In February 2017 a Sheriff at Airdrie Sheriff Court made comments in a case involving breaches of duty of care that resulted in death and serious injury. The outcome of a 16-day trial resulted in a custodial sentence of two years and associated fines being imposed on a manager and a plant hire firm.
A man was killed and another man was seriously injured when a mobile elevating work platform collapsed and the platform's basket fell 28 metres to the ground. It was discovered that there were associated failures in maintenance and significant health and safety breaches that led to this accident.
The background to the decision
The case was heard at Airdrie Sheriff Court and the Sheriff sentenced the manager of the plant hire company to the maximum sentence of two years imprisonment for breaches of health and safety law. This was on the basis that his company hired out an unsafe cherry picker which buckled, causing this accident.
The company was fined a total of £61,000 for breaching its duty to ensure that those using the cherry picker were not exposed to the risk of injury or death, for failing to maintain the equipment and for hiring it out when it had not been certified as safe. Another firm was also fined £30,000 for breaching their duty and failing to carry out a detailed and thorough examination of the platform and its critical parts.
The accident circumstances
On 20 July 2012 two men were working in the basket of the cherry picker at a height of 28 metres in an operation to remove netting from the façade of Buchanan House in Glasgow. The man who was positioned in the cherry picker was fatally injured and the man operating the cherry picker was seriously injured.
In law, the plant hire company owed a duty of care to ensure that, so far as was reasonably practicable, any operators of the machinery were not exposed to the risk of serious injury or death. Moreover the company was under an absolute duty to maintain the cherry picker in efficient working order and good repair. The company had a duty to ensure the cherry picker was thoroughly inspected at least every six months. It was found that these duties had been breached.
The legal position and outcome
It was the unanimous verdict of the jury that the plant hire company was found guilty of breaching its duty and that the manager of the plant hire company, who was at the heart of every decision made in relation to the cherry picker and its maintenance, shared in that guilt.
Evidence was led that in May 2011 there had been an issue with the cherry picker, the consequences of which could have been catastrophic - the cause of that issue was never fully investigated and the issue was not remedied.
Insufficient and incorrect repair was carried out and by the time the repair was complete the cherry picker was described as an accident waiting to happen. The law requires that after a major repair the cherry picker should not be put back in service until certified as safe to use by a fully qualified person. The defendant company knew this and failed to instruct such sufficient service to allow safe use of the machinery.
The plant hire company then hired out the cherry picker when it had not been certified as safe to use. Evidence was led which showed that the manager lied in terms of repairs and specification of repairs.
Examination of the cherry picker after the fatal accident showed that the machine was in generally poor condition and there was evidence of poor maintenance - safety features on the cherry picker had been deliberately bypassed.
It was found that the manager of the plant hire company did everything he could to push the cherry picker back into service and in doing so his conduct included lying and misleading others. The Sheriff noted that "in doing so (he) gambled with the lives of those using the cherry picker, with fatal consequences". On that basis the Sheriff imposed the maximum custodial sentence of two years imprisonment of the manager.
The implications of this case
This case shows that it is of the utmost importance that companies who hire out machinery take all necessary and reasonable precautions to ensure that the machinery which is hired out is safe and fit for purpose. By the imposition of the maximum custodial sentence, Scottish courts hammered home the message that breaches of health and safety by companies can result in the most serious of consequences for companies and those in their employment.
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