Director of decorating company convicted of negligence resulting in employee death loses appeal against conviction

About this case:

• Citation:
  [2023] SAC (Crim) 2
• Judgment:
  External link
• Court:
  Sheriff Appeal Court
• Judge:
  Appeal Sheriff P Hughes

Kevin Bowie was convicted after an eight-day trial of an offence under the Health and Safety at Work etc Act 1974. It was his position that the sheriff was not entitled on the evidence to be satisfied that the death of Michael McArthur, aged 26, was attributable to neglect by him as the sole director of Precision Decorating Services (Scotland) Ltd.

The appeal was heard by Sheriff Principal Nigel Ross, along with Appeal Sheriffs Gillian Wade and Patrick Hughes. Shand, advocate, appeared for the appellant and McKenna, solicitor advocate, for the Crown.

Obvious danger

In 2018, the appellant on behalf of PDS Ltd contracted to prepare and paint windows on the second floor of a house on Balkerach Street, a high street in Doune. To do so, he hired a mobile elevated work platform (MEWP), for which he had previously been given a 15-minute demonstration of how it operated. He also hired Mr McArthur, who had in 2017 completed a novice basic training course in how to operate the MEWP.

On the morning of 27 September 2018, the appellant was present when the MEWP arrived and was parked on the road’s eastbound carriageway, obstructing vehicular traffic. No attempt was made to segregate the MEWP from traffic or to control traffic around it. At around 10:23am, after the appellant had left, part of the MEWP’s arm was hit by the rear-view mirror of a single-deck bus. The collision caused Mr McArthur to fall out of the basket at a height of around 6.12 metres above ground, sustaining fatal injuries. He had not been wearing a safety harness or hard hat whilst working.

Counsel for the appellant submitted on appeal that the terms of the charge had referred only to the failure to ensure segregation from traffic and consequently fair notice was not given of other elements which the sheriff found to additionally constitute the failure. His position was that, as he was not expert in the use of MEWPs, he had delegated the task to the deceased in the reasonable belief that he was qualified to operate one.

For the Crown the advocate depute submitted that the sheriff’s conclusions were clearly supported by the evidence heard at trial. The danger presented by the circumstances of the MEWP’s operation had been obvious at the time, and the sheriff had been entitled to form his own assessment of that danger from photographs lodged in evidence. Further, every act of PDS had been under the appellant’s control, and there was ample evidence from which to infer neglect on his part.

Slough off responsibility

Delivering the opinion of the court, Appeal Sheriff Hughes observed: “The first matter to be established is whether the body corporate of which an accused person is an officer has committed an offence under one of the other provisions in [the 1974 Act]. If so, consideration must then be given to the accused officer’s state of mind, and to whether the body corporate committed the offence with that officer’s consent or connivance, or its commission was attributable to any neglect on the officer’s part.”

He continued: “The question is whether the accused officer should have been put on inquiry, so as to have taken steps to determine whether or not the appropriate safety procedures were in place. The more remote the circumstances were from the officer’s control, the harder it will be will be to infer consent, connivance or neglect on the officer’s part. Conversely, if those circumstances were under the direction or control of the officer - particularly where he was in day to day contact with what was done - relatively little evidence will be required to draw that inference.”

Assessing who the failure was attributable to in this case, the Appeal Sheriff said: “The evidence before the sheriff was eloquent of the circumstances giving rise to the risk being under the control and direction of the appellant. He was the company’s sole director; made the contract which necessitated the use of the MEWP; hired the MEWP; engaged the deceased to operate it; and was initially present as the work commenced, at which point it was apparent that no measure to segregate the MEWP from traffic – or indeed to ensure safe working through any other mechanism - was in place.”

He went on to say: “The risk was obvious, the circumstances were known to and under the control of the appellant, and the sheriff was justified in finding that the company’s failure to comply with its duty was attributable to the appellant’s neglect. For the purposes of Section 37 HSWA, any degree of attributability will suffice. Company directors in the position of the appellant cannot simply slough off responsibility to their employees.”

Appeal Sheriff Hughes concluded: “The charge libels only a single day, but the neglect being prosecuted is not the failure to apply for a permit prior to that day, but allowing the work to proceed on that day in an unsafe manner. The lack of permit is simply one piece of evidence showing the appellant’s negligent mindset. In terms of supervision, the appellant was present at the locus on the day in question and saw how the deceased was proceeding with the task in an unsafe manner in the absence of segregation, yet did not intervene.”

The appeal against conviction was therefore refused.