HMA v Kinning Park Care Home (Scotland) Limited

At Glasgow Sheriff Court today, Thursday 14 February 2019, Sheriff Alan R Mackenzie fined Kinning Park Care Home (Scotland) Limited £60,000 after the company pled guilty to health and safety breaches which resulted in the death of care home resident Margaret Young.

On sentencing Sheriff Mackenzie made the following statement in court:

"Kinning Park Care Home (Scotland) Limited has tendered a plea of guilty to an offence committed on a single day, 28 September 2015, brought under Regulation 4(3) of the Provision and Use of Work Equipment Regulations 1998 and section 33(1)(c) of the Health and Safety at Work etc. Act 1974.

"The offence involved a failure of the closing mechanism of a door at the end of a small corridor within the company's care home. The door in question opened onto a concrete stairway which descended to a boiler room. As at 28 September 2015 nothing prevented any resident within the home from accessing the small corridor where the door was situated.

"On that date the failure of the closing mechanism had tragic consequences. Margaret Young, an 83-year-old resident, who suffered from Alzheimer's disease and glaucoma , and who was last seen by a member of staff around 4.00pm was discovered at the foot of the boiler room stairs around 8.30pm suffering from multiple fractures. She was taken to the Queen Elizabeth University Hospital in Glasgow, but developed aspirational pneumonia as a consequence of her injuries and died on 12 October 2015.

"The company acknowledged its guilt on this matter and through its counsel indicated to a representative of the Crown as early as 13 April 2017 its willingness to plead guilty to an appropriately framed charge. The Company recognises the seriousness of the matter before the court and has indicated an ability to pay a fine.

"In selecting an appropriate sentence I have particular regard to a number of matters.

"While a routine check of the locking mechanism on 23 September 2015 with the door fully open, half way open and at quarter distance had not identified any problem, a post-accident examination disclosed that if the door was slightly ajar it failed to lock automatically. There was an apparently simple remedy to the problem, which involved tightening the self-closing mechanism and this was addressed on the day following the accident.

"After the accident a number of additional safety measures were introduced including the fitting of a mortice lock to the door which had previously been secured solely with a Yale lock, the positioning of a new warning sign ,albeit one had existed before the accident, and a regime in which residents were prevented from accessing the small corridor, the door to it being secured with a key pad lock, the number of which is known only to staff.

"The Crown narration, to which no exception was taken, indicated that members of staff had experience of the defect in the locking mechanism before the day of the offence but, while there was a system of reporting faults, management had not been made aware of any problem.

"In part of the narration the Crown characterised the defect as intermittent and latent. Notwithstanding such phraseology, it is clear that it was not latent to those members of staff who had previously experienced the locking mechanism failing to operate satisfactorily. So far as the defect being intermittent, following questioning on this matter, counsel for the company accepted that there was really no clear answer on whether or not it was intermittent.

"Both the Crown and counsel for the company referred me to the definitive guideline issued by the Sentencing Council for England and Wales for offences of this sort which came into force on 1 February 2016 and I have had regard to that guideline.

"It was submitted on behalf of the company that approaching sentence in terms of the guideline culpability should be assessed as low. Against the background of the particular matters to which I have already made reference, while not high, I judge that culpability properly falls within the medium category.

"Following the steps set out in the guideline thereafter, as there was a death and that the likelihood of harm was high were a resident to fall down the steps, the offence must be placed in the most serious category of harm. I also take account of the fact that other residents could have accessed the corridor on the day in question and that the defect in the locking mechanism was most assuredly a significant and proximate cause of the accident which befell Margaret Young.

"I recognise that the company has a relatively modest annual turnover of under £1 million and would, according to the guideline, at least, be characterised as a micro organisation. In the light of the forgoing factors the starting point, prior to any mitigatory factors, in terms of the guideline would be a fine £100,000 with a range of between £60,000 and £160,000.

"I consider that if the guideline was the sole or primary yardstick a starting figure somewhat in excess of £100,000 would be appropriate. From that figure due account would require to be taken of a number of mitigatory factors. The company has no previous convictions and no other pending cases. There is a good health and safety record over a number of years and health and safety procedures do exist.

"The company promptly remedied the problem identified, cooperated with the police and cooperated fully with the Health and Safety Executive during its investigation.

"The guideline is, of course, to be utilised as but a cross-check. I require to consider the whole circumstances of this case including the tragic consequences. In an environment where Margaret Young, at her age and with her particular vulnerabilities, ought to have been safe, it is evident that she experienced a horrific accident which ultimately led to her death. While anyone familiar with this tragedy cannot but be moved, I have no doubt that her death and the surrounding circumstances are and will remain a source of profound and ongoing sadness for her family.

"I have already identified mitigating factors. I take account of the financial position of the company, recognising that any sentence imposed must be sufficiently substantial to have a real economic effect and thus bring home to the company its health and safety responsibilities.

"In my judgment had this matter proceeded to trial an appropriate headline sentence would have been £90,000. Given the company's acknowledgement of guilt at an early stage obviating the need for a trial, I accept that there is a significant utilitarian value in that and accordingly I discount the headline sentence to one of £60,000. In the light of the defence submission I will accept an initial instalment payment of £20,000, to be made within seven days, with the balance to be paid within 12 months, with recovery by civil diligence."