HMA v SW GLOBAL RESOURCING LTD

At Kilmarnock Sheriff Court on 15 September 2014, SW Global Resourcing Limited were fined £200,000 by Sheriff Alistair Watson after the company pled guilty to health and safety breaches which resulted in the death of an employee.

On sentencing, Sheriff Watson made the following statement in court:

“On 13 April 2010 Leslie Watson reported for his work carrying out repairs to the railway viaduct at Stewarton in Ayrshire in the course of his employment with SW Global Resourcing Ltd. In line with his normal duties of previous days Mr Watson was elevated in a MEWP to the height of the bridge and carried on grouting duties there.

On the material before me it would appear that Mr Watson was not wearing a harness which had been provided to him and which ought to have attached him to the basket of the MEWP. In the event his likely failure to have worn a harness almost certainly had no effect on the tragic events which followed and on the catastrophic outcome.

As Mr Watson worked at height the machine on which he was carried was stationed on the sloping embankment at the side of the bridge on a level concrete plinth which had been built for the purpose. The plinth itself had no retaining wall or edging and the surface area of it was not much greater than the wheelbase of the MEWP which carried him.

For reasons which cannot fully be known Mr Watson appears to have operated the machinery within the basket of the equipment causing the MEWP itself to begin to move and within a very short distance of travel the machine toppled from the edge of the plinth causing Mr Watson to be thrown to the ground to his death.

SW Global Resourcing Ltd have accepted criminal liability for their failures to ensure Mr Watson’s safety and for their failure in their obligation to take steps to avoid the accident which occurred. It is my duty to consider the appropriate penalty which should be imposed upon them for those failures.

In assessing the appropriate punishment it has been said [in the case of HMA V Munro and Sons (Highland) Ltd] that the court has to take account of the public interest in punishing culpable failures to pay due regard to safety and the consequences of such failures. What I cannot do, and what the court can never do, is try to put a value on Mr Watson’s life.

My punishment is not intended to represent any sort of value for the life of Mr Watson which cannot be expressed in monetary terms.

In mitigation I take account of the fact that generally SW Global Resourcing does appear to have a very responsible approach to the safety of its workforce. I have also had regard to, and taken account of, their acceptance of responsibility, their appropriate response to the tragedy and their cooperative approach to the investigation of this tragic accident. I will also give allowance in due course for the fact that they have resolved this case at an appropriately early stage and without the matter ever coming to trial or approaching trial.

I also have regard however to the fact that the risk assessments which were carried out here were ultimately woefully lacking. To have an untrained operator atop a platform resting on a plinth which is not much bigger than its own wheelbase meant that the risk ought to have been obvious to the employer. Further, the potential for any accident to have a catastrophic result was very high.

Despite these factors, and despite the fact that a Mr James Hall, an employee of the accused company, had in fact shown a recognition of these risks prior to the occurrence of the accident and had taken some steps to attempt to alleviate the risk, albeit that his proposed steps may in practical terms have been ineffective, the circumstances I have described were allowed to prevail until the accident occurred.   

Accordingly I have regard to the fact that the risk was one of very serious harm and of course death actually occurred. The likelihood of a catastrophic outcome if the equipment was moved was very high and the actual steps taken to prevent movement of the machine were poor. Even absent any form of retaining wall or barrier on the plinth, had the mechanisms for the operation of the equipment been locked off as they ought to have been then this accident would never have occurred.

I take the view that I also have to attach some weight to the previous conviction of the company albeit I am prepared to accept that this was not closely related in fact or in time to the present matter. I am also prepared to have regard to the fact that they appear to have been the minor rather than the major contributor in that case.

Accordingly having regard to the financial profile of the company, its ability to meet a financial penalty and having regard also to the various cases to which I have been referred, along with the helpful guidance given by the English definitive sentencing guidelines, I assess the appropriate starting point for a penalty in this case to be £300,000. Having regard to the appropriately early resolution of the case I will modify that penalty to a fine of £200,000.

As I said at the outset of this determination nothing which this court does can properly comfort or compensate Mr Watson’s family for the untimely and tragic loss of their loved one.  I am sure however that Mr Watson’s family will hope that lessons will have been learned from this tragedy which may avoid anything of this nature happening again to anyone else who may require to work in similar circumstances.”