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    H&S PROSECUTION SYSTEM IN SCOTLAND SPARES WITNESSES

    Scotland united in praising success of new procedures for safety prosecutions  

    The Solicitor General for Scotland, Frank Mulholland QC, has announced that victims and witnesses are being spared the need to give evidence thanks to the earlier resolution of cases by the COPFS Health & Safety Division.

    The Division deals with all health and safety prosecutions and also those cases requiring specialist health and safety input on inquiry issues. More straightforward Fatal Accident Inquiries may be dealt with by local Procurator Fiscal Offices.

    System has reduced trials and further distress

    Statistics for the Division covering the the first year of operation show that more than 20 cases resolved without the need for trials by securing early guilty pleas from the accused.

    There are three dedicated units based in Aberdeen, Edinburgh and Glasgow anf the Division is led by senior prosecutor Elaine Taylor with 16 staff working closely with the HSE, local authorities and other agencies who report health and safety cases to COPFS.

    Elaine Taylor, Head of the Health and Safety Division, said:

    “Sadly, most of the cases with which our Division deal involve the loss of life or serious injury arising from incidents in workplaces in Scotland.

    The early resolution of these cases by way of plea has spared families and victims from what can be a very distressing and traumatic experience of reliving these events through lengthy court process. It has also freed up the courts’ time and reduced costs involved in potentially lengthy trial proceedings.

    The dedicated member of staff from our Victim Information and Advice (VIA) service plays a vital role in working with the team to communicate with victims and families during what are often lengthy investigations and inquiries.”

    Dr Paul Stollard, HSE Director, Scotland said:

    “We have valued being able to work with them to ensure that those responsible for death and injury in Scotland’s workplaces have been held to account, and we look forward to further building on the relationship between HSE and the COPFS Health and Safety Division over the coming year.”

    Ian Tasker, STUC Assistant Secretary said:

    “The STUC welcomed the formation of the new division as we feel it is vitally important that health and safety cases are prosecuted effectively and quickly. One of the positive messages we are picking up from bereaved families is the improved communication between families and prosecutors; one of the main complaints families raised with us before the division was formed.

    Comment

    The time taken to conclude legal proceedings arising from work related deaths is often in excess of five years. Steps to reduce this time will be applauded by all involved and in particular witnesses and relatives of the deceased.

    Most of the case studies below concern legal proceedings arising from non-fatal incidents. The real test of success will be how quickly cases involving fatalities are resolved post establishment of the special Division. This development in Scotland may then have lessons for the rest of GB.

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    CASE STUDIES

    1.Case Studies1. Belcher Food Products Ltd – AY09001967

    The charge relates to dates between 26 March 2008 and 25 June 2008 at Belcher Foods Limited Glenburn Road, Prestwick, Ayrshire, KA9 2NS .

    Employee Steven Glass attempted to repair an Endoline tape machine when it was not isolated from all sources of power and his hand became entangled in a chain.

    Mr Glass lost two fingers and the tip of a third. His little finger was re-attached to his wedding finger and he will have to undergo at least two further surgeries in order to increase movement in his wedding finger as the tendons have no movement at all.

    He no longer works for the company as he could not face returning to work there and is now employed by a supermarket.

    At Ayr Sheriff Court in July 2009 Belcher Foods were fined £30,000 after pleading guilty on Indictment by accelerated procedure.

    2. Superglass Insulation Ltd – ST09001599

    On 10 September 2008 at premises in Thistle Industrial Estate, Kerse Road, Stirling Superglass Insulation Limited failed to ensure the health, safety and welfare of all employees by failing to provide a safe system of work to protect its employees from falling from height when engaged in the maintenance of the Huber screw within the effluent plant dewatering area there.

    As a result of said failure, Fraser Adams fell 3.35 metres from an open edge to his injury.

    He was initially taken to the workshop at the site to await first aid treatment and was then taken to Stirling Royal Infirmary where he was treated for cuts to the right hand side of his eye and cheek. He had five stitches inserted into the cut above his eye and the cut to his cheek was glued with surgical glue.

    He was advised that he had suffered soft tissue damage and should take painkillers. He had also sustained grazing to his leg and ligament damage to his left arm. He re-attended at his GP on a few occasions over the forthcoming weeks and was off work for 5 and a half weeks at which point he went back to do light duties.

    Stirling Sheriff Court on 8 October 2009 Superglass were fined £20,000 after pleading guilty on Indictment by accelerated procedure.

    3. Marriott Hotels – ED08026842

    Marriott Hotels Limited runs the Marriott Dalmahoy Hotel and Country Club Kirknewton, Edinburgh which is the locus of the offence, and was the employer of Dahlia Chaudhary who was burned when handling a coffee urn. The coffee in the urn was being kept warm from below by a liquid fuel known as chafing fuel which was situated on a stand below the urn.

    On 23 March 2008, whilst re-filling the urn, she attempted to separate the urn from its stand, being unaware that lit chafing fuel was present in the stand. The lit chafing fuel spilled on to her legs causing her clothing to catch fire, and as a result she sustained burn injuries on both legs, all to her severe injury, impairment and permanent disfigurement

    As a result of the accident she was severely burned and permanently scarred. The present level of scarring is believed to be relatively modest, and is located around her feet and ankles. However, due to cultural differences scarring of this sort is a very major blight on the life of Miss Chaudhary.

    At Edinburgh Sheriff Court on 25 November 2009 Marriot were fined £20,000 reduced from £30,000 after pleading guilty on indictment to a contravention of Section 2 of the Health and Safety at Work etc. Act 1974.

    4. Dundee Leisure – DN08008386

    Death of Luke Hutton

    At Dundee Sheriff Court, Dundee Leisure on 17 November 2009 were fined £40,000 after pleading guilty to a contravention of the Health & Safety at Work Act 1974 following the death of 7-year-old Luke Hutton at the city’s Olympia Leisure Centre in September 2007.

    Dundee Leisure pled guilty to a breach of Section 3 of the Health and Safety at Work etc Act 1974 by failing to conduct their undertaking in such a way to ensure that persons not in their employment were not exposed to risks to their health and safety by failing to ensure that lifeguards were adequately trained to ensure that every part of the wave pool was supervised and failing to ensure that there was system in place whereby lifeguards could properly and adequately supervise those using the wave pool.

    5. Blairish Restorations Ltd – PR09002173

    The offences occurred between March and July 2008 at Findynate House, a late 19th century 3-storey Scottish Baronial mansion on the Findynate Estate during a project to restore the property.

    It involved a wide variety of tradesmen – painters and decorators, carpenters, slaters and labourers. The workforce was a mixture of Blairish employees, self-employed tradesman and subcontractors. It included a number of different nationalities – UK nationals, Romanians, Poles, Hungarians and Moldavians.

    From around May 2008, lead paint was removed from the windows, window frames, doors, skirting boards, wooden panelling and plaster wall surfaces. The extent to which the surfaces were sanded back also appears to have depended on the individual worker.

    For a large part of the project, there was only cold running water from a tap in the basement, making it difficult for workers to properly clean their hands before breaks. No instructions were given on the need to wash hands prior to eating, drinking or smoking.

    The result was a number of workers being hospitalised with lead poisoning.

    Blairish Restorations Limited pled guilty at Perth Sheriff Court on 16 March 2010 and was fined £10,000, reduced from £15,000 on summary complaint.

    6. John Hogarth Limited – JE08002304

    On 28 February 2008, your then employee Bing Winston Spencer Neil, whilst attempting to clean a rotary valve at height, lost his balance and his right arm became entangled in the exposed rotating rotor blades and was severed between the wrist and elbow, all to his severe injury, permanent disfigurement and permanent impairment.

    Practically, the loss of his right arm below the elbow has had a severe impact on Mr Neil’s life. He can no longer drive and states that he cannot cope with day to day things such as peeling an orange or buttoning a shirt. He used to be a keen DIY enthusiast and is still learning to write with his left hand.

    On 29 July 2010 John Hogarth Ltd pled guilty to a contravention of the Health and Safety at Work etc Act 1974 Sections 2 and 33(1)(a) and was fined £16,750 (reduced from £25,000 to take account of the company’s guilty plea) at Jedburgh Sheriff Court.

    7. Argyll and Bute Council – Death of Duncan MacGillvray DU09000485

    At Dunoon Sheriff Court on 18 August Argyll and Bute Council were fined £20,000 reduced from £30,000 after the accused pled guilty to breaching Section 3(1) of the Health and Safety at Work etc Act 1974 at an earlier hearing on 29 July.

    This related to an incident on 17 September 2007 where 75-year-old Duncan MacGillivray of Dunoon drowned when it is believed that he accidentally put his car into forward gear rather than reverse to exit a parking bay. The vehicle mounted the edging and, as there was no protective barrier, the car fell approximately three metres into the sea below and Mr MacGillivray was trapped.

    There was no assessment of risk for those using the car park, nor had any action been taken to provide adequate edge protection to prevent such incidents.

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