HMA v JOHN MARTIN RIVA

At Haddington Sheriff Court Sheriff Peter Braid imposed a fine of £15,000 on John Riva after he pled guilty to a contravention of section 3 of the Health and Safety at Work Act 1974.

On sentencing Sheriff Braid made the following statement in court.

"John Riva, you have pled guilty to a serious contravention of section 3 of the Health and Safety at Work Act 1974, which required you to conduct your business in such a way as to ensure, so far as was reasonably practicable, that persons not in your employment who might be affected thereby were not exposed to risks to their health and safety.

You were contracted by Mr and Mrs Ross to replace the chimney of their cottage.  You employed a sub-contractor.  It is now known that during the course of the work, debris and masonry fell into, and blocked, the chimney, so that combustion fumes from the Ross’s solid fuel fire appliance escaped into the living room, instead of exiting via the chimney, with the tragic consequence that Mrs Ceri Ross died from carbon monoxide poisoning.

The blocking of the chimney would not have been fatal if you had taken adequate steps to investigate whether that had happened, and to rectify it.  However, you failed to do that in two respects.  First, you did not carry out any test upon completion of the work to check that fumes were going up the chimney.  You assumed that would have been done by your sub-contractor.  Nonetheless, it was your responsibility as main contractor to ensure that the proper testing was done.  Second, a strong indication that the chimney was blocked was brought to your attention when Mr Ross reported to you that, when the fire appliance was first used following the completion of the work, black smoke was building up behind the glass of the appliance.  While the Crown accepts that you promptly attended at the property to investigate, the steps which you then took to deal with that problem were inadequate.  You merely put some newspapers in the fire, and lit them.  Because it was getting dark, you then went on to the roof, saw smoke coming out of the chimney and wrongly concluded that there was no blockage.  You told Mrs Ross that she should have her chimney swept before using the fire, but for whatever reason that did not happen.

You now accept that the smoke test you carried out was inadequate and that what you ought to have done was to use proper smoke pellets, which should have been placed in the fire.  Had you done that, the blockage would have come to light.  However, it has to be acknowledged that you did attempt to investigate whether the chimney was blocked, to the extent of going on to the roof, which you need not have done, and that your default arose from ignorance on a matter outwith your normal area of expertise, rather than from a wilful failure to observe health and safety requirements.

The following principles as to approach to sentence can be derived from the authorities and guidelines to which my attention has been drawn.   

1. Where a death occurs due to a breach, that is an aggravating factor.
2. The more foreseeable the risk of serious injury, the graver the offence.
3. A breach with a view to profit (cost cutting) is an aggravation.
4. An isolated breach is less serious than one which continued over a period.
5. Mitigating factors include: prompt admission of responsibility and a timely plea of guilty; and a good health and safety record.

The court’s aim in passing sentence in cases of this sort is to achieve the proper degree of retribution and deterrence.  It is also appropriate to observe that in recent years, more weight has been attached to the significance of a death than traditionally was the case.   Having said that, as has previously been made clear, it is not the function of this court, in passing sentence, to attempt to place a value on the life of the person killed, either in financial terms, or by trying to equate the life lost to a particular length of custodial sentence.

Applying all of that to the present case, there are two aggravations.  First, the fact that your breach resulted in a death; and second, the degree of risk and the extent of the danger: in other words, it ought to have been obvious to you that if there was a blockage, there was a high degree of risk of death from carbon monoxide poisoning.  On the other hand, there is no suggestion of cost-cutting at the expense of safety, and this was an isolated breach.  As for mitigation, the work was carried out in a responsible and safety-conscious manner.  You thereafter made an honest, although fundamentally misguided, attempt to investigate the reported problem with the fire.  Your mistake arose from ignorance rather than a wilful disregard for your customers’ safety.  You also promptly admitted responsibility.  You also have a good safety record and you are of good character.  In that regard, I take into account the character references which have been placed before me, which speak highly of you, both in personal and business terms.  In that latter regard, you have been in business for 25 years.  It is clear that you enjoy a positive reputation and that there is a demand for your services.  I further note from the Social Work Report that you have struggled to cope since the incident and that you have demonstrated genuine remorse and empathy for the Ross family, while at the same time acknowledging that the distress you have felt does not stand comparison to the family’s sense of loss.

In all these circumstances, I am satisfied that the breach here, although serious, does not demand the imposition of a custodial sentence.  That also rules out community service.  I will deal with you by way of a fine.  Nonetheless, a significant fine is called for, both by way of retribution and to bring home to others the importance of complying with health and safety duties.

Having regard to your resources, I propose to take a starting point of £20,000.  I will discount that by 25% to reflect the stage at which your plea was tendered and the consequent saving in court time, resulting in a fine of £15,000."

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