Death of Aberdeenshire gamekeeper avoidable

Matthew Burden died in the early hours of 6 February 2022 after being taken to hospital following a road accident on 29 January 2022 on an unclassified road from Tarland to Tillypronie, Aberdeenshire. On behalf of Tillypronie Estate, which led a Mr Turner as a witness, it was argued that the Crown’s submissions were impermissibly speculative.

The inquiry was conducted by Sheriff Christine McCrossan at Aberdeen Sheriff Court. Mr Burden’s employer participated in the inquiry in addition to the Crown, represented by Ms Adair, procurator fiscal depute.

Proper and timeous appraisal

On 29 January 2022, an Amber warning for high winds was issued for Eastern Scotland as a result of Storm Malik from 7am to 3pm. That same day, Mr Burden was due to work at a shoot on the Tillypronie Estate, where he was employed as a gamekeeper. Mr Burden was sufficiently concerned about the weather to make the decision that his eldest son, who was to be a beater at the shoot, should stay at home and not attend the shoot that day.

At about 8am that morning, Mr Burden’s company ATV was found stationary in the carriageway of the unclassified road from Tarland to Tillypronie with the offside wheels against a drystone wall. Mr Burden was found lying injured on the road and transferred by paramedics to Aberdeen Royal Infirmary. Despite receiving treatment for the injury, Mr Burden died on 6 February 2022. A post-mortem examination concluded that his death was caused by a head injury from a road traffic collision in which he had been the driver.

It was noted that there was a misalignment in the door latch mechanism of Mr Burden’s ATV, which none of the other employees who used the vehicle were aware of. The Crown submitted that the most likely cause of the accident was that the windy weather conditions caused the door to blow open, with Mr Burden being thrown from the vehicle when attempting to close it.

The Crown further submitted that the failure to have an adequate process involving a proper and timeous appraisal of the forecast weather ahead of planned shoots left decisions to be made on an ad hoc basis with no clear prioritisation. This amounted to a defect in a system of working, that being the organisation and preparation for a shoot. Had the shoot been cancelled, Mr Burden’s most reasonable course of action would have been to stay at home and repair dog kennels that were damaged in the storm.

For Tillypronie Estate it was submitted that the Crown submissions on the cause of the accident proceeded on a wholly speculative basis. The faulty latch was nothing more than a pre-existing condition, and it was unnecessary to have some sort of formalised procedure for appraisal of weather conditions in advance of a shoot.

No effective system

In her determination, Sheriff McCrossan said of the available evidence: “As there were no eye witnesses to this tragic accident we cannot know for certain the exact dynamic that led to Mr Burden being thrown from the vehicle; but in the court’s view it is more likely than not that the door flew open suddenly and violently in gusts which according to Police Scotland’s alert could have been as strong as 75mph.”

She continued: “Mr Burden had been witnessed taking the precaution of exiting his vehicle earlier on this journey to try to shut the door when it had opened previously. On this basis I have no reason to believe that shortly afterwards he was engaged in an attempt to close it against the high winds while continuing to drive. It is in my view far more likely than not that a sudden and violent gust of wind causing the door to fly open forcibly against its hinges led to the fatal loss of control of the vehicle and Mr Burden being thrown out.”

Considering whether there was a need to make recommendations Sheriff McCrossan said: “I do not consider the Code of Good Shooting Practice to be apt to deal with the situation. This inquiry has not taken place due to Mr Burden losing his life on a shooting outing; it is a mandatory inquiry as a result of his losing his life in the course of his employment. The Code deals only minimally with issues of health and safety of employees, in fact only by [stating that] shoots must make sure that they comply with the Health & Safety at Work Act 1974.”

She concluded: “For Mr Turner not to have been aware that there was a weather alert for that day of shooting in my view indicates there was no system in place at all to monitor whether it was safe for his staff to drive ATVs particularly on roads and rendezvous for a shoot to commence. His evidence that he simply obtained weather information from the TV the night before does not disclose any effective system. I appreciate that weather is a matter that cannot be governed by a strict rigid system and different employers across a variety of employments by necessity will have differing considerations. Notwithstanding it is my finding that the lack of any system whatsoever was a contributor to this accident and the death of Mr Burden.”

The sheriff therefore recommended that Tillypronie Estate introduce a weather monitoring system in the seven-day period leading up to a shoot, ensure that all employees wore seatbelts while driving in the course of their employment, and have the head gamekeeper ensure that employees with use of a company vehicle complete a form confirming any concerns with the vehicle’s condition.