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HMA v Scottish Water
Aug 18, 2020
On sentencing, Sheriff Fife made the following statement in court:
“On 11 August 2020 Scottish Water pled guilty to a Section 76 indictment for a contravention of Regulation 3(1)(a) of the Management of Health and Safety at Work Regulations 1999 and Section 2(1) of the Health and Safety at Work Act 1974.
There was an agreed narrative. While the primary focus was on an incident on 9 June 2017, the libel of the charge covered “various occasions between 1 January 2007 and 9 June 2017”, a period spanning over 10 years.
In summary, on 9 June 2017 an employee James Anderson was attempting to regulate water flow within the screen well area of the Prestonpans Pumping Station when he fell through an insecure floor into a storm channel below, to his severe injury, permanent disfigurement, permanent impairment and the danger of his life.
An HSE investigation found there was an unfixed floor which had become dislodged by floodwaters, leaving gapping and creating an unsafe working environment.
The narrative stated:
“The custom and practice that had existed for many years was simply to work around the gaps in the floor until they could be recovered and refitted. There was no safe system of work and no risk assessment. It was readily foreseeable that someone would eventually fall.
Scottish Water was aware that the floorboards in the pre-screen well area had lifted during flooding over the previous 10 years. Replacement flooring had been fitted in the pre-screen well area in March 2017 but not in the post-screen well area where the incident occurred… There were no fall restraint/arrest attachment points in the screen well area…
Scottish Water had a generic risk assessment template, which applied to all plants. There was no risk assessment specific to Prestonpans for the task of recovery of dislodged floorboards. HSE could not find any evidence that any review had been carried out for the tasks undertaken at Prestonpans and that the necessary control measures had been selected and put in place.”
Injuries to Mr Anderson
Mr Anderson sustained a broken back, broken left collarbone, broken left ribs, swelling and bruising over the whole body and a laceration of approximately 3”-4” on the head, above the left ear.
Mr Anderson was in intensive care at Edinburgh Royal Infirmary for about 10 days before being transferred to the Western General Infirmary where he remained for about three weeks.
Mr Anderson underwent multiple operations on his head, the wound twice becoming infected due to the bacterial build-up from the sewage he fell into, and to his back. A number of metal rods and pins were inserted into his spine. He was off work for about nine months, with a phased return to work in February 2018.
Mr Anderson continued to have stiffness to his back and shoulder, which he treated with analgesia and physio approved exercises.
Plea in mitigation
Mr Peter Gray QC represented Scottish Water. I was helpfully provided with a written plea in mitigation, supplemented by submissions on financial penalty.
Senior Counsel highlighted various mitigating factors, including the following:
• The organisation was set up in 2002 and employed approximately 4,000 people, operating throughout Scotland, and managing approximately 10,000 assets;
• The organisation was a thoroughly responsible and conscientious organisation, recognised with accreditation awards on a number of occasions in recent years by the Royal Society for the Prevention of Accidents (“ROSPA”);
• The organisation had no hesitation in admitting responsibility for their failings, and had tendered a plea of guilty at the earliest opportunity by way of a Section 76 indictment;
• The civil claim for Mr Anderson had been settled some time ago;
• A number of senior representatives would have been present at court but for the Covid 19 restrictions;
• The failings did not occur as a result of a deliberate breach, but as a result of an honest oversight in relation to one activity, at one pumping station;
• The Health and Safety function of the organisation consisted of a team of 30;
• The organisation had in place an integrated safe system of work (“ISSOW”);
• There was a structured system of safety committees to maintain effective communication, consultation and engagement processes for improving health and safety;
• Since 2002 there had been in excess of a tenfold reduction in the number of reportable accidents under RIDDOR (the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations), and in days lost due to injury;
• The organisation had no analogous previous convictions.
Action post incident
Senior Counsel identified steps taken including:
• The area was immediately barriered off;
• Panels were replaced by specialist external contractors;
• Fall arrest attachment points were installed by specialist contractors;
• Refresher training on working at heights was given to employees by toolbox talks and team safety reviews;
• External specialists were engaged to undertake a risk assessment of all aspects of activities undertaken at Prestonpans;
• Over and above that, a root and branch review of all activities where employees may be exposed to risk was ongoing and, in particular, to undertake a fundamental review of site specific risk assessment processes, scheduled to be completed by December 2020;
• The organisation had committed £k x 10s to the review in addition to the cost of the remedial works.
Financial penalty generally
• As stated by the court in Scottish Power Generation v HMA (2017) JC 85 ‘it is important to look at existing Scottish precedent to discover what levels of penalty are appropriate, albeit that this task may involve a cross-check with any relevant guidelines’  and with reference to Geddes v HM Advocate  HCJAC 43;
• The court must first assess the seriousness of the case; the consequences of the breach (especially fatality) being an important consideration. The initial assessment required to be adjusted under reference to any of the aggravating or mitigatory factors noted in Scottish Sea Farms Ltd v HM Advocate 2012 SLT 299… Finally, the financial position of the offender must be taken into account  and with reference to Dundee Cold Stores Ltd v HM Advocate  HCJAC 102, which was a non-fatal case;
• There was a significant difference between a fatal and non-fatal case .
The court should identify a ‘starting point’ prior to a discount for an early plea of guilty .
Seriousness of the case
Consequences of the breach
• It was recognised this was a serious case. The breach covered a period in excess of 10 years. It would be reasonable to say this was an accident waiting to happen.
• It is of note that the Prestonpans Pumping Station was subject to flooding due to its design, and that there was some evidence flooding had occurred over 5 times a year in recent years.
• On each occasion aluminium flooring was lifted out of place when flood levels were significant and had to be fixed and temporarily replaced.
• A section of the flooring was permanently replaced some 3 months prior to the accident to Mr Anderson.
• Despite the regular flooding and work undertaken to replace flooring, no risk assessment was undertaken.
• No explanation was offered as to why no risk assessment was carried out despite opportunities to do so over a 10 year period.
• Employees were working in an environment with sewage and at height. The potential for serious or very serious injury, including fatality, in the event of an accident was obvious.
• Mr Anderson sustained injuries, which included to the danger of his life.
• This was a serious breach of statutory duty.
Aggravating and Mitigatory Factors
• The Crown did not advocate any aggravating factors.
• While not an exhaustive list none of the aggravating factors listed in Scottish Sea Farms Ltd  were applicable in this case.
• All the mitigatory factors listed were applicable:
a. a prompt acceptance of responsibility;
b. high level of co-operation with the investigation;
c. genuine efforts to remedy the defect;
d. good health and safety record;
e. a responsible attitude to health and safety.
• Senior Counsel placed emphasis on the distinction to be made between a company and a public body. A different approach had to be taken to the level of any fine.
• Scottish Water was a public body accountable to the public through the Scottish government, funded by public money. There were no directors or shareholders and no dividends payable.
• In R v Milford Haven Port Authority (2000) CR App R (S) 423, Lord Bingham LJC said at page 433:
“… It would be quite wrong to suggest – and counsel for the port authority does not suggest – that public bodies are immune from appropriate criminal penalties because they have no shareholders and the directors are not in receipt of handsome annual bonuses…
The judge has to consider how any financial penalty will be paid. If a very substantial financial penalty will inhibit the proper performance by a statutory body of the public function that it has been set up to perform that is not something to be disregarded…”
• In R v Southampton University Hospital Trust (2006) EWCA Crim 2971 the Court of Appeal was impressed by the argument that the failures related to one department in a hospital whose general record for care was not impugned. Senior Counsel said that approach should be accepted in the present case where this had been a failure in 1 asset – 1 Pumping Station - out of 10,000 assets covered by the Health and Safety team.
• In an unreported case in 2016, HMA v Lanarkshire Health Board, Sheriff Daniel Kelly QC imposed a fine of £60,000 (discounted from £80,000) following a plea of guilty to a breach of section 3(1) of the Health and Safety at Work Act 1974 following the suicide of a patient under a compulsory treatment order.
• In the sentencing statement the Sheriff said:
“Any fine must bring home to the health board the need to comply with health and safety legislation so that patients in Mr Maguire’s position are adequately protected. The prosecution does differ, however, from the more common ones under this Act in that, while acknowledging that Mr Maguire was unwell at the time, the death did not occur in the course of some other activity but rather at the hands of the deceased himself….
Of considerable significance, there has to be taken into account the impact which a fine will have for a health board in its provision of much needed services. It is this latter factor which leads me to make a substantial reduction in the fine imposed from that which would be applicable to another organisation.”
• That case can be distinguished on the facts, but the comments on reduction of any fine are appropriate to consider.
Sentencing Council: Sentencing Guidelines 2015
• Senior Counsel invited the court to have regard to the general principles to follow in setting a fine for Health & Safety offences, Step Three:
“The level of fine should reflect the extent to which the offender fell below the required standard. The fine should meet, in a fair and proportionate way, the objectives of punishment, deterrence and the removal of gain derived through the commission of the offence; it should not be cheaper to offend than to take the appropriate precautions.
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.”
• The focus was on commercial organisations rather than on public bodies.
• Public bodies are referred to at Step Four:
“Where the fine will fall on public or charitable bodies, the fine should normally be substantially reduced if the offending organisation is able to demonstrate the proposed fine would have a significant impact on the provision of its services.”
While is it appropriate to distinguish the fine to impose on a public body from a commercial company the extent of any reduction will depend on the facts and circumstances of each case.
• Senior Counsel made submissions that the organisation was dependent on government borrowing, that it had to operate within ‘extremely challenging financial constraints, and that the income was never sufficient to meet its statutory obligations’.
• The guideline in Step Four relative to public bodies is in curious terms as the offending organisation would not be able to demonstrate any significant impact of the provision of its services in the absence of knowing what was the proposed fine.
• Senior Counsel said the court should not cross check against the Sentencing Guidelines as that would not be helpful in the present case.
• When asked by the court to do so, Senior Counsel proposed the case would come under category B for seriousness of risk, harm category 3 (medium likelihood) and a large organisation (turnover or equivalent £50 million and over). That would give a starting point of £300,000. It would then be necessary to adjust downwards for all the mitigating factors set out at page 9, and others covered in submission. There would then have to be a substantial reduction for the organisation being a public body, before applying a further reduction, being full credit for the plea of guilty on a section 76 indictment.
As Senior Counsel said there is sparse judicial precedent for similar organisations. On his research all reported cases involving public bodies have been health boards.
Fines imposed in other Health and Safety prosecutions – see the examples in Scottish Power Generation at  –  - are of interest, but do not set any precedent as to the level of fine to be imposed in this case.
I have addressed the seriousness of the offence, the consequences and the mitigating factors which have then to be applied to this organisation, as a public body. I have had regard to all the other facts and circumstances put before the court.
Extracts for the accounts for 2016/2017 – 2018/2019 have been produced. While I was provided with an overview of the financial position of the organisation, I noted that Senior Counsel chose not to address the court at all in relation to the detail of the accounts.
The organisation had revenue of approaching £1.5b in the year 2018/2019 with a net surplus of £68m and net assets of nearly £5.4b. This is a very large organisation. It is difficult to see that in any fine imposed the organisation would be able to demonstrate that would have a significant impact (my emphasis) on the provision of its services.
I do not agree with Senior Counsel that the 2015 Sentencing Guidelines are unhelpful when deciding what fine to impose, particularly in the absence of judicial precedent. The Sentencing Guidelines are useful as a cross check, but not in the making of my decision.
In considering the 2015 Sentencing Guidelines, I would agree with Senior Counsel that the case would come under medium culpability and category B for seriousness of risk, and that the organisation is a large organisation (turnover or equivalent £50 million and over). I do not agree the harm category was 3, medium likelihood.
I have considered the two key factors. The offence exposed a number of workers to the risk of harm, particularly as the offence covered a period of over 10 years. The offence was a significant cause of the actual harm to Mr Anderson. The harm category would be harm category 2, a high likelihood of harm. That would give a starting point of £600,000, and a range of £300,000 - £1,500,000.
After considering what would be an appropriate and proportionate sentence after weighing up all the factors peculiar to the circumstances of this case, I have concluded the headline sentence should be a fine of £210,000. I will then discount the fine by one third to take account of the plea of guilty at a section 76 indictment, namely, a discount of £70,000. I will impose a fine of £140,000.
As a cross check with the 2015 Sentencing Guidelines, the starting point of £600,000 is, in my view, too high. A starting point of £300,000 would be proportionate, which puts the case within harm category 3 and the category proposed by Senior Counsel. The mitigating factors would adjust that downwards to £250,000. I would then make a reduction to reflect the fact that this was a public body, but still a large organisation. That reduction would be £40,000. I would then discount the fine by one third to take account of the plea of guilty at a section 76 indictment, namely, £70,000. That would give a fine of £140,000.”
18 August 2020