Health and safety failings: behind the corporate veil

The death of Michael McArthur

Kevin Bowie, sole director of Precision Decorating Services (Scotland) Ltd, was ordered to carry out 300 hours of unpaid work and placed under supervision for 18 months after he was found guilty of a breach of reg 4(1) of the 2005 Working at Height Regulations and ss 33(1) and 37(1) of the 1974 Health and Safety at Work Act.

Falkirk Sheriff Court heard that on 27 September 2018, Michael McArthur was working in the basket platform of a cherry picker which was raised to the upper levels of a house to allow him to decorate dormer windows. A tour bus struck the arm of the cherry picker and Mr McArthur was thrown from the basket and fell to the road, sustaining severe injuries from which he later died.

The court found that Bowie had failed to ensure that the work being carried out at height was properly planned, appropriately supervised, and carried out in a manner which was, as far as reasonably practicable, safe. It also found that no suitable measures were in place to segregate the cherry picker effectively from street traffic.

Appeal against conviction rejected

In his appeal to the Sheriff Appeal Court ([2023] SAC (Crim) 2), Bowie conceded that Precision Decorating Services Ltd had failed to comply with reg 4(1) of the 2005 Regulations to ensure that McArthur’s work at height was carried out in a manner that was, so far as reasonably practicable, safe. He also conceded that the company would have been guilty of a breach of s 33 of the Health and Safety Work Act.

Bowie argued, however, that these breaches were attributable to McArthur rather than to him. He characterised McArthur as an expert in operating cherry pickers, and said that the need to segregate the machine from road traffic would only have been apparent to someone who had received the same training that McArthur had undergone.

The court rejected Bowie’s appeal, finding that McArthur was a “young man trained as a ‘novice’ some 18 months previously”. It held that Bowie made the contract that required a cherry picker and hired one for the work; employed McArthur to operate it; and was initially present as the work commenced. Delivering the opinion of the court, Appeal Sheriff Patrick Hughes said that, from the start of the work, it was apparent that there was no measure in place to segregate the cherry picker from traffic, “or indeed to ensure safe working through any other mechanism”.

The appeal sheriff added: “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.” Rejecting Bowie’s appeal, he said: “Company directors in the position of the appellant cannot simply slough off responsibility to their employees.”

Key takeaways from the ruling

In prosecutions under s 37 of the 1974 Act, the court must first establish whether the body corporate of which an accused person is an officer has committed an offence under one of the other provisions in that part of the Act. If this is established, consideration has to be given to the 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.

The question for the Sheriff Appeal Court was whether Bowie should have been put on inquiry, such as to have taken steps to determine whether or not the appropriate safety procedures were in place. Appeal Sheriff Hughes stated: “The more remote the circumstances were from the officer’s control, the harder it 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.”

Liability is attached based on the control, responsibility, or authority that an individual has, not just their title or role. In this case, Bowie was not just the director of Precision Decorating Services Ltd, he also made the contract which required the use of a cherry picker, which in turn led to the hiring of the machine. He engaged a member of staff to operate the cherry picker and was present at the beginning when the work started. The court found that Bowie had control over the matter and that the risk was obvious.

The Appeal Court also stated that the reg 4(1) duties to ensure proper planning and appropriate supervision were both linked to the duty to ensure that the work was carried out in a manner which was, so far as reasonably practicable, safe, and were not separate duties. Here the failures in planning and supervision were relevant factors to consider when assessing whether Bowie’s neglect contributed to the failure by Precision Decorating Services Ltd to ensure that the work was carried out in a manner which was, so far as reasonably practicable, safe.

In this case, the lack of planning by applying for the cherry picker permit demonstrated a negligent mindset. Bowie was at the work site and able to see how McArthur was undertaking the task. Both of these factors amount to breach of duty to ensure the work was carried out in a manner which was, so far as reasonably practicable, safe. The Appeal Court also confirmed that there was “no requirement for the Crown to prove that the failure arising from the appellant’s neglect was the sole or even the main cause of the death. It sufficed if that failure made a significant or material contribution to the death”.

While such prosecutions are less common in Scotland than in England & Wales, this case demonstrates that the prosecuting authorities in Scotland are equally committed to pursue action against responsible individuals. Employers must take note – although in this case the corporate structure was straightforward, the Appeal Court’s findings in relation to day-to-day planning and supervision are just as relevant in more complex cases, as is the message that responsibility cannot be simply abdicated to employees.