore platform. The precise circumstances leading to the fall were never fully established.

BP pled not guilty to charges under health and safety legislation, but the jury returned a majority guilty verdict following an eight-day trial at Aberdeen Sheriff Court.

BP argued that there had been a hard barrier around the open grating in the form of scaffolding. Consequently, all reasonably practicable steps had been taken to avoid a fall risk.

The Crown maintained that the risk was not inconceivable – there were serious deficiencies in the safety arrangements adopted around the management of open gratings. These deficiencies were shown by the fact that Mr Anderson had fallen through open grating. The Crown argued that these health and safety risks should have been identified and remedied before the accident.

Lessons Learned

Material factors played a significant part in the calculating of the fine in this case. 

The Sheriff considered the following material factors when fixing the fine of £650,000 upon BP:

• the fall was an isolated incident;
• BP had taken broader steps to address open grating risks, albeit falling short in these circumstances;
• the level of harm caused by BP’s breach of health and safety law was “high” as the accident resulted in a fatality;
• the likelihood of harm arising was assessed as “low”; and
• BP had previous health and safety convictions.

NHS Lothian were fined £220,000 by Edinburgh Sheriff Court in March 2024, after two successive incidents of patients falling from windows at the Western General Hospital in Edinburgh.

Both were vulnerable patients whom the Court considered merited greater protection.

The first patient, aged 55, was admitted to the neurosurgery ward after sustaining a head injury during a suicide attempt. He had received surgery known to cause confusion, delirium, and anxiety, and was pre-categorised as mentally at risk.

The second patient aged 79 presented with hallucinations and delirium. He had made multiple attempts to abscond after being admitted to hospital and was clearly unsuited to an open ward. Plans to transfer the patient to more secure facilities had been discussed, but not implemented.

Windows in the rooms were not restricted to the required 100mm opening gap, and it was foreseeable that patients in a state of confusion were at increased risk of attempting to exit the building in unusual ways. The first patient fell from a second-floor window, the latter through a first-floor window. 

Lothian Health Board pled guilty to breaches of s3(1) and s33(1)(a) Health and Safety at Work Act 1974 for breaching their duties towards non-employees. They were fined £220,000 for the combined incidents. 

Lessons learned

This case emphasises the continuing obligation on employers (and in particular public authorities) to ensure safe systems of work are in place. This is particularly important when there can be a large volume of service-users who use the premises.

In the largest fine of 2024 to date, BAM Nutall Limited were fined £2.345 million after an employee drowned in the River Aire on 30 October 2017.

The employee had been on a boat removing debris at the bottom of weir gates when the boat capsized due to turbulence caused by the waterflow over the weir gates. The 60-year-old employee was recovered by a diver but pronounced dead two days later.

Lessons learned

The HSE investigation identified a catalogue of errors leading to the incident. Before undertaking the work, the company failed to plan or undertake any form of risk assessment. 

There was no evidence that the company had regard to the known risks of removing debris from water or the well-established controls that should be put in place. 

Investigators also found that the accident was easily avoidable. The company had several operatives trained and authorised to control the weir gates who could have slowed the flow of water but failed to do so. 

Assured Healthcare (Scotland) Limited were fined £90,000, with a £4,500 victim surcharge, after breaches under s3(1) and s33(1) of the Health and Safety at Work Act 1974 led to the death of Elizabeth Glen.

Glen suffered from Parkinson’s as well as osteoarthritis. Carers attended at Glen’s home, where they would regularly use a hoist to transfer Glen from her bed to an armchair.

The hoist had been reported as defective while in use by another company and subsequently repaired and declared safe. However, Assured Healthcare failed to ensure that the hoist being used was the correct model and suitable for the work being undertaken.

It transpired that the hoist was not strong enough, and its piston snapped while moving Glen. This caused her to be thrown against the ground, fracturing her pelvis. Glen developed bronchopneumonia due to her immobilisation and died shortly after the accident.

Lessons learned

 It is worth reflecting on the factors that the Court considered most relevant when considering its sentencing of the company.

The Court considered the factors outlined in the recent cases of HMA v Tigh-Na-Muirn Ltd [2023] HCJAC 30 and Linbrooke Services Ltd v HMA [2023] HCJAC 31 (both analysed in our workplace risk and regulation 2023 case law update) including the length of the breach, the consequence of the breach, and any mitigating elements.

When considering the fine to be imposed, the Court considered the following:

• the breach was not an isolated incident as the hoist had been in continual use for over six months before its piston snapped;
• a failure to adequately review hoist equipment posed a foreseeable danger to elderly persons, who were the hoist’s intended audience;
• it was an aggravating factor that death had resulted from the breach;
• there was no evidence that the incorrect hoist had been installed for profit, with the Court accepting this was an oversight; and
• the company had an “exemplary health and safety record” with no previous convictions.

The £90,000 fine was discounted to £60,000 on account of an 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. 

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