An electricity company which was fined £1.75 million for breaching health and safety legislation after a worker was badly burned has had the financial penalty reduced by £550,000 following an appeal.
Scottish Power Generation pled guilty to breaches of sections 2(1) and 33(1)(a) of the Health and Safety at Work Act 1974 at Dunfermline Sheriff Court in May 2016 and was fined £1.75 million, reduced from £2.5m for the early plea, after its employee David Roscoe suffered severe injury, permanent disfigurement and permanent impairment in an incident in October 2013.
However, the High Court of Justiciary Appeal Court quashed the original figure and instead imposed a fine of £1.2m after ruling that the sheriff’s reasoning for selecting £2.5m as a “starting point” was “uncertain”.
The Lord Justice General, Lord Carloway, sitting with Lord Brodie and Lord Bracadale, heard that Mr Roscoe, who was 53 at the time, suffered extensive burns to his lower body and legs and underwent five operations after the accident at Longannet Power Station in Fife.
The incident involved a valve installed in pipework through which pressurised high-temperature steam passed, which had been identified as having a fault in 2009 but was never repaired.
On 12 October 2013 Mr Roscoe, who was unaware of the fault, was conducting routine checks when he noticed steam coming from pipework associated with the valve at the now closed Kincardine energy plant.
He turned the wheel in an attempt to close the valve, but it turned through the closed position to open mode and he was “immediately engulfed in high-pressure high-temperature steam”.
The court was told that Mr Roscoe, who was described as a “good and conscientious employee”, required two skin grafts and was an in-patient for four weeks.
He was medically retired in December 2015 and continues to receive out-patient treatment, including counselling for post traumatic stress disorder.
Previously a keen swimmer, walker and canoeist, his life had been “significantly affected”, as his mobility has been impaired.
He suffered permanent scarring, cannot expose his arms or legs to sunlight and will require to apply emollients for the rest of his life.
The appeal raised the issue of the extent, if any, to which the Scottish courts should have regard to guidelines produced by the Sentencing Council of England and Wales when considering the level of fine which is appropriate in respect of breaches of health and safety regulations by a very large corporation.
Applying the 2015 Guideline, the sheriff stated that the “starting point” for a fine for an offence of “high” culpability with a harm category of “2” was £1.1m, with a range between £550,000 to £2.9m.
He added that had there been no mitigating factors, he would have moved outside the range, which would have been permitted if the offence had been a significant cause of harm, but he considered £2.5m appropriate as a starting point.
However, the appellants submitted four grounds of appeal, one of which was that, having accepted that there were no aggravating factors and that all of the recognised mitigating factors were present, the sheriff’s starting point was “excessive”.
The appeal judges observed that recent Scottish cases showed there was a “significant difference” between cases where the offender was a relatively small company in terms of turnover and was, or is part of, a large corporation.
“Having regard to these cases, and recognising also the significant difference between fatal and non-fatal cases, this court would have been considering a starting point (before any discount for an early plea of guilty) of about £1.5m in this case. That has regard to the serious nature of the breach, which the court analyses in much the same way as the sheriff, the mitigating circumstances, the serious injury to the employee, the absence of any fatality but then the fact that the appellants are part of a multi-national corporation,” Lord Carloway said.
But while the sheriff did have regard to the 2015 Guideline, how he did so was “not entirely clear”.
Delivering the opinion of the court, the Lord Justice General said: “If the Guideline were used as a method of calculating the appropriate fine, the court, as already noted, would have reached the same figures as the sheriff by applying the ‘high’ culpability factor and the Harm Category 2. This produces a starting point of £1,100,000 and a range of £550,000 to £2,900,000.
“However, the court would then have to have regard to the low number of employees exposed. This would not have decreased the starting point figure. The fact that the offence was a significant cause of actual harm could have increased it and may even have moved the category to level 1, thus producing a starting point of £2,400,000 and a range commencing at £1,500,000. However, the mitigatory factors would have kept the figure to the lowest level of that range.
“In short, using the 2015 Guideline as a cross check to the figure of £1,500,000, the sum selected as a ‘starting point’ in conventional Scottish sentencing parlance, prior to a discount for the early plea, seems reasonable.”
In relation to the level of discount, the court considered that 20% would seem “reasonable” to reduce the starting point of £1.5m by £300,000 to produce a fine of £1.2m.