In Linbrooke Services Ltd v HM Advocate, a company appealed against the sheriff's imposition of a fine of £750,000 for breaches of the Health and Safety at Work etc. Act 1974, Management of Health and Safety at Work Regulations SI 1999/3242, and the Work at Height Regulations SI 2005/735, following the death of its electrician when he fell from a step ladder.
The appellant had been installing public address systems in railway stations which involved running cable through metal conduits, often at a height of three metres or thereby. The appellant's employees working on site were expected to follow instructions contained in a task briefing sheet given to them shortly before work commenced, which the deceased had seen. It did not mention the required work at height.
From the CCTV evidence, the method used by the deceased did not comply with approved cable dispensing methods, but no system was in place to prevent improvised methods from being adopted. At a site visit on 4 June 2018, it was discovered that the step ladder which had been provided was too short. A taller step ladder was requested and supplied, but no risk assessment was carried out. On 5 June the deceased was seen on the CCTV climbing high up the step ladder and pulling the cable. There appeared to be a sudden loss of resistance, and he fell. The cable had been incorrectly attached by insulating tape and it had detached, causing the loss of resistance.
The sheriff followed the Scottish Sentencing Council sentencing process guideline and used the 2015 English Sentencing Council's Definitive Guideline on sentencing in health and safety matters as a cross-check. He concluded that the appellant's level of culpability was medium. There was no deliberate breach on its part and no flagrant disregard for the law. However, it was critical that the task briefing sheet had failed to alert employees to the risks involved and the need to ensure the correct equipment would be used in the correct manner.
He considered that the seriousness of the harm risked, from falling from the top of a tall ladder, ought to 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. The sheriff considered the appellant's size and financial strength, as required by the English guideline. He concluded that given the evidence of an average annual turnover in excess of £52 million, the appellant ought to be categorised as large.
The English guideline pointed him towards a range of fines between £300,000 and £1.5 million, with a suggested starting point of £600,000. He fixed a starting point of £1 million. The sheriff considered that there were no aggravating factors but there were a number of mitigating factors, including the:
He reduced the penalty to £750,000 which he divided into two parts. Compensation to the parents of the deceased of £200,000, and the appellant's fine of £550,000. The appellant made clear at the outset that, should the appeal succeed to any extent, it would not wish any reduction to be made to the compensation order.
The High Court of Justiciary concluded that the case was not exceptional in which the employee's actions ought to have a bearing on the level of financial penalty. The accident happened because the deceased fell from a ladder. The appellant was found guilty of charges that reflected its failure to:
"It cannot be said that the accident was not reasonably foreseeable in light of those failures".
The High Court of Justiciary agreed that the sheriff was correct to categorise the appellant as large for the purpose of gaining assistance from the English guideline to check the broad range of fines that might be appropriate. Categorising the company as large was only one part in an exercise that had several steps, including standing back and considering the whole circumstances. In any event, the appellant's relevant accounts for the three-year period ending on 31 March 2021 suggested an average annual turnover of £49.9 million, which would, using the English guideline, take the appellant into the large category. The draft accounts to 31 March 2022 illustrated that turnover had risen to £60.6 million.
"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".
The High Court of Justiciary observed that the sheriff's selection of a figure so much higher than the starting point for a large company would justify, appeared to include an element of double counting of the fact that death occurred. It had resulted in a final outcome that appeared disproportionate in all the circumstances. There were a number of mitigating factors which were correctly taken into account by the sheriff, but the starting point was too high and the sentence would be quashed and a lower figure substituted. The sheriff's approach to assessing the appropriate financial penalty was otherwise sound. Using principles in case law and the relevant English guideline as a cross-check, the total financial penalty would have been £800,000 had it not been for mitigating factors. Taking those into account, the total would be reduced 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 was allowed to that extent.
