ARGYLL and Bute Council appeared in Dunoon Sheriff Court last Thursday and entered pleas of guilty to charges of failing to carry out a risk assessment on Dunoon’s Coal Pier and failing to provide necessary edge protection at the pier. It now faces a ‘substantial’ fine. This follows the tragic death of a local 75 year old man whose car plunged into the Clyde from the Coal Pier in September 2007 after he selected the wrong gear. The Crown Office Service Health and Safety Unit (prosecuting) said “The council’s obligation was the safe operation of the car park,” and that a suitable and sufficient risk assessment would have concluded that, without barriers, a vehicle could have entered the water. The pier had been used as an unofficial car park for some time before Argyll and Bute Council adopted it as an official one. The council giving background to the incident, said that the Coal Pier was a working berth, with the last recorded commercial landing being one of road salt in 1997. He pointed out that the pier is still used by pleasure craft. The pier was adopted as a car park officially in May 2006. On the first charge, of failing to undertake a risk assessment on the pier, the council accepted that this was a serious mistake. Working piers have no barriers and an assessment would have found that this was no longer a working pier. And it emerged yesterday that the council neglected to meet their legal requirement to inform the Health and Safety Executive (HSE) of the incident. A spokeswoman for the Health and Safety Executive, asked if the matter had been reported by the council, said: "I can confirm that any duty holder has a legal obligation to inform the HSE immediately if they are responsible for a fatal accident. Is this really what the HASAWA was intended to cover?. Would you have known that there was a duty to inform the HSE given that the plice were involved.? 3. General duties of employers and self-employed to persons other than their employees. — (1) It shall be the duty of every employer to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment who may be affected thereby are not thereby exposed to risks to their health or safety.

Yes they should have been prosecuted but not under the Health & Safety at Work Act. Calling a council owned car-park a place of work is to my eyes, strectching it to the extreme. I accept that on occassions, council staff may have reason to work there but to take that theory to it's natural conclusion would make every single piece of council owned land a place of work. Does anyone know if any case precedence was cited in this case? If not, it sets a very bad one IMHO.

I totally agree too. I just think the prosecution was brought about under an inappropriate piece of legislation.

I agree it is an unusual scenario, but the evidence suggests that the Council were at fault, as would be the case under the OLA if a civil claim was made. Failing to report the fatality to the HSE is a basic error. The duty falls on the Council as per s3 of HSWA, as I believe the Council is an 'Employer' under the Act. Tragic accident but not unforeseeable in my opionion.

This is a typical part of the undretaking (business) of Local Authorities, and HASAWA extends to duty to protect those other than employees.

Was this a piece of land that the council saw as a money maker and started charging motorists to park their cars there? If so it serves them right to get prosecuted for not spending time and money on safety.

This is a sad and very interesting case in its own right and I too agree the council should have been taken to task over it. BUT are we losing sight of the fact that the council could possibly have pleaded guilty simply because it is tax payers money anyway so why worry about how big the fine will be simple plead guilty and get it over with. Were any of the council officers charged wil any thing likely to have them personally responsible and possibly facing exclusion from thier probably well paid jobs????

http://www.dunoon-observ.../675-council-in-the-dock And the Road Traffic Regulation Act (1984) makes it quite clear that councils may only levy parking charges to make appropriate improvements to parking facilities and other traffic management provisions and may not be used simply to raise general revenues (just thought I'd throw that in !)

Bob, and my apologies. In my first reading of your post I wrongly assumed that you were suggesting that the Council hadn't pleaded guilty and should have done. It is a sad case, but Councils along with any other company will generally look at the facts, take the legal advice and plead accordingly. I don't think pleading guitly is ever an easy option, or in reality any easier just because the public purse will pay. I would guess that there were some pretty searching questions asked and a lot of hand wringing and finger pointing, as is almost inevitable in these cases. There is every chance that some other form of internal action may well be taken. John also makes an interesting point. Some Council's don't charge for parking, and those that do, often do so merely in order to generate sufficient income to pay for the day to day maintenace; otherwise this would have to come from some other source (the council tax payer). I don't think most Council's see it as a money maker at all. The Council had a duty to assess and manage the risks and operate the car park in a 'safe' manner, and it would appear that they accept that they didn't. Whether they charged for the car parking or not has little to do with it. Isn't it intersting though, that there are relatively few 'new' accidents. Many of the accidents that we see have happended time and time again.

Also remember that as this is a Scots Law case, the Fiscal has the choice of what law to prosecute under, pretty much irrespective of who investigated. Suggests they felt the HSWA was the most relevant, on looking at all the evidence they had in front of them........

Is it the case that if a council are negligent in not putting barriers up on a car park and this contributes to a fatality the only law they they have broken is HASAWA? Perhaps Robens did see this gap but I am not convinced, at some point I may gather enough enthusiasm to research the archives at Kew. But if it the case that all you LA safety people have to be concerned about public safety to this extent then your job is very different from those of us in industry. Our section 3 responsibilities are only a minor extension of our work with our own employees. I wonder if this the root of so much elfnsafety bad press and the differences between us on the forum.!

From the National archives online ; May 1973 Cabinet office memo on the report One of the three main recommendations from the Robens report: "The substitution for the dozen or so main statutory enactments on safety and health at work of a single enactment, which would extend protection to virtually all employed persons; and would provide against risks to the public from industrial activities"

Bobhan Edge protection in a working port is more dangerous than having nothing. Look at any port, the quay edge is not protected. The difference in this case was that the pier was taken out of use as a port environment and changed to a public access environment - then no risk assessment was done. If it had remained a working pier, then no edge protection is needed or wanted.

Final Word! In 2003 the council gave planning permission for the coal pier car park to be used as a summer long street market. They noted that it was used as a fairground during the Cowal Highland games. No requirements for edge protection were discussed.