A company director guilty of being responsible for the death of a decorator who fell from a mobile platform in a Perthshire town has failed in an appeal against his conviction.
Kevin Bowie was found guilty last year of health and safety breaches which led to Michael McArthur dying in central Doune in September 2018.
The 26-year-old had been working six metres above the street in a cherry picker when it was struck by a passing bus, causing him to lose balance and plummet to his death.
He had not been wearing safety equipment and the mobile elevated work platform (MEWP) was not segregated from traffic.
Bowie, 39 – who was sentenced to 300 hours unpaid work and 18 months supervision – argued the sheriff had erred in ruling the negligence had lain with him.
His lawyers argued Bowie was not an expert on the equipment but had believed Mr McArthur was qualified to operate it.
Appeal judgement
A trio of sheriffs rejected the appeal.
In a judgement made public on Friday, Sheriff Patrick Hughes said the fault lay with Bowie.
He wrote: “He was the company’s sole director; made the contract which necessitated the use of the MEWP; hired the MEWP; engaged the deceased to operate it; and was initially present as the work commenced, at which point it was apparent that no measure to segregate the MEWP from traffic – or indeed to ensure safe working through any other mechanism – was in place.”
He pointed out the danger should have been apparent to Bowie.
“For example, one of the civilian eyewitnesses who saw the MEWP operating prior to the collision – a person without any experience of such equipment – had thought that “it doesn’t look safe”, was “shocked” that the MEWP had nothing protecting it from traffic, and had said at the time “that’s an accident waiting to happen”.
He added: “The risk was obvious, the circumstances were known to and under the control of the appellant, and the sheriff was justified in finding that the company’s failure to comply with its duty was attributable to the appellant’s neglect.
“Company directors in the position of the appellant cannot simply slough off responsibility to their employees.”
Sympathy for accused
After the trial at Falkirk Sheriff Court, Sheriff Simon Collins KC expressed sympathy for Bowie, from Cumbernauld, the owner and sole director of Denny-based Precision Decorating Services (Scotland) Ltd.
He said: “He and the deceased were good friends and by his death the accused has suffered loss as well.
“It seems to me he likely allowed his personal friendship with the deceased, and perhaps also the deceased’s strong personality, to [lead him to] defer to him in what was acceptable in relation to the safe operation of the MEWP.
“The lines of responsibility became blurred.
“He failed to recognise that the buck ultimately stopped with him.”
Sheriff Collins said his decision should “not be taken to mean that Mr Bowie was solely or even mainly responsible” for Mr McArthur’s death.
“The driver of the bus was also clearly at fault for her misjudgement,” he said.
He added why the driver was not prosecuted for causing death by careless driving “is not a matter for me”.
The family of Mr McArthur, from Rothesay, were awarded £315,000 in damages from coach operator Timberbush Tours and its insurers at the Court of Session in 2021.
Mr McArthur, a Celtic fan, was remembered at a later Hoops home game with a 26th minute two-minute silence.
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