Court of Session

Court of Session

A quarry operator which was fined £200,000 after an employee was killed in an accident while working on site may not be prevented from recovering the fine imposed on it from someone else, a judge has ruled.

D Geddes (Contractors) Ltd was fined during a criminal case at Forfar Sheriff Court in 2015 following the death of a tipper driver who reversed over a raised edge while working at Hatton Mill Quarry in Angus in 2012.

The Arbroath-based firm pled guilty to a breach of the Quarries Regulations 1999 by failing to ensure the safety of employees.

D Geddes (Contractors) then sought to recoup the money by taking the health and safety firm, which had been employed by the company in advance of the quarry accident, to court.

The quarry operator raised an action against Neil Johnston Health & Safety Services Ltd, whose duties included regular inspections of the quarry and supplying inspection reports, claiming that the defender had been negligent in failing to advise of the danger posed by a “stop block” or “bund”.

Now a judge in the Court of Session has ruled that the company’s conviction does not necessarily preclude it from recovering the loss from its external health and safety adviser.

According to the Court of Session’s ruling, the driver Joseph Troup was tipping materials into a feed hopper and although there was a bund in place to prevent lorries backing up over the edge, he reversed over the bund into the hopper and was killed

An investigation by the Health and Safety Executive found that there was a “build up of tipped sand and front of the bund that had allowed it to act as ramp over which a large-wheeled vehicle was capable of driving”.

The bund had therefore become “ineffective due to a combination of insufficient height and the ramping effect of the sand and gravel”.

D Geddes (Contractors) claimed that it would have taken the steps necessary to rectify the problem with the bund if they had been advised to do so by Neil Johnson Health & Safety Services, before the fatal accident occurred.

It was argued that that an ordinarily competent health and safety adviser exercising ordinary skill and care would have advised it that the bund was lower than the minimum height required by the relevant code of practice, and of the need for the bund to be as vertical as possible to avoid ramping.

Neil Johnson Health & Safety Services has argued, though, that it was not negligent and that the fault with the bund lay with D Geddes (Contractors). It also said that D Geddes (Contractors) could not recover the £200,000 fine imposed on it for a criminal act through an award of damages.

In his ruling, Lord Tyre considered a legal doctrine, in turpi causa, that generally prevents a person from profiting from their own illegal act, and how it applied to the claim for damages made by D Geddes (Contractors).

The judge said that there is no case law in either Scotland or England that absolutely prohibits “recovery of a loss consisting of a criminal penalty or the consequences of imposition of a criminal sanction”.

In a written opinion, Lord Tyre said: “It is certainly true that the courts have placed emphasis, in narrower form cases, on the need to avoid inconsistency between the criminal and civil law so that the law does not…give with one hand what it takes away with the other….But all of 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.”

He added: “For the foregoing reasons I am satisfied that the pursuer has pled a case for recovery of the £200,000 fine which is relevant for proof. In response, the defender avers that Mr Troup’s accident was caused by the fault of and breach of statutory duty by the pursuer. That defence, if established, may constitute the basis for application of the ex turpi causa principle. A proof before answer is accordingly necessary.”