HMA v BELFINGER SALAMIS UK LIMITED

At Aberdeen Sheriff Court on 2 February 2015, Sheriff Graeme Napier imposed a fine of £100,000 on Belfinger Salamis UK Limited after the company pled guilty to health and safety breaches which led to the death of Lee Bertram.

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

“I appreciate that there is nothing that I can do, or say, in this court that can compensate for the tragic death of Lee Bertram. I have been told that family members are in court and I take this opportunity to express my sympathy to them. This must have been a difficult time for them particularly as this matter has taken some three-and-a-half years to be presented to the court for the first time.

The circumstances of this incident have been clearly explained to me in a very full narration by the Procurator Fiscal Depute. Counsel for the company has not shied away from the serious consequences of their breach of their responsibilities under the relevant Work at Height Regulations. I am conscious that when a case such as this is considered in court there may seem to be a rather clinical attitude on the part of those involved, who may seem to be distant or disconnected with the realities of the offshore environment in which this incident played out. That however is simply the manifestation of professional objectivity. I for one have some familiarity with that environment having at one stage in my career specialised in dealing with this type of case. I have visited the Brent field on a number of occasions. I do not underestimate the harshness of the environment in which individuals such as Lee Bertram work. They are entitled to look to their employers and those responsible for designing their work to place safety of the staff at the top of their list of priorities.

I am told by counsel that the company do take the safety of their employees seriously. They appear to have a good record and I am told that with a pool of some 2000 employees and contractors and four million man hours of offshore work in 2014 only one reportable loss of time injury was recorded. That is an enviable record and nothing said by the Crown contradicts that position. There are of course no previous convictions libelled.

That said the company have pled guilty to a contravention of section 33 (1) (c) of the Health and Safety at Work etc Act 1974 by contravening Regulation 4 of the Work at Height Regulations 2005.

Health and safety offences embrace a wide level of culpability – from the minimal to the very grave. These Regulations impose health and safety requirements with respect to work at height, with certain exceptions. They give effect as respects Great Britain to Directive 2001/45/EC of the European Parliament and of the Council amending Council Directive 89/655/EEC concerning the minimum safety and health requirements for the use of work equipment by workers at work. They contain additional provisions, including provisions which replace regulations giving effect to certain provisions of Council Directives 89/391/EEC concerning the minimum safety and health requirements for the workplace and 92/57/EEC on the implementation of minimum health and safety requirements at temporary or mobile construction sites.

The Regulations—

(a) impose duties relating to the organising and planning of work at height (regulation 4);

(b) require that persons at work be competent, or supervised by competent persons (regulation 5);

(c) prescribe steps to be taken to avoid risk from work at height (regulation 6 and Schedule 1);

(d) impose duties relating to the selection of work equipment (regulation 7);

(e) impose duties in relation to particular work equipment (regulation 8 and Schedules 2 to 6);

(f) impose duties for the avoidance of risks from fragile surfaces, falling objects and danger areas (regulations 9 to 11);

(g) require the inspection of certain work equipment and of places of work at height (regulations 12 and 13 and Schedule 7);

(h) impose duties on persons at work (regulation 14);

(i) provide for exemptions from certain provisions (regulations 15 and 16); and

(j) amend, repeal or revoke certain enactments (regulations 17 to19 and Schedule 8).

In this case the accused company has accepted that between 5 April and 16 June 2011 it did not comply with the duties incumbent on it in the way that has been fully explained in court earlier today. This is summarised in the indictment as being a failure to ensure that work at height was properly planned and carried out in a manner which, so far as reasonably practical, was safe; in that employees carried out rope access work on the cellar deck of said platform when they had failed to identify and put in place suitable and sufficient measures to protect ropes against sharp edges and prevent said ropes being cut, and in consequence of these failures on 16 June a 37-year-old employee who had worked with the company for about one year and at the time was suspended just below the cellar deck on Shell’s Brent Charlie Oil production platform, fell to the sea below sustaining such severe injuries that he died that day.

I require to select a sentence in relation to the charge before me having regard to the whole circumstances of this particular incident and in particular the agreed narrative. In doing so I am required by the appeal court to take cognisance of a number of factors which are special to this case and also such guidance as is available from a number of decisions of the appeal court the English Court of Appeal and the Definitive Guideline from the Sentencing Guidelines Council in England on Corporate Manslaughter and Health & Safety Offences Causing death.

In those Definitive guidelines there is recognition that the factors affecting seriousness will be very wide indeed. Normally judges are required to assess seriousness by asking: 1) how foreseeable serious injury was with the level of gravity rising with foreseeability; 2) how far short of the applicable standard the accused fell; 3) how common such a breach was; and 4) how far up the organisation the breach went.

It seems to me that given the foreseeability of serious injury I should treat this breach as serious. However none of that factors set out above seem to me to apply here. A number of mitigating factors do.

The principle considerations that seem to me relevant in the present case are those referred to by Lady Dorrian in the Scottish Sea Farms case to which I was referred, namely:

(a)    Where death occurs as a consequence of the breach that is an aggravating factor (with multiple deaths treated as more serious). In this case this factor applies.

(b)   A breach with a view to a profit is a serious aggravation. No material was presented to suggest this applies.

(c)    The degree of risk and extent of the danger and in particular whether it was an isolated incident or one continued over a period. Although the incident itself might be regarded as isolated, the breach which led to it continued over a period without correction. The extent of the danger to someone suspended at that height over the sea and the structures between there and the deck is clearly high.

(d)   Mitigation may include (1) prompt admission of responsibility as I am invited to conclude applies here; (2) steps taken to remedy deficiencies (and here I pause to note that it may be of some comfort to the family to know that not only this company but the wider industry has taken steps to enhance training upgrade guidance and improve back-up safety devices); (3) and a good safety record, which I am told the company has something with which the Crown does not disagree. Certainly there are no prior convictions.

(e)     The resources of the offender, including the effect of any fine on its business. This is a profitable company. Counsel drew my attention to its financial accounts for the 3 years to December 2013. It is sufficient to note for present purposes that in the last accounts seen by me the turnover was some £177 million and the profit after taxation some £10 million. I am reminded, however, that although the fine should reflect the means of the offender it cannot be said to stand in any specific proportion to turnover or profit. The objective of a financial penalty is said to be to achieve a safe working environment for the public and to bring that message home not only to those who manage the corporate offender (and I acknowledge that 2 members of the board of directors are in court) but also to those who own the company.

In the definitive guidelines it is noted that the range of seriousness involved in Health & Safety offences is greater than in the unique English charge of corporate manslaughter, where the appropriate fine is said to be normally at least £500,000. In health and safety cases it is said that where death occurs as a result of the breach the appropriate fine will seldom be less than £100,000 and may be measured in hundreds of thousands of pounds or more.

Given all that I heard and given the serious view I take of this breach, but taking account also of the various migratory factors it seem to me that the appropriate starting point for sentence is a fine of £150,000. As happened in the Scottish Sea Farms case I will apply a discount of 1/3 to reflect what the Crown agreed is the significant utilitarian value of the plea. I will therefore impose a fine of £100,000 on the company.”