HMA v SSPCA

At Dunfermline Sheriff Court today, Sheriff Craig McSherry fined the SSPCA £5000 for breaching the Health and Safety at Work Act.

On sentencing, Sheriff McSherry made the following statement in court:

“On 9 May 2017, a plea of guilty to the libel in terms of section 76 of the 1995 Act was tendered.

An agreed narration was read and a plea in mitigation made by Mr Peter Gray Q.C., Counsel for the Scottish Society for Prevention of Cruelty to Animals (SSPCA), a Charitable Body.

The SSPCA admitted several breaches of Section 2(1) and Section 33(1) (a) of the Health and Safety at Work etc. Act 1974.

Employees had been exposed to substances hazardous to their health, namely avian allergens, whereby they were exposed to the risks associated with Extrinsic Allergic Alveolitis (EAA). The periods involved were on various dates between 1 November 2006 and 30 April 2009 and between 1 July 2011 and 30 April 2012.

The locus was a centre run by the SSPCA from the mid-1980s to April 2012. A range of wild animals and birds were taken in for treatment prior to release into the wild or, after treatment, passed on to other organisations for long term care.

These proceedings concerned the activities carried out at the centre involving wild birds and employees’ exposure to bird plume/dust.

The failings included:

  • Failure to carry out a suitable and sufficient risk assessment in respect of the risk of exposure to bird dust.

When visited by the Environmental Health Office (EHO) of Fife Council  and an HM Inspector of health, employed by the Health and Safety Executive (HSE) in February, 2008, no risk assessments had been undertaken in respect of animal allergens required by the Control of Substances Hazardous to Health Regulations (COSHH) Regulations, despite the fact that a core function of the centre was the handling of wild birds. In November, 2011 a further investigation considered that the risk assessments were neither suitable nor sufficient as they had not been undertaken with the involvement of centre staff and the assessments regarding the process of cage cleaning failed to include any assessment of the clearing times for avian allergens, being the time for the contaminant to clear from the room.

  • Failure to ensure that suitable arrangements for the use of Personal Protective Equipment (PPE) were in place.

The SSPCA had commissioned an inspection to review measures in place at the centre in November, 2006. Disposable masks were available to employees and visitors to the centre. The author of the report noted that while masks were worn by employees, they did not do so all the time or in the correct manner. They had not been face-tested for these masks nor had they received formal training as to the requirement to wear Respiratory Protective Equipment (RPE) and the reasons for doing so. Protection could be improved if FFP3 (a protection level) devices were used. At the time FFP2 masks were in use. There was found to be a potential for low levels of antigen to be present in the centre. There was a recommendation that staff be instructed in the wearing of RPE and that face fit tests should be required for all persons required to wear PPE. In February 2008, it was noted that staff still had not been face-fit tested despite the advice in November, 2006. In November, 2011 the only masks available were FFP1 and that FFP2 masks were usually worn but the centre had run out of these. It follows that there were none of the recommended PP3 masks at the centre.

  • Failure to ensure that it had appropriate information to be satisfied that the ventilation system installed at the centre was fit for purpose.

Air filtration systems were in place at the centre between 1 November 2006 and 30 April 2012. The specification of the extraction system was unknown and the SSPCA could not know whether the filters could catch sufficient dust to prevent it recirculating, nor could it know how many air changes per hour were being achieved. In 2011, there continued to be a number of failings in this respect and in particular local exhaust ventilation was not used during cage cleaning precipitating the risk of exposure to allergens. There was no information regarding the operating specification for the ceiling filtration system and there was no filter in the unit fitted to the office, dry sweeping of floors was done rather than wet cleaning or filtered vacuum cleaners which would have prevented airborne allergen release.

  • Failure between 1s November 2006 and 12 February 2008 to have in place a health surveillance system.

In 2008, there was no such system in place. Following the report in 2008, health surveillance testing commenced at the centre.

  • Failure to provide sufficient information, instruction and training in respect of the risks associated with exposure to bird dust.

The centre manager in 2008 had little understanding of COSHH Regulations or knowledge of risk factors such as avian allergens and biohazards. He was unaware why he was being asked questions about ventilation and unable to say what high risk tasks were present. In 2011, it was noted that there continued to be an absence of training.

It was agreed that had advice been followed by SSPCA and recommended changes implemented in full there would have been a safe system of work at the centre. During the period of the libel the risks associated with bird dust exposure were well known and harm following therefrom was readily foreseeable. The link between EAA and bird dust has been known since the 1960s.

As regards sentencing in a case such as this, I was directed to Scottish Power Generation Ltd v HMA [2016] HCJAC 99, in which Lord Justice General Carloway approved the use of the English Sentencing Council Guidelines 2015 as a cross-check in considering the appropriate amount of the fine. Existing Scottish precedent was held to be equally important.

I was also referred to Dundee Cold Stores & others v HMA 2012 SLT 1173; [2012] HCJAC 102, in which Lord Clarke at page 1180 para 24 approves the approach taken in Scottish Sea Farms Ltd v HMA 2012 SLT299 which at p.303 paras 18 and 19 brought together the authoritative guidance given in relation to the relevant considerations.

The court in deciding the appropriate sentence has in the first place to make an assessment of how serious a case it is dealing with. Factors to be taken into account in that assessment are the effect the relevant breach of statutory provision has had on the victim or victims and a breach involving a fatality or fatalities is regarded as automatically being a significant factor. An initial assessment of a case being particularly bad requires to be adjusted in light of any mitigating factors and a case not seen as particularly bad may require to be adjusted in light of aggravating factors. In HMA v Munro 2009 SLT 233, the court endorsed the approach taken by the Court of Appeal in England in R v Balfour Beatty Rail Infrastructure Services Limited [2006]EWCA Crim 1586. These principles are (a) where death occurs as a consequence of the breach that is an aggravating factor, multiple deaths being viewed even more seriously than single deaths; (b) a breach with a view to profit is a serious aggravation; (c) the degree of risk and extent of the danger and, in particular, whether this was an isolated incident or one continued over a period; (d) mitigation will include (1) a prompt admission of responsibility; (2) steps taken to remedy deficiencies; and (3) a good safety record; and (e) the resources of the offender and the effect of a fine on its business is important.

There is no dispute that the SSPCA failed to meet the legislative and regulatory standards expected of it. The care of, inter alia, wild birds was a core part of the work of the centre.

There has been no fatality as a result of the breach. While an employee who had worked at the centre had EAA in 2000 and died in 2010 as a result of complications associated with EAA, it is not claimed that her death was as a result of any breach on the part of the SSPCA. Indeed there is no evidence of any such illness having befallen any employee or other person visiting the centre. There is no deliberate or flagrant breach of the law in this case. The SSPCA did fail to implement some of the recommendations of its own expert for a number of years and systems were in place but not sufficiently implemented. The degree of culpability in my view was somewhere between medium and low. Efforts had been made to address the risk but were inadequate and breaches had been allowed to subsist over a period of time. The latter is an aggravating factor. In my view, in particular, the continuing failure to provide PP3 masks as recommended and ensure their proper use by employees is a significant aggravating factor. Mr Gray drew my attention to a report which possibly lulled the SSPCA into a false sense of security.

Regarding the risk of harm, EAA is an inflammatory lung disease that can be destructive. It is estimated that between 10-15% of individuals may be susceptible to bird dust. Types of reaction depend of the level and term of exposure and an individual’s susceptibility to bird dust. No one has suffered EAA as a result of the breach. However, there existed the possibility of someone contracting EAA and this was or ought to have been foreseen by the SSPCA.

In applying precedent in assessing an appropriate fine the court is at a disadvantage as there in no prior case in Scotland involving a registered charity breaching the relevant statutory regulations.

Mr Gray advised that SSPCA was a charity providing a vital service. It receives no state funding at all and is dependent on public donation and legacies. It has an excellent health and safety record and has no previous convictions in its long history. It accepts that it failed to meet the very high standards it set itself and put its employees at risk. There is no suggestion that the failings contributed to any actual injury sustained by an employee. There has been an early agreed plea which has a utilitarian value and has saved considerable court time. There is no deliberate breach here. The inspections revealed measures being taken but some not implemented consistently or with sufficient rigour. There is no other area of criticism other than EAA.

I was directed to a statement from the EHO, Richard Hyde, who may have lulled the SSPCA into a false sense of security in meeting its statutory duty. By April 2009, he was satisfied that all matters had been addressed. Accordingly SSPCA was advised that the concerns raised in 2008 had been satisfactorily addressed. In 2010, Fife Council was happy with the inspections and no further Council involvement was required. Mr Gray said that this offence was out of character. He argues that an appropriate fine may be less for a charity than other organisations. P 11 of the Sentencing Guidelines for England and Wales, The Guidance of 2010 and 2015 had been approved by Scots courts. The Guidelines state that a fine should normally be substantially reduced if the offending organisation is able to demonstrate the proposed fine would have a significant impact on its provision of services.

In R v Southampton University Hospital Trust [200] 2 Cr.App.R.(s) 9, there had been a prompt admission of liability, timely plea of guilty, steps taken to remedy failings, a good safety record, enormous contribution to public welfare, the financial position and complete cooperation with the prosecution. Particular considerations pertinent to public bodies may call for a moderation of the penalty.  Many if not all of these mitigating factors applied in the present case. The Scottish Power case makes it clear that the Guidelines may be used as a check. There has been no cost cutting involved.

In Hma v Lanarkshire HB Health Board, unreported, a fine of £60,000 was imposed in respect of failings leading to a fatality. The recent accounts of SSPCA show a £55,000 operating surplus. The level of income is not guaranteed. The SSPCA provides valuable services to the crown which are not recompensed. For 2016, there is an estimated deficit of £300,000. Although there are healthy reserves income is taken from these of £900, 000 or so. The SSPCA is operating with reserves of £10,000,000 which is below the recommended level set by the charity regulator of £12,000,000.

In my view the fact that the SSPCA is a charitable body and that any fine will naturally impact on its ability to provide the services it does, must be taken into account. Practically all the mitigating factors detailed in case law and the guidelines apply here.

It is rather difficult to apply principle in relation to sentencing as there is no precedent in Scotland as far as I have been made aware. I regard this as a case which appears not to be particularly bad at first blush but has aggravating factors, particularly the continued failure to provide suitable masks and have them face fitted which lasted for a considerable period. During this period there was the continuing risk of employees and visitors contracting EAA. If this was not a charity, I would regard a fine of £30,000 as a starting point. Given that it is a charity, I would discount this fine by one half to £15,000. Taking into account the fulsome mitigating factors, I would further discount to £7,500. There has been an early plea so I shall apply a further discount to £5,000.

It appears that I am required to carry out a cross check with the Guidelines.

In determining the offence, category breaches were allowed to subsist over a considerable period of time which would place the case in high culpability. However the SSPCA fell short of the appropriate standard as systems were in place but not sufficiently adhered to or implemented which would be medium culpability. Significant efforts were made to address the risk although some were inadequate and this would be low culpability. I would place culpability somewhere between medium and low.

As regards harm, the seriousness is Level C with a low likelihood of harm, harm category 4. I do not understand there to have been many employees or visitors exposed to the risk of harm and there was no actual harm caused. As the SSPCA is a charity, I require to have regard to the annual turnover which is around £10,000,000. For an organisation such as the SSPCA the category range is between £1,000 and £10,000. There are no considerations which would lead to an upward adjustment. I have to ensure that the proposed fine is proportionate. None of the aggravating factors mentioned on page 9 of the Guidelines applies in this case. All of the factors reducing seriousness or affecting mitigation do apply here. There has been assistance to the prosecution and an early plea of guilty.

In the category range of £1-10,000 I have by other means arrived at a figure of £5,000 and using the Guidelines as a cross check, it appears that such sum is consistent with what I believe to be fair and what the guidelines direct. As the income is just about sufficient to meet the charity’s objectives, such a fine should not adversely impact upon the SSPCA in my view."