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Company allowed to seek health and safety fine recovery from adviser
A company fined after an employee was killed in an accident at work has pleaded a relevant case to recover the money from its health and safety adviser, despite a plea that the company's criminal act barred recovery, a judge has ruled.
Lord Tyre in the Court of Session allowed proof before answer in an action by D Geddes (Contractors) Ltd against Neil Johnson Health & Safety Services Ltd, for recovery of £200,000, the level of fine imposed after the pursuers pleaded guilty to a breach of the Quarries Regulations 1999 by failing to ensure the safety of their employees. A tipper driver had been killed when he reversed over an edge. A stop block, or bund, whose purpose was to prevent such an incident, had become ineffective due to a combination of insufficient height and a buildup of sand and gravel against it creating a ramp.
The pursuers averred that the defenders, whose duties included regular inspections of the quarry and supplying inspection reports, had been negligent in failing to advise of the danger posed by the bund; had they done so, the pursuers would have taken remedial steps before the accident and resultant prosecution. The defenders averred negligence on the part of the pursuers, but also pled as a preliminary issue that the pursuers were not entitled to recover as damages a penalty imposed for their own criminal act.
It was argued for the defenders that compensation was not recoverable for damage that flowed from a punishment lawfully imposed as a consequence of one’s own unlawful act, the policy justification being to avoid inconsistency between the criminal and civil law. The fine reflected the pursuer’s culpability after taking account of any mitigating factors, and it would undermine the intention of Parliament if a person with statutory responsibility could escape punishment by passing the buck to another. There was no exception for strict liability cases.
Lord Tyre said there did not appear to be any Scottish case directly in point, but English and other cases suggested the rule against recovery was not an absolute one. The House of Lords decision in Gray v Thames Trains Ltd (2009) "appears to me to support rather than cast doubt upon the proposition that responsibility for commission of the offence, rather than the nature of the loss claimed, is the most important factor to be considered".
Although in some cases the courts had placed emphasis on the need to avoid inconsistency between the criminal and civil law, "these observations were made in the context of a claimant who was, or was at least presumed to have been, aware of what he was doing when he committed the offence. When one is considering the position of a person with no such awareness but who has nevertheless been punished for commission of an offence, it seems to me that a different balancing of policy considerations is required".
The pursuers therefore had a relevant case, but the defenders' case of fault and breach of duty should also go to proof.
Click here to view the opinion.