THE son of a man who died as a result of an Argyll and Bute Council health and safety blunder has expressed his anger at the level of fine imposed on the authority.

The council was fined £20,000 at Dunoon Sheriff Court on Wednesday after admitting failing to carry out a risk assessment on and providing appropriate barriers for Dunoon’s Coal Pier. Duncan MacGillivray (75) drowned after driving his car over the edge of the pier in September 2007.

As exclusively reported in the Standard two weeks ago, the council pled guilty to both charges.

Mr MacGillivray’s son, Duncan, called the Standard and said: “To say I am disappointed would be the understatement of the year.
“£20,000 is a paltry sum for a life. It is nothing to the council – not even a slap on the wrist.”
He added: “It’s a token fine to appease the health and safety people.”
Mr MacGillivray also alleged that Argyll and Bute Council had failed in its duty to inform the Health and Safety Executive (HSE) of a fatal accident on its property. He said that the matter only came to light a year after the accident when he contacted HSE for a copy of the report.
This was later confirmed by the HSE, with a spokeswoman saying: “I can confirm that any duty holder has a legal obligation to inform the HSE immediately if they are responsible for a fatality. In this instance, Argyll and Bute Council did not inform the HSE.
“However, it is not expected that any further charges will be brought against the council in relation to this matter.”
When informed of this development Mr MacGillivray asked: “Are the council deliberately ignoring the rules? Why are they not being prosecuted?
“Councils just do what they want – if that was you or I we would be in serious trouble.”

A spokeswoman for Argyll and Bute Council said: “We believed that, as the police were involved from the start, the incident would be treated as a road traffic matter. It was only when we were contacted by the Health and Safety Executive that we realised that this was not the case, and we then submitted a formal notification. The Health and Safety Executive accepted that situation.
“When there is a fatal accident in which the council has an involvement, there is a statutory requirement to notify the HSE within 10 working days. On this occasion, we did not carry out the notification because we understood that the police were investigating the incident. This turned out not to be the case.
“Both the police and the Procurator Fiscal fully accepted the council’s explanation.”

The Coal Pier was used unofficially as a car park until May 2006 when the council adopted it officially. In a previous hearing Sheriff McCaffrey summed up the situation by saying: “The council came along, painted some white lines, installed a machine to take money - then walked away.”

Following the case, HSE Inspector Mike Orr said: “Mr MacGillivray died in tragic and traumatic circumstances, ultimately drowning in the sea below the pier.
“A simple risk assessment would have identified the clear risks of an unprotected sheer drop into the sea at the edge of a car park – but sadly the council failed to do this.
“Argyll and Bute Council was responsible for the maintenance and operation of this charging public car park. When it changed the use of the pier, from a commercial site, it should have quickly identified any risks to members of the public. It’s simply not acceptable that this didn’t happen.”

State prosecutors the Crown Office have a specialist division which deals with Health and Safety crimes. It was the COPFS Health and Safety Division which brought the action against Argyll and Bute Council and the head of that organsiation, Elaine Taylor, said: “The tragic death of Mr MacGillivray was entirely avoidable and the failings accepted by the Council underline the vital need for suitable and sufficient risk assessment in order that organisations may conduct their business safely.

“Today our thoughts are very much with the family and friends of Mr MacGillivray and we trust that they can find some small comfort in the successful prosecution of those responsible for the incident that caused him to lose his life . We hope that lessons can be learned to prevent similar tragedies in the future.

“We will continue to work closely with those agencies who enforce health and safety legislation to ensure that those who are found to be failing in their duties are appropriately dealt with in the public interest.”

A spokeswoman for Argyll and Bute Council said: “Argyll and Bute Council deeply regrets that this accident was able to happen, and the distress that Mr MacGillivray's death brought to his family and friends.
“In deciding the appropriate level of fine, the sheriff took into account the fact that the council accepted that it had breached health and safety legislation and co-operated fully with the Crown.
“Following the incident, the car park remained closed to allow the council to carry out a detailed risk assessment both of the car park itself and of the pier.
“Actions carried out to prevent a recurrence before the car park reopened included the installation of a traffic barrier and pedestrian hand rails. These were in place, and the car park had reopened, by the time the Health and Safety Executive contacted the council in July 2008.
“All other Argyll and Bute car parks located on or next to piers were also re-examined to ensure that no similar problems existed, and all were found to be safe.”