Sheriff finds death of Orkney Council employee run over by tipper lorry during roadworks to have been avoidable

By Mitchell Skilling

Keith Johnston, an employee of OIC for some 24 years, died instantaneously as a result of the injuries he sustained by being run over and was pronounced dead at the scene. At the time of his death he had been undertaking road maintenance work as part of a team including multiple tipper lorries and other road workers.

The inquiry was conducted in Kirkwall Sheriff Court by Sheriff Gerard Sinclair. The Crown was represented by procurator fiscal depute Roderick Urquhart, with representation also appearing for Orkney Islands Council, the brother of Mr Johnston, and the driver of the lorry which struck the deceased.

Toolbox talk

In May 2017, OIC started its annual surface dressing programme for roads in Orkney. On Wednesday 28 June, the deceased was working as the acting foreman with the surface dressing workforce on the A967 Twatt to Bruna Fea road. Mr Johnston’s role during the resurfacing process was to use a leaf blower to blow loose stone chips onto the resurfaced carriageway, a role for which he required to wear ear protectors.

The driver of the lorry that hit Mr Johnston, a Mr Nicholas Darby, had been instructed to reverse down the A967 road where the deceased was working in order to unload his lorry. Mr Darby was unfamiliar with the route but did not expect to encounter anyone on the road as it had been closed for the work to take place. As he was reversing down the road, he felt a bump like going over a brick. He had not seen Mr Johnston in his reversing camera and had been using his mirrors to keep his vehicle straight. The injuries suffered by the deceased were fatal.

It was noted that no “toolbox talk” had taken place on the morning of the accident outlining potential risks. Following the accident and a notice of contravention issued by the Health and Safety Executive, OIC conducted a review of its road maintenance and repair procedures and made a number of changes, particularly in regard to reversing vehicles.

Counsel for Mr Darby submitted that he had simply been acting under instructions when he reversed along the A967, and that the accident could have been avoided with better planning and supervision. The deceased’s brother added that his brother had been very conscientious concerning health and safety and it was unclear how a miscommunication regarding the route to be taken by the lorries had happened.

Lack of knowledge

In his determination, Sheriff Sinclair observed: “Whilst the squad of workers [Mr Johnston] was supervising were highly experienced and would have been well aware of the dangers involved in road surfacing work, it was recognised that there were dangers which were constant and well known, relating mainly to the operation of the machinery, and dangers which changed on a daily basis, relating mainly to the geography and the location of where the work was being carried out.”

He continued: “If the lorry drivers had been instructed to either gather at the southern end of the closed section of the A967, or alternatively, gather initially at the Twatt Junction but then instructed to travel down through Dounby and along with Swartland Road, entering the A967 from the southern junction of the closed section of the road then the necessity for the lorries to reverse down the A967 Public Road to meet the train would have been avoided, All of these matters should have been the focus of discussion and agreement with the squad at a ‘toolbox’ talk, prior to the work commencing. Had this been done, then the issue around the lack of knowledge of some of the tipper drivers regarding the roads around the location would have been identified.”

Noting that Mr Johnston had been advised not to operate the leaf blower while the surface dressing process was active, the sheriff said: “The combination of the noise of the blower and the noise reducing effect of the ear defenders meant that he could not hear any approaching vehicles. It was not safe for Mr Johnston to be operating the leaf blower when vehicles were reversing down the A967 road. Had he recognised the risk he was taking and refrained from doing so then this might realistically have resulted in the accident being avoided.”

He went on to say: “The decision having been taken to allow the tipper trucks to reverse some distance down the A967 road to meet up with the train, at the point of work, someone else could have been tasked with the responsibility to guide the vehicles reversing along the road to the point of work when it was safe to do so and alternatively signal when it was not. This might realistically have resulted in the accident being avoided.”

Examining the steps taken by OIC since the accident, Sheriff Sinclair concluded: “I am satisfied that appropriate steps have been taken to ensure that a proper and appropriate safe system of work is now in place on which the workforce has been properly informed. I do not consider that any further recommendations would result in a death in similar circumstances being avoided in future.”

Study: Domestic abusers exploiting justice system

Victims feel alienated and excluded from the justice process, even with the introduction of the new Domestic Abuse (Scotland) Act 2018 (DASA), which put new safeguards in place and criminalised psychological domestic abuse and coercive and controlling behaviour.

Women reported that perpetrators were able to breach their bail, interdicts and non-harassment orders without criminal justice intervention, in a study carried out by researchers from Glasgow Caledonian University.

The study, funded by the Scottish government’s Justice Analytical Services Unit, is part of a larger project looking at women’s experiences of the criminal justice system.

Dr Nancy Lombard, reader in sociology and social policy at GCU, said: “Women often felt the perpetrator maintained their control and were actively empowered by the system even when convicted, despite the additional powers.

“Often, the case outcome left women feeling like it had been a waste of time, that the sentences were too lenient, their experiences of abuse were minimised, and that they were not valued within the criminal justice system.

“The initial evidence suggests that despite the new legislation perpetrators were able to continue the abuse and often, the perpetrators were able to manipulate criminal justice procedures to extend their abuse.”

The new legislation requires courts to consider imposing a non-harassment order on an offender convicted of a domestic abuse offence. It has also created a new statutory sentencing aggravation to reflect the harm that can be caused to children growing up in an environment where domestic abuse takes place.

A total of 132 women took part in the survey. Twenty-nine respondents had made their initial contact with the criminal justice system after the introduction of the DASA.

All the women reported experiences of coercive control and psychological abuse but none of the perpetrators received a conviction under the Act.

Overall the survivors reported a sense of alienation and exclusion from the justice process primarily due to a lack of regular communication from respective services.

Dr Lombard added: “Where additional supports were put in place such as special measures in court, interdicts and Non-Harassment Orders, women did experience periods of respite and hope.

“However, often, this was short-lived as the perpetrator found ways of continuing their abuse with no repercussions, through exploiting loopholes, manipulating procedure or in open defiance of any restrictions placed on them.”

The study, published today by The Scottish Centre for Crime and Justice Research, was produced by Dr Lombard, Dr Katy Proctor and Dr Nel Whiting, of GCU.

Dr Lombard added: “It is too early to fully evaluate the effectiveness of the legislation. However, to date, the findings from this small sample of survivors do not show any substantive evidence of DASA having had a positive impact on practice and women’s experiences of the criminal justice system.

“The women we spoke to called for better training and greater communication across the board.

“Positive experiences appeared to be the exception. The women expressed feelings of a lack of control throughout, regardless of the legislation applied to their case.”

Family of late rugby player to sue Scottish Rugby and World Rugby

Balfour and Manson LLP is representing Neil and Morven Cattigan in their lawsuit against rugby authorities, alleging that concerns about Ms Cattigan’s health were not taken seriously following head injuries she sustained in 2020 and 2021.

Robert Holland, representing the Cattigans, said: “The central issue is whether this tragedy was avoidable if the head injury protocols brought in to protect players had been followed.

“Claims have been served on both World Rugby and the Scottish Rugby Union, and we await a response.

“It is hoped matters can be resolved so Siobhan’s family can finally get some closure and lessons can be learnt by rugby union’s governing bodies.”

Ms Cattigan, who played for Stirling County and Scotland, died in November.

In a statement, the Scottish Rugby Union said: “We fully acknowledge the seriousness of what the family have shared [in a recent interview], however there are details and assertions about how our people are said to have acted that we do not recognise, or accept.

“Respecting medical confidentiality, and with reference in the interview to a potential legal claim, we are not in a position to communicate further on any details of Siobhan’s care at this time.

“We will continue to work closely with the many people connected to Scottish Rugby who knew and played with Siobhan to ensure they are supported at this very difficult time.”

Protocol launched for responsible investment in natural capital

It details expectations for new and existing landowners, managers and investors to ensure that their approach to natural capital and carbon management recognises their responsibilities, as well as their rights, in relation to land and contributes to a just transition.

Hamish Trench, chief executive of the Scottish Land Commission, said: “The newly published protocol builds on existing, crucial work to ensure Scotland’s net zero targets are met while benefitting communities, landowners and businesses fairly.

“There is no need to wait for market regulation or new legislation, change in practice can happen now. The protocol will help landowners, investors and communities take a responsible approach in what is a rapidly developing sector of land use and investment.”

The protocol is part of a suite that has been published by the Scottish Land Commission to support the practical implementation of the Scottish government’s Land Rights and Responsibilities Statement (LRRS).

Land reform minister Màiri McAllan said: “Investment in Scotland’s natural capital is vital to tackle the climate and nature emergencies – but we must ensure that our people and communities are not disadvantaged and indeed can benefit from this opportunity.

“This new protocol, alongside our Interim Principles for Responsible Investment in Natural Capital, will help us to focus investment in the right types of natural capital in the right places such as in nature-based solutions, like peatland restoration and woodland creation, which bring benefits for the environment, the economy and society as a whole.

“We are currently consulting on proposals for our ambitious new Land Reform Bill which will be introduced by the end of 2023, and will be another significant step forward in ensuring our land is owned, managed and used in the public interest and to the benefit of the people of Scotland.

“In the interim we will continue to work closely with the Scottish Land Commission to encourage and support responsible and diverse landownership and ensure communities have a say in how land in is used.”

The protocol highlights how existing natural capital owned by landowners should be protected and enhanced alongside the development of any other carbon activities and that investment in carbon management to offset emissions should always be made in addition to action to reduce emissions at source as close to zero as possible.

Mr Trench added: “We’ve worked closely with stakeholders to develop a protocol that sets out practical expectations for ownership, use and decisions. Using it should maximise the opportunity while minimising the risk of Scotland’s changing landscape and contribute to a just transition.

“When managed responsibly, there is real opportunity for Scotland’s land and natural capital to create positive social, environmental and economic impacts. There are some great examples already where landowners, investors and communities are providing leadership and this protocol seeks to help make this the norm by ensuring the long-term benefits are shared fairly by all.”

ESPC: House prices continue to rise in Edinburgh, Fife and Borders

The highest price increases during May-July 2022 were seen in West Lothian where market activity has accelerated in recent months thanks to buyers seeking larger, more affordable homes within easy reach of Edinburgh city centre. In this area, property selling prices rose by 10.4 per cent to £238,171.

Dunfermline, which continues to be a hotspot for first time buyers saw an average selling price increase of 7.7 per cent, taking it up to £193,733 annually.

In Edinburgh city centre, average property selling prices rose 6.5 per cent to £312,086. Following a period of high demand for properties in the past year, two-bedroom flats and three-bedroom houses continued to be particularly popular with Edinburgh buyers.

Two-bedroom flats in Edinburgh’s New Town and West End areas sold for £468,181, a 0.8 per cent annual rise. This was followed by Morningside and Merchiston where two-bedroom flats sold for an average of £383,970 – an increase of 17.6 per cent. In Leith, one-bedroom flats sold for £228,559, an increase of 43.5 per cent.

In previous quarters there was high demand for three-bedroom houses in Cramond, Barnton and Cammo, but ESPC said there are signs this is starting to cool off as the average price is now at £377,884, a decline of 5.2 per cent annually.

One-bed flats in the town were the most affordable property type across Edinburgh, the Lothians, Fife and the Borders during the period, with an average selling price of £87,858. Two-bedroom flats in the town were also one of the cheapest properties to buy at £129,296.

Three-bedroom houses in Dunfermline saw a 22.5 per cent decline in average selling price, taking the new figure to £213,649.

Paul Hilton, CEO of ESPC, said: “It’s been another busy quarter for the property market, with sustained growth across many areas, including in the average selling prices of property, and the amount over Home Report valuation that buyers are willing to pay.

“The latest figures show family homes, and flats in the desirable areas of Easter Road and Leith have been especially popular, and we hope to see continuing demand for homes in the city this year.

“For buyers starting out on their property journey, Leith and the surrounding neighbourhoods, and Dunfermline both offer great opportunities in terms of pricing and the volumes of available properties.”

Quarter of lockdown fines issues in most deprived areas

Such people were 2.6 times more likely to be given a fine that those living in the least deprived areas, figures analysed by Dr Susan McKie at the University of Edinburgh show. The figures have been examined in a report entitled Police Use of Covid-19 Fixed Penalty Notices in Scotland.

A quarter of fines were given to people under the age of 30.

The Scottish Courts and Tribunals Service (SCTS) registered more than 20,000 police fixed penalty notices in 2020/21. The report looks at quarterly fines published by SCTS in addition to administrative data.

Lead researcher Professor Susan McVie, of Edinburgh Law School, said: “This report is the first in the UK to examine in detail the payment of fixed penalties issued in relation to breaches of the Covid-19 Regulations.

“Concerns that the public would reject these penalties, and fail to pay them, are not founded by this study. However, it does raise concern about the impact of incrementally increasing fines on those who may have been least able or willing to comply with the regulations as it is likely that these individuals were also less able to pay their fines.

“Throughout the pandemic there was robust oversight of policing in Scotland, and reports have consistently shown that enforcement was the response of last resort for officers dealing with those who may be in breach of the regulations.

“Nevertheless, it is difficult to say to whether the temporary policing powers contributed to reducing the spread of the disease or saving lives. Moreover, it is clear that the legitimacy of the regulations in the eyes of the public waned over time, which posed significant challenges for the police.

“We recommend that the findings from this report should be considered in both the Scottish and UK public inquiries into the impact of the pandemic.”

Shared Parenting Scotland calls for complexity in child legislation to be resolved

The Scottish Law Commission is seeking suggestions on issues that it should include in its next work programme. One of the stated aims of the commission is to reform law which is unclear and unduly complex.

When enacted in 1995 the Children (Scotland) Act was a good example of clear and understandable drafting, but revisions introduced through the Family Law (Scotland) Act 2006 and the Children (Scotland) Act 2020 and other associated legislation has resulted in an unduly complex piece of law which is hard to follow for parties and leads to inconsistency in application across jurisdictions and between sheriffs, according to SPS.

Shared Parenting Scotland national manager, Ian Maxwell said: “Our casework shows troubling inconsistency in, for example, what parental rights and responsibilities means for both parents in modern Scotland. Sheriffs and lawyers who practise in family cases quote the ‘paramount’ principle – that the interests of the children are paramount – but there is a perception among many parents that the phrase has lost much of its meaning.

“A clarified law would help parents understand their shared obligations to their children in major decisions. It would reduce the ‘winner takes all’ approach of some ‘resident parents’ that undermine the role of the other parent in the eyes of their children as well as within schools, health providers and other public services.”

He added: “As one of the key pieces of legislation affecting children, we suspect the current complexity and lack of clarity is not compliant with the United Nations Convention on the Rights of the Child (UNCRC). In particular Article 42 states that governments must actively work to make sure children and adults know about the Convention so they can understand and pursue their rights.

“We would suggest that this type of legislation is best expressed in a codified form in order to provide a far clearer and more comprehensive account of what parents and children are expected to do and what they can expect from our family justice system.”

Contract to boost cybersecurity awarded

The grant will enable the Scottish Business Resilience Centre (SBRC) to run online and in-person workshops for public services and third sector health, housing, and social care bodies to ensure they are better prepared and protected.

Scotland has been subject to a number of disruptive large scale cyber-attacks in recent years with developments in Ukraine and the recent Covid lockdown exacerbating the situation.

The training, which has already benefited 450 organisations, includes mock scenarios such as a third-party software compromise, a ransomware attack and a threatened sensitive data leak.

It is hoped more than 250 organisations will benefit from the training programme, which comes ahead of a major summit in Edinburgh as part of European Cyber Security Month in October.

Justice Secretary Keith Brown, who will address the event, said: “We have all seen the devastating impact of an organisation falling victim to a cyber-related incident, so extending training to make more people aware of the risks is absolutely crucial.

“The Scottish government is committed to ensuring Scotland leads the way in cyber resilience and security. This extended training will help many more organisations to stave off the threat of an attack, and protect against disruptive and costly data breaches.

“The workshops provide practical guidance to mitigate or respond to hostile cyber-attacks. I would urge eligible organisations to take up this opportunity to ensure they are protected.”

Jude McCorry, chief executive officer of the SBRC, said: “There is no denying that the ongoing pressure facing everyone from a cyber-perspective has increased massively in recent years. Just as we see one organisation recover from the grips of a cyber-incident, another is targeted.

“It is also now believed that cyber criminals have targeted more than three-quarters of public sector organisations and, closer to home, we have seen this play out with a number of disruptive large-scale attacks already in Scotland.

“We don’t want to see more Scottish organisations fall victim to these attacks and that is why upskilling and awareness programmes continue to be so vital.”

Pinsent Masons office obtains first WELL certification in Scotland

Delivered by multi-disciplinary engineering consultancy Cundall, the new office meets IWBI’s rigorous standards for the design of spaces that enhance human health and wellbeing. To achieve the standard, the project had to consider seven categories including air, water, nourishment, light, fitness, comfort and mind.

Measures implemented to encourage staff health and wellbeing included a framed view of Edinburgh Castle from reception, naturally lit breakout spaces, high-quality filtration systems to improve indoor air quality, and circadian lighting to mimic natural daylight and help improve occupant mood, concentration and productivity.

Designed, built, and delivered in collaboration with Form Design Consultants, CBRE UK, AECOM and Overbury, Pinsent Masons’ 25,000 square foot Edinburgh office sits in Capital Square and houses over 200 staff.

Tony Centola, building services partner at Cundall, said: “We are delighted to have been involved in Pinsent Masons’ new offices in Edinburgh. Achieving the first WELL accredited office fit out in Scotland demonstrates Pinsent Masons’ commitment to their staff’s health and wellbeing by creating an inspiring and welcoming workplace for all.

“Our team faced and overcame many challenges including a base build not specifically designed for WELL, a pandemic, and a key supplier going into administration in the final phases of the project. We are very proud of all we have achieved and look forward to seeing more clients committing to staff wellbeing.”

Advantages of Custom Legal Case Management Software

In 2022 law firm leaders are choosing customisable legal software because of its high ease of use and automation levels, which is resulting in a marked improvement in employee productivity and business efficiency.

In this article Grant Yuill, Denovo’s head of marketing, sheds light on the key advantages, scalability and flexibility which allows their custom software, CaseLoad, to adapt to a law firms growing business needs over time.

Read more – Law Firm Case Management Software

How augmented intelligence in eDiscovery helps find the smoking gun

eDiscovery relates to the identification, collection and presentation of electronically stored information (“ESI”), usually to assist in investigations, litigation, or FOI requests. ESI can be vast and may include emails, electronic documents, voicemail, social media data, websites, audio and video files. Effective eDiscovery ensures that ESI reviews are as efficient as possible by reducing the review population down to a sensible and proportionate size and targeting the most relevant information through the use of Technology Assisted Review (“TAR”).

Each eDiscovery review will have broadly the same requirements, and a basic workflow should look something like this:

1. Collection – working with the client organisation we will identify data locations (e.g. laptop/desktop/server/smartphone) and the most efficient way to collect data. Data may be able to be collected remotely, or physical collection of an asset may be necessary to create an image of a device’s hard drive.
2. Data Triage – we will perform a simple data triage which may include the exclusion of certain file types, date ranges, unnecessary custodians, unnecessary domains (e.g. @bbc, @internalnewsletter).
3. Data Processing / Loading - data is then loaded into the eDiscovery platform before de-duplication and Optical Character Recognition (“OCR”) is performed to ensure data is searchable.
4. Filtering / Foldering - additional ‘positive’ and ‘negative’ searching is performed to set aside unnecessary documents and create folders of documents for review.
5. Review - documents are then reviewed and tagged for relevance.

The bulk of the work occurs once the newly created ‘Review Universe’ has been created on the platform, and access has been granted to the review team.

What can AI add?  

Image Labelling - The system will use AI to ‘label’ photos and images in documents, which can then be searched. Examples include:

• Construction Litigation - “bulldozer”, “soil”, “scaffolding” may find pictures of construction equipment and pictures of building sites
• Internal investigation - “computer screen” may bring back photos of confidential internal information that an employee captured
• Fraud or asset tracing - “watch”, “boat”, “ferrari”, “car” may bring back pictures of items of high value

Sentiment Analysis - Rather than relying on narrow keywords such as ‘Angry’ or ‘Upset’, the system analyses words and their correlation to one another, plus indicators of sentiment such as conspiration, intent, anger (including overuse of upper-case characters), to return email conversations of interest.

Recent examples identified by the feature include:

• This is creating a toxic atmosphere
• The accident could have been easily avoided
• I am very concerned with the error made
• This was a dodgy position
• HOW DID THIS HAPPEN?
• I am not responsible and will not cover costs

Machine Learning and Technology Assisted Review (TAR)

Possibly the most interesting AI feature is that through TAR the eDiscovery platform learns from the previous tagging and coding decisions made by the human reviewer by analysing the underlying metadata of a document alongside the textual content of the document and whether the reviewer classes each document as relevant or not. This analysis allows the system to assign a ‘likely relevance score’ to unreviewed documents, which can focus the review process to what are considered to be the most relevant documents first.

In simple terms, the technology will review a random set of documents/emails and assign a ‘relevance ranking’ (e.g. 95%+ = priority documents, 85-94% = 2nd priority etc) and can provide statistics as required. This means the reviewers can focus on not just the documents that have keywords or phrases identified within them but the documents that have these keywords or phrases in them as well as other features that make them more likely to contain the information that is being searched for.

Summary

There are a variety of extremely beneficial time (and cost) saving features in eDiscovery document review platforms. If you follow a straightforward workflow, it is incredibly easy to overlay that workflow with the more sophisticated AI features to greatly increase the chances of finding the relevant information or documents for the matter. It’s not just about finding the information, it’s about finding it in the quickest and most efficient way.

To discuss how eDiscovery can assist you please contact Ben Hammerton (ben.hammerton@quantuma.com) or David Bell (david.bell@quantuma.com) in our forensic accounting and investigations team.

And finally… paw and order

Ñirka, a young tortoiseshell cat, was spotted in the garden twice while owner Ramon Correa was on holiday.

On his return to his home in Victoria, Canada, he was slapped with a $150 CAD fine (around £100) for his cat’s trespassing, Capital Daily reports.

City officials said they issue up to around 10 fines every year under animal control by-laws covering any animal on private lands without consent of the person living there.

Mr Correa rejected suggestions that he should confine the cat permanently to his home. “I got that cat out of a barn, I’m not going to do that to the cat,” he said.