LINBROOKE SERVICES LTD AGAINST HIS MAJESTY'S ADVOCATE [2023] ScotHC HCJAC

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You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> LINBROOKE SERVICES LTD AGAINST HIS MAJESTY'S ADVOCATE [2023] ScotHC HCJAC_31 (17 August 2023) URL: http://www.bailii.org/scot/cases/ScotHC/2023/2023_HCJAC_31.html Cite as: 2023 SCCR 271, [2023] HCJAC 31, 2023 SLT 1006, 2023 GWD 32-269, [2023] ScotHC HCJAC_31

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2023] HCJAC 31

HCA/2023/000256/XC

Lord Matthews

Lady Wise

OPINION OF THE COURT

delivered by LADY WISE

Appeal against Sentence

LINBROOKE SERVICES LIMITED

Appellant

against

HIS MAJESTY'S ADVOCATE

Respondent

Appellant: Duguid KC; Rradar

Respondent: A Gray, advocate depute; Crown Agent

17 August 2023

Introduction

[1]

On 30 March 2023 at Dumbarton Sheriff Court the appellant company was found

guilty after trial of the following charges:

"(001) between 24 May 2018 and 05 June 2018, both dates inclusive, at Bearsden

Railway Station, Station Road, Bearsden, East Dumbartonshire you...being an

employer within the meaning of the Health and Safety at Work etc Act 1974 and the

after mentioned regulations, did fail to make a suitable and sufficient assessment of

the risks to the health and safety of your employees to which they were exposed

whilst they were at work, and any other person not in your employment arising out

of or in connection with the conduct by you of your undertaking, for the purpose of

identifying the measures you needed to comply with the requirements and

prohibitions imposed upon you by or under the relevant statutory provisions in that

you fail to make a suitable and sufficient assessment of the risks to the health and

safety of your employees engaged in installation of longline public address system

equipment and, in particular, did fail;

(a)

to adequately identify the risks involved with pulling cables through a

conduit at height, having been informed of difficulties encountered by a

sub-contractor in a prior attempt to pull said cables;

and

(b)

to adequately identify the risks involved with the use of improvised

cable dispensing methods;

and, as a consequence thereof, on 5 June 2018, Matthew Mason, then employed by

you and engaged in the task of the installation of longline public address system

equipment, fell from a step ladder there on to a metal conduit and was fatally

injured;

CONTRARY to the management of Health and Safety at Work Regulations 1999

Regulation 3(1) and the Health and Safety at Work etc Act 1974 Sections 15 & 33(1)(c);

(002) on 5 June 2018 at Bearsden Railway Station...you...being an employer within

the meaning of the after mentioned regulations, did fail to ensure that work at height

was properly planned; appropriately supervised and carried out in a manner which

was so far as was reasonably practicable safe in that you did allow your employees

to work from a step ladder to pull cables through a conduit there when you had

insufficient measures in place to prevent a fall from height or ensure that the

surrounding area was free of material which could cause injury in the event of such a

fall, and in consequence thereof your employees were exposed to risks to their health

and safety, and Matthew Mason, then employed by you and engaged in the task of

the installation of longline public address system equipment, fell from a step ladder

there on to a metal conduit and was fatally injured;

CONTRARY to the Work at Height Regulations 2005, Regulation 4 and the Health

and Safety at Work etc Act 1974, Section 33(1)(c);

and

(003) on 5 June 2018 at Bearsden Railway Station...you...being an employer within

the meaning of the after mentioned regulations, did not provide sufficient work

equipment to prevent in so far as was reasonably practicable a fall occurring, in that

you did fail to provide suitable work equipment to your employees, engaged in the

task of the installation of longline public address system equipment there, who were

required to pull cables through a conduit at height from a set of step ladders which

were inappropriate for the purpose for which they were to be used due to the risk of

your employees losing their balance when applying force to pull said cables through

the conduit, and, in consequence thereof, your employees were exposed to risks to

their health and safety, and Matthew Mason, then employed by you and engaged in

said task, fell from a step ladder there on to a metal conduit and was fatally injured;

CONTRARY to the Work at Height Regulations 2005, Regulation 6(4)(b) and the

Health and Safety at Work etc Act 1974, Section 33(1)(c)."

[2]

At an adjourned diet on 15 May 2023 the sheriff imposed a financial penalty

of £750,000 which he divided in to two parts; compensation to the deceased Mr Mason's

parents in the sum of £200,000 and a fine of £550,000 to be paid by the company.

The evidence

[3]

The sheriff narrates in his report that the contentious area at trial was the opinion

evidence given by three expert witnesses. The facts were relatively straightforward.

Matthew Mason was 20 years old in 2018. He was a time served electrician. The appellants

had taken on a substantial contract which largely involved the installation of public address

systems in railway stations. Necessarily that involved running cable through metal

conduits, often at a height of 3 metres or thereby. The work at Bearsden Railway Station had

been sub-contracted to a separate company, but 11 days prior to 5 June 2018 that company

had told the appellants that they had been unable to complete the task. They had fixed the

conduit to the wall but said that they had been unable to pull the cable through it.

Mr Mason apparently heard this recounted and volunteered to do the job, which offer was

taken up by the appellant.

[4]

Although the appellant had prepared substantial documents, including those

addressing the issue of safe working practices, in advance of the contract commencing, the

employees who were tasked with actually doing the work on site were expected to follow

instructions contained in a document given to them shortly before work commenced. This

document was known as a "task briefing sheet". The six employees of the appellant,

including Mr Mason, who were to work at Bearsden on 5 June had seen such a document.

For reasons not established in evidence but against the background of the work having been

taken back by the appellant from the sub-contractor a matter of days beforehand, that task

briefing sheet was entirely silent about the required work at height, pulling cables through

conduits. Any associated risks appeared not to have been assessed.

[5]

The accident was captured on CCTV and subsequently viewed by the jury.

Mr Mason was a well built, strong young man who was seen to take part in the first element

of the job, entailing pulling out the appropriate length of cable from a drum. The cable

could only be pulled freely if the drum was lifted off the ground. Mr Mason was then seen

to put an extra length of conduit through the drum as if it were an axle for a wheel and to lift

the drum off the ground. Once the requisite length of cable was unwound by one of the

others, he was seen to put the drum on its end and to put a length of conduit through the

hole in the middle of the drum such that a length of it was protruding upwards beyond the

drum. None of this would have complied with approved cable dispensing methods, but no

system was in place to prevent improvised methods being adopted, which there ought to

have been, given the risk obviously created thereby.

[6]

There had been a site visit on 4 June 2018 when it was ascertained that the

step ladder which had been provided, notwithstanding health and safety executive

guidelines warning against the use of step ladders for various tasks to be carried out at

height, was too short. What was requested, and supplied, was not a different type of

platform, with greater security, but a taller ladder. Again, no risk assessment was carried

out.

[7]

Work then was carried out off camera, before Mr Mason was seen on the CCTV to

climb the step ladder, start pulling the cable and descend when a problem appeared to be

encountered. He then disappeared from view and returned, moving the ladder closer to the

drum and protruding conduit than it was before, and climbing even higher up the step

ladder. He was seen to resume pulling, but there then appeared to be a sudden loss of

resistance, and Mr Mason fell backwards off the ladder and onto the conduit, resulting in his

death. The cable had been pulled through the conduit after being attached to a "Fish",

effectively a long piece of wire or fibreglass which had been pushed through the conduit

from the other end and attached to the cable by insulating tape. The "Fish" had not been

attached correctly and it became detached from the cable, causing the loss of resistance.

The sheriff's approach to sentence

[8]

The sheriff produced a sentencing statement and in his helpful report explains

further the approach he took. He states that he both followed the sentencing process

guideline issued by the Scottish Sentencing Council and used the English Sentencing

Council's Definitive Guideline on sentencing in health and safety matters issued in 2015 as a

useful cross-check, as the offences were regulated by UK statute. He began by assessing the

levels of culpability and harm. On the basis of the evidence he had heard he concluded that

the level of culpability attributed to Linbrooke could be categorised as Medium. He

accepted that there was no deliberate breach on the part of the company and no flagrant

disregard for the law. He acknowledged that the use of step ladders even in inappropriate

circumstances appeared not to have been restricted to Linbrooke but to have been common

throughout the industry. The company had not been put on notice as to the risk by any

previous expression of concern about this method of working. The sheriff accepted also that

before the general contract had commenced, Linbrooke had taken steps to identify potential

hazards including those arising from working at height and to some extent had given

guidance as to systems that could be used to avoid a reduced risk. However the sheriff

regarded it as critical that by the stage of issuing final instructions in the form of the task

briefing sheet they had clearly failed to alert the employees who would actually carry out

the work to the risks involved and the need to ensure the correct equipment would be used

and be used in the correct manner.

[9]

So far as harm was concerned, the sheriff took into account both the seriousness of

the harm risked by the employer's failure and the likelihood of that harm arising. He

considered that the seriousness of the harm risked (falling from the top of a tall ladder)

should be categorised as level A while the likelihood fell into the category of medium. That

resulted in placing the offences as harm category 2 with reference to the English guideline.

He was prepared to proceed on the basis that the number of employees exposed to risk of

harm was a low one. However, the offences had resulted in the most significant cause of

actual harm. While Mr Mason might have made unwise decisions, that was not something

taken into account in the sentencing process. It had been the company's legal duty to take

care to ensure that safe systems of work were not merely nominally in place but were being

followed on a day to day basis.

[10]

The sheriff then considered the size and financial strength of the appellant

company's business, as required by the English guidelines. He concluded that Linbrooke's

annual turnover exceeded £50 million over the 3 year period ending March 2019, 2020,

and 2021, although he now accepts that the figure was marginally below £50 million

However, he had also been provided with draft accounts for the year ending 31 March 2022

which remained in draft form only because the outcome of these proceedings required to be

incorporated into them. The draft showed a projected annual turnover of £60.6 million for

the year ending March 2022. Positive remarks from the directors in their strategic report

were noted. Taking account of the draft produced an average annual turnover over the four

year period in excess of £52 million. The sheriff categorised Linbrooke as a large company,

albeit at the lower end of that category. He considered that the guidelines pointed him

towards a range of fines between £300,000 and £1.5 million with a suggested starting point

of £600,000. He indicated that his starting point would be at the upper end of the range and

fixed that at £1 million. There were no aggravating factors to increase the fine from that

starting point but there were a number of mitigating factors. These included the absence of

any previous convictions and an exemplary health and safety record by the company until

Mr Mason's death; the company's philosophy and aim of assisting former armed forces

personnel to return to civilian life and acquire a trade, which had met with considerable

success; the genuine and ongoing distress at all levels of the company in relation to

Mr Mason's death; the steps taken immediately by the company to avoid any repetition of

the accident; and the full cooperation with the investigating agencies. In light of those

mitigating factors and the whole circumstances the sheriff reduced the penalty to £750,000.

It was largely because of submissions made by both Crown and defence that the financial

penalty imposed was likely to complicate the pursuit of civil claims arising from the

accident that the sheriff decided to divide the sum into the two parts mentioned above.

Submissions for the appellant

[11]

On behalf of the appellant, senior counsel made clear at the outset that, should the

appeal succeed to any extent, the company would not wish any reduction to be made to the

compensation order of £200,000 to be paid to the parents of the deceased. While it was a

matter for the court, the company was keen that the payment to the family would not be

eroded. There were three main issues raised in argument. First, it was contended that the

deceased's contribution to the accident ought in the particular circumstances of this case to

be taken into account. Secondly, the assessment of the appellant company as a large one for

the purposes of the English guideline was challenged. Thirdly, the sheriff had wrongly

increased his final harm assessment by twice taking into account that death resulted in this

case, rather than at a single stage of the exercise.

[12]

On the first matter of the deceased's contribution, it was submitted that Mr Mason

had attached the "Fish" wire to the cable in a wholly inappropriate manner, presumably

because it was quicker. If he had attached the wire to the cable correctly the amount of

weight that could have been sustained would have been 80kg but because of the way he

performed the task it could sustain only 15kg. The process he used for unreeling a stretch of

cable was unauthorised and a device had been available that he could have used. It was the

deceased's use of a piece of conduit by holding it up almost "like a weight lifter", that

rendered the whole process within range of the lethal obstacle that Mr Mason himself had

placed inside the barrier area at the foot of the ladder. While it was acknowledged that it

would be rare for the individual's fault to be taken into account in a case of this sort, in the

particular circumstances of this case Linbrooke could not reasonably have foreseen that

Mr Mason would behave in the way he did. Accordingly, the court should, unusually, take

this matter into account. In doing so, the court should view the available footage and

various animations prepared for the company and played to the jury.

[13]

In relation to the size of the company and its relationship with the fine imposed,

counsel submitted that, even if Linbrooke could, strictly speaking, be categorised as a large

company, it was a comparatively small competitor in a field where the other players were

many times larger. The sheriff had accordingly reached a conclusion about the company's

financial circumstances and ability to pay a fine in a way that was disproportionate. Three

recent decisions to support this point were referred to. First, was a decision published by

COPFS on 9 May 2023 in relation to the Fife based company Mowi Scotland Limited.

Following a plea of guilty to health and safety breaches at Inverness Sheriff Court on that

date arising from a fatal accident at a fish farm, the company had been fined £800,000. The

salmon farming company involved was a very large one. Secondly, in the case of HMA v R J

McLeod a sheriff at Glasgow had fined that company £800,000 on 14 April 2023 after the

company had failed suitably to assess the risks of unauthorised persons gaining access to a

construction site. This had resulted in children making their way through insecure fencing

into the construction site, one of whom died from drowning in flowing water at the foot of a

manhole. The company had pled guilty to failing to take measures to control the risk of

children gaining access to the site. The company involved in that case had a turnover of

about four or five times that of the appellant company. Finally, reference was made to a

news report involving the energy firm BP which was fined £650,000 after a worker died

when he plunged from an offshore platform into the sea. On 19 July 2023 a sheriff in

Aberdeen had imposed the fine stating that, while it had been an isolated incident of the

company failing to have suitable control measures in place for open gratings on a north sea

platform, given that a man had died the fine on a profitable company such as BP required to

have "some economic impact".

[14]

Senior counsel submitted that these decisions supported a contention that, while

each case required to be carefully considered on its own facts, the sheriff had erred in

considering it proportionate to impose a fine of £750,000 on a much smaller company than

those involved in those decisions. The appellant was a railway engineering company

formed by two individuals with admirable intentions. It was not in the same category as the

companies referred to and was only very technically in the "large" category referred to in

the English guideline. There was said to be a relationship between the chronology of the

case, which had involved the postponement of a number of trial diets and the financial

circumstances of the company. Had the case been brought to trial on the original intended

dates, the company's draft accounts for 2022 would neither have been relevant nor

applicable. The average turnover for the previous three years would have resulted in the

appellants being categorised as a medium company, albeit at the higher end of that category.

[15]

The third and final contention was that the sheriff double counted Mr Mason's death.

The sheriff's approach and his application of the English sentencing guideline was not open

to criticism in relation to his assessment of culpability as medium and the risk of harm as

level A with a medium likelihood of harm, resulting in a harm assessment of category 2.

However in selecting the figure of £1 million as a starting point, before reductions for

mitigation, the sheriff stated that he sought to distinguish between cases in which a fatality

had occurred and non-fatal cases. In his sentencing statement he recorded that it was

because such a difference should be drawn that his starting point was towards the upper

end of the range. He had moved up from the starting point in the range by 66% purely

because a fatality had resulted. However the distinction between fatal and non-fatal cases

had already been factored into the calculation at the stage of judging the seriousness of the

harm risked and the assessment at level A under reference to the English sentencing

guideline. The sheriff had accordingly fallen into error by revisiting the issue to increase the

starting point by the amount he did. This was particularly the case given that the appellant

company was very much on the margin between "large" and "medium" for the purposes of

the guideline. By ignoring the contribution of the employee, treating the appellant company

as if it was of a much greater size and failing to recognise that the death had already been

taken into account, the sheriff had imposed a level of fine far beyond what was

proportionate.

[16]

The appellant company continued to acknowledge that the incident had resulted in

the terrible death of a very young man. It had built "Mason's wall" in his memory and had

made substantial contractual death in service payments. It was noteworthy that the

company continued to enjoy good relations with the deceased's family.

Decision

[17]

The court has given careful consideration to the submissions made and has viewed

the CCTV and animated footage of the incident and the working practices under scrutiny.

We have concluded that this is not the type of exceptional case in which the employee's

actions should have a bearing on the level of financial penalty. While Mr Mason was a time

served electrician he was only 20 years old. He was working with colleagues. He appears to

have adopted an improvised method of reeling the stretch of cable with which he was

working. However, the accident happened because he fell from a ladder. The appellant

company was found guilty of charges that reflected their failure to assess the dangers of

employees carrying out such work at height and using improvised methods. The second

and third charges narrate the failures of supervision, of taking steps to prevent a fall from

height and of providing suitable and safe work equipment. It cannot be said that the

accident was not reasonably foreseeable in light of those failures; on the contrary

Mr Mason's accident was a consequence of them. Accordingly, we reject the first of the

arguments presented on behalf of the appellant.

[18]

As to the second of the three arguments, we consider that the sheriff was correct to

categorise the company as a large one for the purpose of gaining assistance from the English

Guideline to check the broad range of fines that might be appropriate. The circumstances in

which there were delays to the trial did not justify the exclusion of the most up to date

material available in assessing the company's turnover. Two of the trial postponements

were granted on joint motion of the Crown and defence. In any event, the difference

between the turnover of the company in the years prior to 2022 and the draft accounts for

that year was not so significant as to alter the broad range of fines that might have been

appropriate in this case. The English Guidelines are not to be applied mechanistically

(Scottish Power Generation Limited v HM Advocate 2017 JC 85, at paragraphs 35-37) and

categorising the company as a large one was only one part in an exercise that has several

steps, including standing back and considering the whole circumstances. In any event, as

the sheriff explains in his report, the relevant accounts of the company for the three year

period ending 31 March 2021 suggest an average annual turnover of £49.9 million. While

that figure is just under the £50 million figure that would, if the English Guideline is used,

take the company into the large category, the draft accounts to 31 March 2022 illustrate that

turnover had risen to £60.6 million. We bear in mind that the purpose of taking account of a

company's financial position is to ensure that the level of fine meets, in a fair and

proportionate way, the objectives of punishment, deterrence and the removal of gain

derived thought the commission of the offence. As the English Guideline puts it, the fine

must be:

"sufficiently substantial to have a real economic impact which will bring home to

both management and shareholders the need to comply with health and safety

legislation."

In the present case, the size and financial circumstances of the company were such as to

merit a very significant fine to meet the sentencing purposes and the sheriff did not err in

looking at the range of figures he did.

[19]

That said, we consider that there is merit in the third argument advanced by senior

counsel on behalf of the company. The tragic consequences of the company's health and

safety legislation breaches were taken into account by the sheriff, quite properly, at the stage

of assessing the seriousness and likelihood of harm. The established fact that the offences

were a significant cause of actual harm were factored in at an early stage of the process of

assessment. Thereafter, having categorised the company as a large one in light of its

turnover to identify the range of possible fines and the starting point within that of £600,000,

the sheriff sentencing statement records that:

"Given that the range encompasses a wide spectrum and that a difference must be

drawn between non-fatal and fatal cases, my starting point is towards the upper end

of the range"

as the explanation for the starting point of £1 million (reduced from a possible £1.2 million

give that the company was only just in the large company category). We have concluded

that the selection of a figure so much higher than the starting point for a large company

would justify does appear to include an element of double counting of the fact that death

occurred. In any event, it has resulted in a final outcome that appears disproportionate in all

the circumstances.

[20]

While each case must inevitably turn on its own facts, we note that in the R J Macleod

case, Sheriff Jackson KC was careful not to take the tragedy of a child's death into account

twice, albeit in the context of considering whether there were aggravating factors. In many

of the cases in this area, including some of those to which we were referred, a company

accepts responsibility for a death and pleads guilty at the earliest opportunity. While that

did not occur in the present case, that is reflected in the absence of a discount once the

penalty has been fixed. In the present case, there were a number of mitigating factors, all of

which were correctly taken into account by the sheriff. But for the reasons given, the starting

point was too high and we have decided that we ought to remedy that by quashing the

sentence and substituting a lower figure.

[21]

With the exception of this single error, the sheriff's approach to assessing the

appropriate financial penalty was sound. Using the principles summarised in Scottish Sea

Farms Ltd v HM Advocate 2012 SLT 299 at paragraph 18 and using the relevant English

guidelines as a cross check, we consider that the total financial penalty would have

been £800,000, had it not been for the mitigating factors. Taking those into account, we

reduce the total to £600,000. We acknowledge the company's wish that the family receive

the compensation ordered. Accordingly, we will not interfere with the Compensation Order

of £200,000 but we will quash the fine of £550,000 and in its place impose a fine of £400,000.

The appeal is allowed to that extent.

Scottish High Court of Justiciary Decisons