Scottish Hazards, along with trade unions and campaigning lawyer Patrick McGuire from Thompsons have always said that families affected by workplace deaths are being denied justice.
Far too many people have lost their lives because of work, leaving families devastated and feeling cheated by laws that value the lives of someone killed by work less than that of those who are victims of other acts of involuntary killing.
Two cases serve as an example of how the law treats deaths caused by work and how Scots Common Law can be applied in one area of UK regulation and not in another.
On 26 July 2012, Gary Currie fell 30m to his death while working on a cherry picker. His colleague who was operating the machine survived but was severely injured. The machine in question had been involved in a previous incident when the boom had failed on 17 May the previous year and, as the jury trial was to hear, the maintenance and repairs to the machine and the behaviour of those responsible for his health and safety led to his death.
In sentencing the company, Sheriff Petra Collins said that Craig Services and Access Limited had a duty of care to ensure their workers were not placed at risk of serious injury or death and to ensure that the equipment they were using was kept adequately maintained.
Following a unanimous verdict it was found that Craig Services breached these duties and the Sheriff added “In all three of those duties Craig Services’ attitude to safety was cavalier”. She also said of Company Director, Donald Craig, who was on trial for the same offences, that: “on the evidence at the heart of every decision made in relation to the cherry picker, [he] shares that guilt”.
When she addressed the issue of sentencing, Sheriff Collins said
“I should emphasise that I have to sentence the companies and Mr Craig for breaches of health and safety law. The sentences I am about to impose cannot and do not attempt to reflect the enormity of Mr Currie’s death, nor the suffering of his loved ones. My powers of sentence are constrained by statute, but also appear constrained by the current status of both companies”.
She also said that Donald Craig’s failures were so serious that she had no alternative but to impose a custodial sentence of two years, the maximum allowed for breaches of statutory health and safety offences.
Road traffic laws are reserved to Westminster, in the same way as health and safety laws.
However, when involuntary deaths involving motor vehicles are examined, there have been cases where drivers who cause deaths are not charged with causing death by reckless driving; they are prosecuted, convicted, and imprisoned for culpable homicide.
This was the case involving the death of four-year-old Olivia Donachie in Edinburgh on 30 May 2007.
Daniel Jackson was sentenced to 13 years (after 3 years were discounted because of his guilty plea) for killing Olivia Donachie while driving an unsafe car and under the influence of drugs.
Lord Menzies, in his sentencing statement succinctly explains the crime of culpable homicide as encompassing “…a range of behaviour with a wide variety of degrees of culpability, from a single shove or punch which may inadvertently result in death, to much more serious and culpable behaviour”. Adding that he regarded this case as being towards the most serious end of the scale, and few would disagree with Lord Menzies.
But what about the individual in the first case?
The sentencing sheriff read out a litany of failures in her statement including the fact that, at a point, the cherry picker was an “accident waiting to happen”. A phrase heard all too heartbreakingly often by loved ones who lose a loved one in a work-related incident.
Where a company director knows, or ought to have known, that there was a risk to life as a result of their actions or inactions, is this not at least equivalent to the single shove or punch that inadvertently results in death, the kind of actions Lord Menzies referred to as being at the lower end of the scale culpable homicide behaviours?
We say yes, at the very least, it is, and that is why Claire Baker’s Bill is so important.
All behaviours that lead inadvertently to deaths should be capable of prosecution under the Common Law offence of culpable homicide, allowing our Courts to determine the level of culpability and Judges to apply suitable sanctions.