SHERIFFDOM OF GLASGOW AND STRATHKELVIN AT
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INQUIRY
HELD UNDER FATAL ACCIDENTS AND SUDDEN
DEATHS INQUIRY ( ACT 1976 SECTION
1(1)(a) |
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DETERMINATION by SHERIFF JAMES KENNETH MITCHELL, Esquire, Advocate, Sheriff of the Sheriffdom of Glasgow and Strathkelvin following an Inquiry held at Glasgow on the Nineteenth, Twentieth, Twenty first, Twenty second and Twenty third days of November and Tenth, Eleventh, Twelfth, Thirteenth, and Fourteenth December all Two thousand and Seven into the death of THOMAS BOLESWORTH, aged 65 years, who normally resided at 145 Garthland Drive, Dennistoun, Glasgow. |
GLASGOW, 23 January 2008.
The Sheriff, having considered all the evidence adduced, the competing submissions and the relevant statutory provisions, DETERMINES:-
(1) in terms of section
6(1)(a) of the Fatal Accidents and Sudden Deaths Inquiry (
(i) THOMAS BOLESWORTH, born 18 July 1940, who resided at 145 Garthland Drive, Dennistoun, Glasgow died on 6 JANUARY 2006 at 08.33 hours in the Intensive Care Unit of the Royal Infirmary, Glasgow; and (ii) the accident which resulted in his death took place at about 16.30 hours on 30 DECEMBER 2005 in the meat preparation room of the premises occupied by James McNamara trading as R. McMillan, Butchers, 434 Duke Street, Glasgow;
(2) in terms of section 6(1)(b) of the Act that
(i) the cause of Mr Bolesworth's death was multi-organ failure secondary to cardiogenic shock, secondary to myocardial infarction, secondary to sustaining approximately 38% mixed thickness scalding injuries to his face and body on his trunk, left arm and both legs; and
(ii) the cause of the accident resulting in death was that, in circumstances not fully established, whilst working in the course of his employment as a butcher alone in the meat preparation room, Mr Bolesworth, removed the lid from the Rose Cooker Mark X RE in order to stir the contents, placed it on the mincer, as depicted in the photograph comprising Crown Production 1A, then lost his footing, grabbed at this open cooker causing it to topple over towards him as he fell onto the floor of this room and the cooker to fall onto his lower body and legs resulting in some of its contents, namely, boiling meat about 65lbs in weight plus a quantity of boiling water, to spill over him causing him to sustain the scalding injuries above specified.
NOTE:
[1] This fatal accident
inquiry into the death of Mr Thomas Bolesworth, aged 65 years,
formerly residing at
[2] The procurator fiscal led
evidence from 12 witnesses, namely, Mr James McNamara,
Mrs Carole McNamara, Ms Jacqueline Reid, Stewart McNaughton,
Steven John McLean, Mrs Jane Dyer, Scott Thomson, Dr Martin Hughes,
Peter Lavelle, Henry Lang, Josephine Anne Bell and George McCracken. Glasgow City Council and Mrs Dyer led
evidence from Professor Anthony Busutill, who is the Medical Director,
NHS Lothian Forensic Medicine Examiner Services and the Emeritus Professor
of Forensic Medicine at the
Background matters admitted or
undisputed
[3] Mr Bolesworth died on 6 January 2006 in the Intensive Care Unit of Glasgow Royal Infirmary subsequent to sustaining scalding injuries to about 38% of his body surface in an accident which occurred about 16.30 hours on 30 December 2005 whilst he was working in the course of his employment as a butcher at R. McMillan, Butchers, 434 Duke Street, Glasgow.
[4] In the second Joint Minute it was admitted that on 30 December 2005 at 16.45 hours, Mr Bolesworth was taken by ambulance from this butcher's shop to Glasgow Royal Infirmary, Castle Street, Glasgow; that he was admitted there at 17.05 hours and, on examination by medical staff there, was found to have sustained approximately 38% mixed thickness scalding injuries to his face, trunk, left arm and both legs.
[5] It was also admitted that
Mr Bolesworth was admitted directly to the Burns Unit at the Infirmary,
where he received appropriate fluid resuscitation and appropriate dressings. It was admitted that his progress was
initially satisfactory but that his condition deteriorated on
[6] It was agreed by all those who appeared at this Inquiry that Mr Bolesworth had been an affable and uncomplaining man. He was an experienced, competent and hard working butcher, who was held in high regard in the place where he worked for the last 16 or so years prior to his retiral.
[7] Christmas and New Year were the busiest times of the year at this butcher's shop. Although he had retired, it was not disputed that Mr Bolesworth had remained very friendly with his former colleague and later employer James McNamara. The two of them agreed that Mr Bolesworth should come back into work for a couple of days at Christmas and again for a couple of days at the New Year. Characteristically, Mr Bolesworth had offered to give his friend, who was the only butcher remaining in the shop, "a wee hand over Christmas and the New Year".
[8] It is not clear whether
Mr McNamara or Mr Bolesworth appreciated that this informal
arrangement between them constituted a legal relationship but those appearing
at this Inquiry, who are regularly involved in matters of health and safety at
work and accidents in the course of employment, were agreed that this informal
arrangement between these two friends constituted a legal relationship whereby
Mr Bolesworth was working in the course of his employment with James McNamara
trading as R. McMillan, Butchers: United Wholesale Grocers Ltd v Sher 1993 SLT 284; Robb v Salamis (M&I) Limited 2005
SLT 523. Accordingly, although
Mr Bolesworth was only lending a hand on a temporary basis for a few days,
all the statutory duties incumbent on his employer in respect of other
employees applied with equal force to Mr Bolesworth, who was entitled to
the same protection from injury as any other employee.
[9] Although certain
difficult issues arise for determination at this Inquiry, there was much
evidence led which was not in dispute.
It was accepted that the afternoon of
[10] Mr Bolesworth was obviously injured. Ms Reid confirmed that Mr Bolesworth said that he did not want an ambulance. He asked her "to run him up the road so that he could get a change of clothes". He intended to come back to work. But someone had summoned an ambulance, which arrived very quickly. The ambulance personnel attended to Mr Bolesworth and, according to Ms Reid, Mr Bolesworth walked out through the shop in "tinfoil" to the ambulance. Ms Reid said she asked Mr Bolesworth if he wanted her to contact anybody, to which he replied "No hen. I'm fine". She said that as "Tommy" walked with the ambulance personnel she thought that everything would be "fine". Mr Bolesworth was taken to the Glasgow Royal Infirmary, where he remained until his death some 6 days later.
[11] Although no police witness
was led at this Inquiry, it is established on the evidence that the police
attended at this butcher's shop soon after the accident. The police made it clear that nothing should
be touched. At
Statutory responsibility of
[12] It was not in dispute at this Inquiry that, at the material time, the responsibilities for investigation of accidents and inspection of premises in terms of the Health and Safety at Work etc Act 1974 and subordinate legislation made thereunder were discharged in respect of butcher's shops by the local authority and not by the Health and Safety Inspectorate. Reference may be made to the Health and Safety (Enforcing Authority) Regulations 1998. Accordingly, it was the responsibility of the Environmental Services Department of Glasgow City Council to investigate this accident at work.
The initial investigation by the
Out of hours Team
[13] Mr Lavelle and Mr Scott Thomson attended at this butcher's shop at about 18.30 hours. The police were there. Mr Lavelle, in company with Mr Thomson, spoke to Mr and Mrs McNamara, Ms Reid and another female shop assistant, who was not adduced as a witness. Mr Lavelle and Mr Thomson then entered the back shop and Mr Thomson took photographs which comprised Crown production 1A-F.
[14] Mr Lavelle became concerned about the stability of the Rose cooker. He ascertained that it had apparently fallen over and some of its contents had injured Mr Bolesworth. Mr Lavelle was concerned in case a similar accident should happen although, on his own account "we didn't go into great detail that night" with the witnesses regarding the circumstances in which the accident had happened.
[15] At all events, upon Mr Lavelle's inspection of the cooker, he decided that a prohibition notice should be served on Mr McNamara to prevent its use. He and Mr Thomson returned to their office and met with their Team Leader, Mrs Josephine Ann Bell. She was off duty that night but had been contacted about 17.30 hours and told of the accident by Mr Thomson. She said that she had also spoken to Mr Lavelle. She stated that she had told them to go out and find out as much as they could. Mrs Bell stated in evidence that she had "told them to carry out fatal accident procedure".
[16] Mrs Bell, who stated that she had 27 years experience of carrying out inspections, including floors, went to the butcher's shop with Mr Lavelle and Mr Thomson at about 22.30 hours. At that time she saw the cooker, which was back on its stand. She supported Mr Lavelle's decision in respect of the prohibition notice. Accordingly, a prohibition notice, of which Crown production number 3 is a copy, was served on Mr McNamara prohibiting the use of the Rose cooker.
[17] Mrs Bell went on to describe in evidence how the food and debris had been cleaned up but that her "feet were going away from me". She stated that she was wearing ordinary shoes and was aware that the floor was "uneven". However, Mrs Bell did not instruct any immediate action to be taken in respect of the uneven floor or its apparently slippy state. Nor did Mrs Bell instruct that there be any follow up visit to this butcher's shop the next day. Mrs Bell stated "My main reason for being there was the boiler" (cooker). I found this a surprising position for her to take given her later evidence, in answer to Mr Conway, that the floor was slippy the night she was there; that she was aware that it was a local authority priority target to reduce slipping; and that the danger of slipping "must always be in mind".
The decision not to interview Mr
Bolesworth
[18] Mrs Bell stated that Mr Thomson had spoken to the police concerning Mr Bolesworth. She said that the information given by the police was that "he was very, very poorly on the night of the accident". She stated that the information was "60% burns and that Mr Bolesworth was "too poorly to interview". Mrs Bell stated in evidence that there had been a conscious decision not to do an interview".
[19] Mr Lavelle stated that he
was not aware of any effort being made to speak to Mr Bolesworth between
[20] During cross-examination by Miss Gallagher, Mr George McCracken, Group Manager of the Land and Environmental Services Department: Enforcement Section, accepted that the local authority had a statutory obligation to investigate accidents at work. He recognised that it was important to have early investigation of an accident and that where the injured party was the only eyewitness it was "quite important but not always possible to do so". He stated that he would have expected his officers to enquire and to check with the hospital whether it was appropriate to interview the injured party.
[21] It was not in dispute that
Mr Bolesworth was working alone in the meat preparation room at the back of the
premises at the time of his accident.
Yet, the local authority, who had the statutory responsibility to
investigate his accident at work and whose officers were aware that not only
was he the only eyewitness but also that his injuries were severe made a
conscious decision not to do an interview.
On the evidence it appears that this decision must have been taken by
Mrs Bell. In his closing submission
Mr Coll, for the local authority, stated that Glasgow City Council took
the view that it was very unfortunate that the opportunity which might have
existed on
[22] In my judgment, the decision
not to make any attempt to interview Mr Bolesworth in the three days after
the accident before he became so unwell as to be unable to be interviewed was a
most serious error of judgment. The investigation of this accident at work in a
butcher's shop rested with the local authority.
On the information available to Mrs Bell this was a serious
scalding accident involving about 60% burns.
This caused Mrs Bell to instruct fatal accident procedure. I do not know whether this instruction
resulted in the failure to interview Mr Bolesworth in hospital but, on
Mrs Bell's evidence, this conscious decision was taken without making any
inquiry of the doctors treating Mr Bolesworth in Glasgow Royal Infirmary
as to whether he was fit to be interviewed.
My impression from Mrs Bell's evidence was that she considered this
"conscious decision" was appropriate.
In my judgment, she should reflect on that conscious decision, which was
taken on incomplete information.
Mr McCracken expected his officers to make inquiry by checking with
the hospital to ascertain whether it was appropriate to interview the injured
party. The statutory duty to investigate
accidents at work, particularly serious ones, cannot ever be delayed because of
public holidays. Mr Conway submitted that the investigation by the local
authority lacked urgency and that contact should have been made with the
Infirmary at an early stage which would have revealed that Mr Bolesworth
was fit enough to be interviewed until his condition deteriorated on
3 January 2006. In my judgment,
this error resulted in the local authority failing in the discharge of its
statutory responsibility to investigate Mr Bolesworth's accident at work because
Mr Bolesworth was fit to be interviewed between 1 and
Mr Bolesworth's condition after
admission to Glasgow Royal Infirmary
[23] Dr Martin Hughes, an
experienced consultant in intensive treatment medicine and anaesthesia, treated
Mr Bolesworth and expressed the opinion that he had a "40/50% chance
of survival from the burning injuries which he sustained in the
accident". Accordingly,
Mr Bolesworth's death from the scalding injuries which he sustained at
work on
[24] Although Dr Hughes' evidence to the effect that Mr Bolesworth had suffered a heart attack whilst in the Burns Unit was not further explored, Professor Busutill made it clear that, in his experience, during a post-mortem examination heart attacks thought by medical staff to have occurred were not always confirmed. Professor Busutill made it clear that, in his opinion, as no post-mortem examination had been carried out in respect of Mr Bolesworth, no-one knew why he died. In answer to Miss Gallagher, Professor Busutill stated that it was up to the Deaths Unit, Procurator Fiscal to decide whether a post-mortem examination should be carried out. Mr Quither did not seek to challenge Professor Busutill's evidence on that matter.
[25] In my judgment, on the evidence led before me there is no basis for suggesting that either the acquiring of a chest infection or the suffering of a heart attack by Mr. Bolesworth whilst a patient was to any extent attributable to any act or omission on the part of Glasgow Royal Infirmary or any of its staff. It was not suggested by any party that the Infirmary or any of its staff was responsible for, or in any way contributed to, Mr Bolesworth's death. The Inquiry was not intimated to the Trust which is responsible for the Infirmary. In my judgment, it is necessary to make these matters clear to any person who may read this determination.
The Procurator fiscal depute's
conduct of this Inquiry
[26] I wish to make it clear that Mr Quither, who conducted this Inquiry on behalf of the procurator fiscal, came into it just before it commenced and was not involved in its initial preparation stages. It should be recorded that Mr Conway stated that the conduct of the Inquiry by Mr Quither was regarded by the relatives of the deceased as "extremely good": a view with which I concur. By the time Mr Quither became involved it was impossible for him to do what had been left undone. In my judgment, he did everything he could not only to assist the deceased's relatives but also the court. The deceased's daughter-in-law sat in court throughout most of the Inquiry and listened attentively to the evidence.
The consequences of the decision of
the Procurator Fiscal's office not to hold a post-mortem examination of Mr
Bolesworth's body
[27] By the time of Mr Bolesworth's death it should have been clear that in terms of section 1(1)(a)(i) of the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976 the holding of a Fatal Accident Inquiry was mandatory. The reason for the decision of the Procurator Fiscal's Deaths Unit not to carry out a post-mortem examination of Mr Bolesworth's body was not explored in evidence. Accordingly, I cannot go so far to hold that it was inexplicable. However, the decision not to instruct a post-mortem examination has turned out to be a most unfortunate decision which certainly resulted in this Inquiry becoming more lengthy and expensive than it need otherwise have been. Mr Conway made it clear that he was privately funded. As I understood it, the employers were funded by an insurance company and the costs of the procurator fiscal and the local authority come from public funds. The considerable expenditure of this lengthy Inquiry could have been lessened by the carrying out of a post-mortem examination which was likely to have assisted in providing answers to questions which remained to be investigated at the Inquiry. As I have said, Professor Busutill made it clear that, in his opinion, without a post-mortem examination it could not be known why Mr Bolesworth died.
The proper conduct of a Fatal
Accident Inquiry
[28] Mr Conway took objection when counsel for the local authority and Mrs Dyer sought to develop the matter of whether Mr Bolesworth was suffering from hyponatremia at the time of his accident on 30 December 2005. Hyponatremia is a metabolic condition in which there is not enough sodium in the body fluid outside the blood cells. Sodium is very important for maintaining blood pressure and is also needed for nerves and muscles to work properly. I shall return to this matter later but, in a most courteous way, Mr Conway made the point that no fair notice had been given of this line and that "trial by ambush" was inappropriate at a Fatal Accident Inquiry, particularly since counsel did not raise this matter when he had the opportunity to do so with Dr Hughes. Although I have been able to reach a conclusion on the matters raised regarding hyponatremia, Mr. Conway's fair notice point raises a fundamental issue about the proper conduct of a Fatal Accident Inquiry. I understood from Mr Conway that this matter might be taken up with the Sheriff Court Rules Council.
The absence of relevant evidence at
this Inquiry
[29] This Inquiry did not hear
evidence from any police officer, ambulance personnel or nurse who might have
spoken with Mr Bolesworth about what happened to him in the meat
preparation room at approximately 16.30 hours on
Mrs Jane Dyer, Environmental Health
Officer
[30] At an early pre-Inquiry
hearing held in terms of the Sheriff Principal's practice note, the procurator
fiscal depute then dealing with this case made it clear that the procurator
fiscal considered that there might be responsibility for the accident attaching
to Mrs Jane Dyer, to whom the Inquiry was intimated. In the event, Mr Coll was able to
represent her interests and she did not require to be separately represented. In
his closing submission for the procurator fiscal, Mr Quither very properly
did not advance any criticism in respect of Mrs Dyer. Neither Mr Conway for Mr Bolesworth's
son nor Miss Gallagher for the employer made any criticism of
Mrs Dyer. Indeed, Mr Conway
stated that she was manifestly a careful and conscientious food inspector. He stated that she had not been given the
training nor had the tools to do the job of health and safety inspection as
opposed to food hygiene inspection. Very
properly, Mr Conway stated that it was his impression that had
Mrs Dyer had the training and the tools to do a health and safety
inspection then she would have done so properly. At this stage, I simply wish
to make it clear that, in my judgment, no criticism of any kind can
legitimately or properly be levelled at Mrs Dyer in respect of her
inspection of this butcher's shop on
Further undisputed background
matters
[31] It was not in dispute that
a butcher's business had been carried on at
[32] On or about 27 March 2005
there was a fire at the premises at
The
installation of the Rose Cooker Mark X RE at 434 Duke Street, Glasgow
[33] Mr
Steven John McEwan, who is an engineered employed by McNaughton & Watson,
explained in evidence that along with fellow employees he delivered this new
Rose cooker to the premises at
[34] It must be recorded that Mr James McNamara was a 53 year old witness who was hearing impaired. It must also be said that he did not always enunciate clearly and his evidence was often quite difficult to follow. On several occasions I had to remind him to tell us if he could not hear particular questions. Unfortunately, he also required glasses but did not have any available. Eventually, he was able to rely on using his wife's glasses to see particular productions which were put to him. During his evidence and, in particular, during examination by Mr Conway, Mr McNamara asserted that Messrs McNaughton & Watson "put the boiler in". On that particular matter I reject the evidence of Mr McNamara as being unreliable. I prefer the evidence of Mr McEwan which appears to me to have been given credibly and reliably. Mr McEwan's recollection appeared to me to be clear and reliable. However, I do accept that Mr McNamara did not deliberately seek to mislead this Inquiry. His recollection was that the boiler had been connected by an electrician. I have no doubt that that is so but the electrician was not employed by Messrs McNaughton & Watson. I shall return to the matter of the stability of the boiler later.
The statutory findings sought in
the respective closing submissions
[35] In his closing submission for the Procurator Fiscal, Mr Quither sought only findings in terms of section 6(1)(a) and (b). Mr Conway presented a full and helpful written submission which he amplified by a careful oral submission. Mr Conway sought findings in terms of section 6(1)(a), (b) and (c). In the event, he recognised that certain other matters which he raised under section 6(1)(a)-(e) were more appropriately dealt with by me in this Note. Mr Coll, on behalf of Glasgow City Council and Mrs Jane Dyer, presented a submission "to assist the court in its determination" and put forward a detailed review of the evidence. Mr Coll invited findings on particular matters, to which I shall later refer. He strongly submitted that on the evidence led there was absolutely no basis for any criticism of Mrs Dyer. As I have already dealt with this matter, it is not necessary for me to further expand that submission. Miss Gallagher presented a clear, detailed and focussed submission in which she sought particular findings in terms of section 6(1)(a) and (b). She further submitted that on the evidence led no findings were appropriate in terms of sections 6(1)(c), (d) and (e).
Section 6(1)(a) of the 1976 Act
[36] The finding which I have made in terms of section 6(1)(a) is uncontroversial. It is based partly upon factual matters which are admitted and partly upon factual matters which are not in dispute.
Section 6(1)(b) of the 1976 Act
[37] The finding which I have
made in terms of section 6(1)(b) proceeds upon my consideration of all the evidence
led and the competing submissions advanced to me. The principal issue of fact upon which
competing submissions were advanced related to why Mr Bolesworth had
fallen in the meat preparation room at about 16.30 hours on
The submission for the Procurator
Fiscal
[38] Mr Quither submitted
that on the acceptable evidence led I should hold that Mr Bolesworth
slipped and lost his footing. He based
his submission upon an entry in the medical records of Glasgow Royal Infirmary
(Crown production No 14) at page 75.
This entry is a "Patient Profile" relating to
Mr Bolesworth, which was completed in Ward 45 at 19.45 hours on
The submission for Mr Bolesworth's
son
[39] Mr Conway submitted that
Mr Bolesworth had slipped whilst approaching the Rose boiler, fallen
backwards and whilst falling grabbed the boiler causing it to topple over and
spill its contents over him. He accepted
that there was no direct evidence of this and the question was what inferences
could be drawn by the court from established facts. He submitted that it was established that the
floor of the premises was slippery when wet with water or with food
residue. He referred to the evidence of
Mr S Lenford Greasly, the joint expert instructed. There was no contrary evidence. Mr Conway submitted that it was
established that food spillages on this floor on an ongoing basis were
inevitable. He referred to the evidence of Mr Greasly, Mr Lang,
Mr Thomson, Mr Lavelle, Mrs Bell, Mrs Dyer and Mr McCracken.
Again there was no evidence to the contrary.
Next it was established as fact that a detergent based cleaner would be
required to remove the grease residue.
This was established by the evidence of Mr Greasly, Mr McCracken,
Mr Lavelle and Mrs Dyer. Further, the
cleaning regime in place was inadequate.
In the first place, the clean-as-you-go system consisted solely of a
brush up with no detergent used. This
was clear in the evidence of both Mr McNamara and Mrs McNamara. Moreover, their evidence as to the nightly
deep cleaning regime must be deeply suspect because Mr Lang said he could
see specks of food on the floor at the time of his inspection on
The submission for Mr McNamara
[41] Miss Gallagher submitted that, on the evidence led and in the absence of any statement taken by a local authority employee charged with investigating the accident, there were two possibilities. In the first place Mr Bolesworth lost his footing or, secondly, he slipped. She urged me to accept Mr McNamara's evidence and pointed out that he was a long-standing friend of Mr Bolesworth. She also pointed out that Mrs McNamara's evidence supported that given by her husband. Helpfully, Miss Gallagher reviewed the evidence of the medical records, Crown production No 14 at pages 33, 45, 46, 51, 75 and 78. Very properly, Miss Gallagher accepted that staff nurse Munro may have got the information from Mr Bolesworth that he had slipped. She accepted that there was no prior entry to that effect.
Discussion of evidence led and
competing submissions
[42] I have given prolonged
consideration to these competing submissions and to the difficult issues raised. The notes taken by Staff Nurse Munro appear
to have been taken at 19.45 hours at page 75. However, the note at 78 was taken at
[43] Mr McNamara stated in
evidence that he went up to see Mr Bolesworth in the Glasgow Royal
Infirmary on
[44] Mr Conway tested Mr McNamara's evidence fully during his examination of him. He put it to him that Mr Bolesworth had slipped. Mr McNamara denied this and stated that Mr Bolesworth had never said that he had slipped. It was then put to Mr McNamara that Mr Bolesworth had never said anything to him. Again Mr McNamara was emphatic that Mr Bolesworth had said the things he attributed to him. It was put to Mr McNamara that since the accident he had tried to avoid blame for Mr Bolesworth's accident. Mr McNamara stated that blame could not be put upon him for the accident.
[45] According to Mrs Carole McNamara, her husband told her that Mr Bolesworth had said that the accident was his "own silly fault": he had slipped/tripped and grabbed the boiler. Mrs McNamara went further and stated what a couple of customers who went to see Mr Bolesworth in hospital had told her. She mentioned a man "Andy" and a woman friend of Mr Bolesworth, whose name she could not recall. Mrs McNamara claimed that these people came to the shop on Hogmanay and said to her that Mr Bolesworth had said these things. During examination by Mr Conway, Mrs McNamara made it clear that she did not know whether Mr Bolesworth had slipped or tripped. She also made it clear that she would not use the phrase "lost his footing". She also stated that this was not an expression her husband, Mr McNamara, would use. Mrs McNamara accepted that the Accident Repair Form, Crown production No 16, was in her handwriting. Her evidence was to the effect that Mr McNamara would not have given her the wording. She knew everything that happened because she was there. She stated that she would have read it out to Mr McNamara before he signed it. The account contained at part G is "Mr Bolesworth told me later he decided to check stew, removed lid from boiler, lost his footing and pulled boiler over himself. We got him a seat and rang ambulance". Mrs McNamara did not claim to have received an account of the accident from Mr Bolesworth. Her evidence was that she got an account from her husband and also from "Andy" and the woman to whom I have referred, both having visited the premises at 434 Duke Street, Glasgow on 31 December 2005.
[46] I regarded Jacqueline Reid as an honest, straightforward witness who gave evidence without any hint of elaboration. I could find no manifest falsehood in her evidence. She impressed me as a person who told the truth in answer to the questions put to the very best of her ability. However, she did not get any account from Mr Bolesworth of what had happened to him. She was in the front shop at the time of the accident. Ms Reid confirmed that "Tommy said he did not want to go in the ambulance". She stated that he had asked her if she would run him up the road so that he could get a change of clothes. She asked him if he had wanted her to contact anybody but Mr Bolesworth had replied "No hen. I'm fine".
[47] Because the contents of the Rose cooker spilled out onto the floor of the meat preparation room, it is impossible to know whether Mr Bolesworth slipped on some small peace of meat which may have fallen to the floor during the course of his work. Mr Coll submitted that on the basis of Mr Greasly's evidence, Mr Bolesworth had not tripped. Neither Mr Conway nor Miss Gallagher submitted that Mr Bolesworth had tripped. Mr Quither submitted that he had slipped. I accept Mr Coll's submission to the effect that, on the basis of Mr Greasly's evidence, it is established that Mr Bolesworth did not trip. Miss Gallagher submitted that there were only two realistic possibilities: either Mr Bolesworth lost his footing or he slipped. She submitted that it should be held established that he had lost his footing and did not slip.
[48] But, another possibility, raised by Mr Coll, remains to be considered. Mr Conway accepted that it was possible that Mr Bolesworth had fainted or had a dizziness attack whereby he fell to the ground and pulled down the boiler on top of himself. However, Mr Conway went on to strongly submit that the acceptable evidence did not support a fainting or dizziness attack. I agree with Mr Conway that the post-accident diagnosis of hyponatremia appeared to be a component of Mr Coll's submission regarding the possibility that Mr Bolesworth suffered a fainting or dizziness attack which caused him to fall. I agree that this was not put to Mr Greasly or to Dr Hughes. Dr Hughes did accept that Mr Bolesworth's sodium readings were low. He stated that this was investigated but no conclusion was reached. But under reference to page 55 of Crown production 14 (the Infirmary records) Dr Hughes pointed out that Mr Bolesworth had denied any symptoms typical of the condition. Dr Hughes thought that a low sodium count was unlikely to be a factor having regard to the fact that there had been no previous neurological conditions. Mr Conway criticised in some detail the evidence given by Professor Anthony Busutill. His written submission is contained within the papers. Mr Conway had made it clear that he had considerable unease over Professor Busutill's evidence.
[49] I was very impressed by the evidence of Dr Eric Livingstone, who was Mr Bolesworth's general medical practitioner. He was a most experienced medical practitioner, who gave evidence clearly and in a straightforward way. Dr Livingstone was clear that a burning accident could cause a low sodium count. He pointed out that this was properly the field of a clinical biochemist or a general physician in working practice. However, I regarded his evidence as helpful because he stated that a drop in a person's sodium level was very rare. Dr Livingstone accepted that a seizure was a possibility. However, since Mr Bolesworth was able to call out for help, Dr Livingstone considered that this was an indication that Mr Bolesworth did not suffer a seizure. Dr Livingstone pointed out that normally there is amnesia after a seizure. He thought that the possibility of a seizure was contradicted by Mr Bolesworth's statement that he wished to return to work. He did not think that a dizzy spell was likely.
[50] Professor Busutill did not
have access to Dr Livingstone's records relating to Mr Bolesworth nor
did he speak to Dr Livingstone. I
accept that the medical practitioner records show regular sodium levels for
about 18 months prior to the accident and in particular, as at
[51] In my judgment, it is not established that hyponatremia caused Mr Bolesworth to faint or become dizzy and fall. I agree with Mr Conway that there is clear evidence that after the accident Mr Bolesworth called Mrs McNamara for assistance. It is clearly established that he was able to walk to the ambulance with the ambulance personnel. Mr Bolesworth wanted to be taken home so that he could get a change of clothing and come back to work. At no stage, either in the shop or at the hospital, did Mr Bolesworth suggest that he fainted. I accept and prefer the submissions of Mr Conway to those advanced by Mr Coll.
[52] During the course of his examination of the jointly instructed expert witness Mr Greasly, Mr Coll put that Mr Bolesworth might have slipped and fallen whilst standing and turning at the boiler. Mr Greasly accepted that this was not impossible but regarded this kind of accident as much less common in his experience. Mr Coll submitted that Mr Bolesworth's work station was close to the Rose cooker. The photographs comprising Crown production 1A and Crown production 2J were relevant. Small deposits of meat are shown on the meat table. It was possible that a small piece of meat may have fallen on to the floor and caused Mr Bolesworth to slip. Alternatively, condensation from the lid of the cooker falling onto the floor under Mr Bolesworth's feet might have caused him to slip.
[53] Mr Scott Thomson took the photographs which comprise Crown production No 1. Crown production No 1A shows the lid from the Rose cooker on the mincer. I agree with Mr Coll that, on the basis of the acceptable evidence led at this Inquiry, this lid would not normally have been there: it would normally have been sitting on the Rose cooker. Mrs McNamara was clear that the lid was on the mincer. Essentially this was for two reasons. The first was she saw it there and the second was that the lid was not on top of Mr Bolesworth's legs as he lay on the ground: the top open part of the boiler was on his legs. From this Mrs McNamara knew that Mr Bolesworth had been "in the boiler". Mr McNamara also confirmed that the lid from the Rose cooker was sitting on top of the mincer at the time of the accident.
[54] Mr McNamara was about
14 years younger that Mr Bolesworth.
I accept that Mr McNamara was very friendly with
Mr Bolesworth: they had been workmates for a good number of years. It was clear that he knew something of Mr Bolesworth's
family although he did not know where to contact them after the accident. In my judgment, it is likely that two
butchers working in a small butcher's shop together for a number of years would
get to know each other quite well.
Mr McNamara was aware that Mr Bolesworth was "bad with
his feet". He was aware that
Mr Bolesworth had certain health problems and that "he just wanted to
retire". There is no doubt that
Mr Bolesworth had certain health difficulties. Dr Livingstone
confirmed that, although Mr Bolesworth was an infrequent attender at his
surgery, he suffered from two main conditions, essential hypertension and
peripheral vascular disease, both of which were diagnosed in July 1999. He also
suffered from intermittent bilateral claudication and verrucas in both feet. However,
confirming his written report dated
[55] I accept the evidence of Mr and Mrs McNamara and Ms Reid to the effect that Mr Bolesworth was in the shop only to assist by making the sausages and was not asked to do heavy work. I am quite certain that Mr McNamara was pleased to have the assistance of Mr Bolesworth over the busy Christmas and New Year period. Normally, Mr McNamara was the only butcher working in the shop, the other butcher having left and having made a complaint about food hygiene which led to Mrs Dyer's visit. Accordingly, for all these reasons I reject Mr Coll's submission that Mr McNamara should not have allowed Mr Bolesworth to work. I am satisfied that Mr Bolesworth was fit enough to do the work which he agreed to do.
[56] In the period since Mr Bolesworth last worked regularly in the premises, there had been a fire and the pot boiler had been replaced with the Rose cooker. Whilst Mr McNamara accepted that he did not look at the manual which accompanied this new cooker, it was clear from Mr McNaughton that if a cooking bag was used then there was no need to stir the contents of the cooker during the cooking process. However, Mr McNamara did not use a cooking bag and continued to have to stir the boiler. In answer to Mr Conway, Mr McNamara made it clear that Mr Bolesworth and he had each stirred the pot boiler hundreds of times. In my judgment, it is established that this was something that an experienced butcher would do, even although this was a new cooker to Mr Bolesworth.
[57] Mr McNamara was adamant that no-one had ever slipped in the shop over the years. Whilst this may seem surprising given the expert evidence led at this Inquiry, it was also the evidence of Mrs McNamara, who asserted that she would have heard about any slipping or tripping. Ms Reid was clear that she had never experienced the floor being slippery in the back shop whilst Mr McNamara had the shop. She was not aware of anyone having had a problem with the floor. She was clear that if any of the "boys" spilled meat debris they picked it up and put in the bin. In my judgment, if a small number of experienced butchers were working in close proximity to each other in a busy small backshop, there would inevitably be the occasional spillage of meat debris onto the floor. This conclusion is consistent with the expert evidence led at this Inquiry. But it does not follow that there was necessarily any slipping incident as a result. Providing the competent butchers took care to deal with all meat spillages as and when they occurred, any slipping incident might have been avoided. On the evidence led there had been no previous accident. I have already indicated that I accept Ms Reid as a credible and reliable witness.
[58] In my judgment,
Mr McNamara did not set out to tell any deliberate lies to this
Inquiry. His recollection about certain
matters is plainly wrong. During Miss Gallagher's examination of him it
became clear that he was completely deaf in his left ear and wore a hearing aid
in his right ear. I do not think he was
lying in stating that he had respect and affection for Mr Bolesworth or in
stating that he was upset about the accident. I think that the fact of
Mr McNamara's visit to see Mr Bolesworth in hospital on
[59] Accordingly, I accept and
sustain the submission advanced by Miss Gallagher. I should note that she had some difficulty
with the issue of whether Mr Bolesworth had suffered a myocardial
infarction on
Section 6(1)(c) of the 1976 Act
[60] On the view which I have
taken as to the cause of the accident resulting in Mr Bolesworth's death,
I hold that there were not any reasonable precautions whereby the accident resulting
in his death might have been avoided. I
accept that Mr Bolesworth was employed only to do work in preparing
sausages. But, as a competent butcher
and a good and willing worker, when he thought the stew in the Rose cooker
needed stirring, he set about doing it.
As he was doing so he lost his footing and fell. In my judgment, it is not established on the
available acceptable evidence that Mr Bolesworth slipped. Accordingly, although
there were detailed submissions advanced in regard to the slip risk on the
floor, I do not consider that a slip or slipping was the cause of
Mr Bolesworth's accident. I accept Miss Gallagher's submission that
whilst the floor had a high slip risk and it was possible for this floor to be
slippy if a fatty deposit or meat residue got onto it, there is no satisfactory
evidence to conclude that Mr Bolesworth slipped. I accept the evidence of
Mr and Mrs McNamara and Ms Reid to which I have referred, which establishes
there was no prior slipping incident on this particular floor. I also accept that the floor was not slippy
when Mrs Dyer visited the premises unannounced on
[61] Mr Conway made a separate submission in regard to the Rose cooker. He accepted that if this cooker were free standing on non-slip floor it would not present any danger. He also accepted that this particular model also appeared to be a proprietary model, with an apparently accident free history. He did not suggest that there was any real risk of it overturning in day to day use. The problem which Mr Conway identified was that its usage was designed precisely for food premises, including butcher's shops, where conditions were such that spillages and consequent slips were entirely likely. Whilst the probability of the kind of fall which would cause the boiler to be upset or to topple over was not high, it was nevertheless a real risk: and the circumstances of Mr Bolesworth's accident demonstrated that there could be very grave consequences. Mr Conway submitted that, in the circumstances, it was clearly reasonable to require this cooker to be cabled up after Mr Bolesworth's accident but he did not go so far as to invite a finding that every Rose cooker should be cabled. He submitted that where no non-slip surface was provided, serious consideration should be given to whether the manufacturers should be advising purchasers that the cooker should be restrained or cabled up. Moreover, Mr Conway submitted that every employer, including Mr McNamara, had to carry out a risk assessment. He submitted that a reasonable precaution which might have avoided this accident would have been to cable up this cooker as was later done. He submitted that I could make this finding without in any way attacking the manufacturers of the cooker.
[62] Miss Gallagher submitted that it was not relevant that the cooker may have been unstable prior to the accident because, taking account of Mr Greasly's evidence, the force of being grabbed was sufficient to destabilise it and cause it to topple over. Moreover, Miss Gallagher submitted there was not sufficient evidence to show this Rose cooker was unsteady prior to the accident. The evidence of both Mr McNamara and Mrs McNamara was that it was not unsteady. This should be accepted as credible and reliable.
[63] As I have earlier mentioned, it is clear that this cooker was not installed by the suppliers McNaughton & Watson. On this matter I accept Mr McEwan's evidence in preference to that given by Mr McNamara, who I consider was simply wrong in his recollection. There was certainly clear evidence to the effect that after the accident this cooker and its base were found wedged in a way not intended by the manufacturers. I accept that it must have been wedged in this way prior to the accident. It may or may not have been easy to wedge the cooker and its base in that way. It may or may not be that a person might be quite unaware of having so wedged the cooker and its base. There was no detailed technical expert evidence regarding this or as to how this wedging might have been avoided. Mr McNamara conceded that he did not look at the manufacturer's manual supplied to him, a copy of which comprised Crown Production No. 6.
[64] Mr McNamara was unaware of
his statutory duty in terms of Regulation 3 of the Management of Health and
Safety at Work Regulations 1999 to carry out a risk assessment for the purpose
of identifying the measures he needed to take to comply with the requirements
and prohibitions imposed by or under the relevant statutory provisions in his
premises. Had he instructed a proper risk assessment, as required by these
regulations, to be carried out on his behalf, he would have received advice in respect
of whether the cooker required to be cabled up in some way, having regard to
the fact that the floor in the meat preparation room did not have a non-slip
surface. This matter might have been taken up with or discussed with the
manufacturers. But, as no formal intimation of this Inquiry was given to the
manufacturers of this cooker, it is inappropriate for me to make any
recommendation or observation which might affect them since they have not been
given the opportunity of being represented and putting forward their position
in the matter. I should add that, having
had the benefit of hearing Mr McEwan's evidence, it is my impression that
the purpose of having adjustable feet is to deal with uneven floors so that the
Rose cooker can be set up to be in a stable condition. As appeared from Mr McNaughton's
evidence, providing a cooking bag is used, there is no need to remove the lid
from the cooker and stir the contents during the cooking process. Accordingly, although
I see the force of Mr Conway's submission, in my judgment, it is
inappropriate for me to make recommendations or observations regarding the Rose
cooker arising from the evidence at an Inquiry at which the manufacturers had
no opportunity to be present or represented.
Sections 6(1)(d) and (e)
[65] In my judgment, no defect in any system of working which contributed to the accident resulting in Mr Bolesworth's death has been established and no finding in terms of section 6(1)(d) is appropriate. In my judgment, in terms of section 6(1)(e), there are no other facts which are relevant to the circumstances of Mr Bolesworth's death.
Further observations
[66] However, there remain matters upon which submissions were advanced and upon which I think it is appropriate for me to comment. Whilst these are not relevant, in the legal sense, to the circumstances of Mr Bolesworth's death, I hope that my observations will assist in the prevention of accidents in the future.
Small businesses must comply with
all relevant Health and Safety at Work legislation
[67] Until it closed in 2006, Mr
McNamara ran a small butcher's business at
Training by
[68] Mr Conway made a submission in regard to the actions of the Environmental Health Department of Glasgow City Council. Mr Conway did not argue that Glasgow City Council, as the local authority, had any duty of care towards Mr Bolesworth. However, as I have noted at para [12] above, the responsibilities for the investigation of accidents and inspection of premises in terms of the Health and Safety at Work etc 1974 and subordinate legislation made thereunder were and are discharged in respect of butchers' shops by the local authority and not by the Health and Safety Inspectorate. Mr Conway also recognised that there was no statutory requirement for a health and safety inspection in respect of any particular premises. The broad thrust of Mr Conway's submission was that Environmental Health Officers employed by the local authority were, at the material time, expected to do not only food hygiene inspections but also health and safety inspections. His submission was that they had not received sufficient training in regard to slipping hazards and had not received the necessary equipment to enable them to do what they should be doing in relation to slipping hazards during a health and safety inspection.
[69] Following upon the E-coli
outbreak at a butcher's shop in Wishaw in 1997, which caused the deaths of a
large number of people, various steps were taken to try and ensure that there
would be no like occurrence. New, more
stringent, food hygiene regulations were passed. In terms of the Food Safety (General Food
Hygiene) (Butchers Licensing) (
[70] A complaint had been
received by Glasgow City Council about general food hygiene matters at R.
McMillan, Butchers,
[71] The form which she required to complete comprised Crown Production No 7. It is entitled "Butchers' Licensing Inspection Form (HACCP)". This is an acronym for hazard analysis and critical control point. At all events, the form is in several different parts. Parts 1-4 relate to food hygiene. Part 5 relates to health and safety and is contained within one page. Mrs Dyer confirmed that she was there primarily to deal with a food hygiene inspection. So far as health and safety was concerned, she stated that she looked at all of the machinery in the shop. She was making sure that it was clean, having regard to its quality, stability and electrical fittings. So far as slips, trips and falls were concerned she was on the lookout for trailing leads. She was also concerned to note whether the floor was dry and clean and whether the surface was whole or broken. She explained that she carried out a visual practical inspection of this butcher's shop.
[72] There is no doubt that Mrs Dyer carried out a very full food hygiene inspection. She completed Crown Production No 7 but also prepared a very full report on her inspection of the premises. This is comprised within Crown Production No 8. Moreover, she served an improvement notice in terms of the Health and Safety at Work etc Act 1974 on Mr McNamara because the chute guard for the gravity feed slicing machine was missing.
[73] Mr Conway made no
criticism of Mrs Dyer, nor did anyone else who appeared at this
Inquiry. Mr Conway criticised the
evidence of Mr McCracken, the local authority Group Manager for Land and
Environmental Services: Enforcement Section.
Mr Conway submitted that it was clear from the evidence led at this
Inquiry that health and safety in butchers' premises was not considered seriously
or at all by the local authority unless it impinged upon food hygiene. Mr Conway stated that he was still in
confusion as to Mr McCracken's position as regards health and safety. Mr Conway accepted that when
Mrs Dyer inspected the floor of the meat preparation room in this shop on
[74] In my judgment, Mrs Dyer was a competent Environmental Health Officer who did know something about slips and trips. However, it was clear, as Mr Conway submitted, that she had not been given the training by Glasgow City Council which she required to enable her to do a health and safety inspection in the way which was expected and required by the then current advice given by the Health and Safety/Local Authority Enforcement Liaison Committee (HELA).
[75] The point which Mr Conway was making was that through no fault of her part, Mrs Dyer did not know anything about the Health and Safety Commission's agenda as regards "Revitalising Health and Safety". She was unaware that she was meant to be adopting a robust and critical approach. She was not aware of roughness meters or their use. She had not been to a specific training course on slipping in ten years. Mr Conway's submission was that the clear impression from Mrs Dyer's evidence, the evidence of Mrs Bell, Mr Lavelle and Mr McCracken was that this local authority was not doing what it should be doing as regards the prevention of slipping accidents in food premises, including butchers' premises.
[76] Relatives Production No 16
is the 2002 Annual Report of the Health and Safety Executive/Local Authority
Enforcement Liaison Committee (HELA). At
page 7, historical matters are narrated.
It is explained that the Health and Safety Commission revised its
Strategic Plan to address the recommendations arising from the Government's
review of the health and safety system in
[77] Relatives production No 17 comprises the HELA Local Authority Circular Number 40/5, issued in March 2002. HELA developed a new strategy to cover the period 2001-2004. During that period local authorities were to have regard to certain detailed issues set out in the annex during their preventative inspections. These issues were discussed and endorsed by HELA and provided local authorities with an agenda for inspection visits. Local authority inspectors were expected to address these issues during their inspections of premises. At para 10 it is stated that during visits to food/drink premises (including meat premises) local authority inspectors should promote/enforce compliance on the management of risks highlighted in the HSE publication, reprinted in 1999, Recipe for Safety. In particular they should concentrate on the management of slips risks. Further detailed guidance is given to enable inspectors to complete their task.
[78] Relatives production No 18 is another HELA local authority circular, number 77/1. It was issued in December 2004. This operational circular described a new Slips Assessment Tool (SAT) which had been developed to assist field staff in local authorities to assess pedestrian slipping risks and floors. At para 2, this circular referred to Regulation 12(2) of the Workplace (Health, Safety and Welfare) Regulations 1992 which made it an absolute requirement that floors should not be slippery so as to cause someone to slip, trip or fall. This circular pointed out that sometimes there may be little doubt deciding whether a floor is slippery, for example where there has been a history of slips, accidents or near-misses in a particular location. It continued that "in situations which are not so clear cut, for example an area of floor prone to contamination but without an accident history, it can be helpful to have some more object measure of slip risk potential. SAT provides that objective input". Mr Conway founded upon the fact that the Group Manager Mr McCracken accepted that he had not even seen this document. Moreover, as Mr Conway pointed out he had never heard of a sutronic duo meter.
[79] As summarised in his written submission, Mr Conway sought particular recommendations in respect of training of Environmental Health Officers. I have given anxious consideration to Mr Conway's submissions, which were clearly presented and cogently argued. Mr Conway invited the following recommendations:-
(1) all Environmental Health Officers receive training on slipping hazards, with particular reference to food retail premises;
(2) all Environmental Health Officers are made aware of Local Authority Circulars from HELA regarding the Health and Safety Executive "Revitalising Health and Safety" Agenda;
(3) in line with HELA Local Authority Circular 40/5 all Environmental Health Officers are encouraged to adopt a robust and critical stance to slipping hazards in food retail premises; and
(4) in line with Local Authority Circular 77/1 each team is supplied with a sutronic duo meter, that training is provided for Environmental Health Inspectors in its use and that it is used in the field in conjunction with the Health and Safety Executive slips assessment tool (SAT) described in family productions 13 and 18.
[80] As Mr Conway recognised,
there is no statutory requirement for a health and safety inspection of
butchers' premises. It is clear from the
undisputed expert evidence of Mr Lenford Greasly that the quarry tiled
floor in the meat preparation room of this butcher's shop was unsatisfactory
because it presented a high slipping risk when contaminated with fatty
deposits, which were likely to occur in the normal course of working and which
required detergent to remove them.
However, this does not mean that a visual inspection of this floor carried
out without the equipment which Mr Greasly had would necessarily result in it
being found to be in breach of the relevant regulations. On
Conclusion
[81] In conclusion, I should like to repeat and endorse the condolences which were extended to Mr Bolesworth's son, daughter-in-law and family by those appearing at this Inquiry at its conclusion. Mr Bolesworth's son was most ably represented by Mr Conway. Mr Bolesworth's daughter-in-law was present in court throughout most of this Inquiry. I hope that this Inquiry has served to give them a clearer picture as to the circumstances of the accident and why Mr Bolesworth subsequently died. I have tried to answer all the concerns raised in so far as I can but there are limitations as to what can properly be found at an Inquiry held so long after Mr Bolesworth's death and in a situation where the evidence led was deficient in the respects mentioned at the outset of this note.
[82] I am most grateful to Mr
Quither, Mr Coll, Miss Gallagher and Mr Conway who appeared at this Inquiry for
the most professional way in which they each presented their respective cases
and for their clear and careful closing submissions, which have been of great
assistance to me in preparing this determination.
SHMitchell.LD.Bolesworth