HMA v Craig Services & Access Limited, Donald Craig and J M Access Solutions Ltd

At Airdrie Sheriff Court today, 6 January 2017, Sheriff Petra Collins sentenced Donald Craig to two years’ imprisonment for breaches of health and safety law after his company Craig Services & Access Limited hired out an unsafe cherry picker which buckled while it was in use, causing the death of Gary Currie. Craig Services was fined a total of £61,000 for breaching its duty to ensure that those using the cherry picker were not exposed to the risk of injury or death, for failing to maintain the equipment and for hiring it out when it had not been certified as safe. J M Access Solutions Ltd was also fined £30,000 for breaching its duty to ensure that those using the cherry picker were not exposed to risks of serious injury or death, by failing to carry out an adequate Thorough Examination.

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

“On 20 July 2012, at Buchanan House in Glasgow, Alexander Nisbet and Gary Currie were working in the basket of a cherry picker at a height of about 30 metres. Alexander Nisbet was operating the cherry picker. Gary Currie was removing netting from the façade of Buchanan House. 

Just after noon, Main Boom 3 of the cherry picker buckled, crashing the basket to the ground. Alexander Nisbet was seriously injured but survived the crash. Gary Currie lost his life. 

The cherry picker was owned by Craig Services & Access Limited, a company that hired out lifting equipment. The person who to all intents and purposes was the manager of that company, was Donald Craig. 

In running its business Craig Services owed a duty to Alexander Nisbet and Gary Currie to ensure, so far as was reasonably practicable, that they were not exposed to the risk of serious injury and death. Moreover the company was under an absolute duty to maintain the cherry picker in efficient working order and good repair. The company also had a duty to ensure the cherry picker was thoroughly inspected at least every six months.    

Craig Services breached all three of those duties. In all three of those duties Craig Services’ attitude to safety was cavalier. 

On charge 1, by unanimous verdict of the jury, Craig Services was found guilty of breaching its duty to ensure that those using the cherry picker were not exposed to risks of serious injury or death, by failing to maintain the cherry picker in a safe condition, in consequence of which the fatal accident on 20 July 2012 occurred. Donald Craig, who on the evidence was at the heart of every decision made in relation to the cherry picker, shares that guilt. 

To find out what went wrong, one can go back to 17 May 2011. On that day, in Penicuik, Main Boom 3 of the cherry picker buckled whilst it was in use.  The consequences of that could have been catastrophic, but the descent of the boom was halted by the roof of a block of flats. The cause of the failure of Main Boom 3 was never fully investigated, and remains a mystery. 

After the Penicuik incident, some nine months passed, during which time discussions about liability between Craig Services and the cherry picker’s manufacturer’s representative – a company called CTE Spa – got nowhere.  CTE Spa advised replacement of at least Main Boom 3 of the cherry picker.  Craig Services was not prepared to do that. 

Given that it had not been established why Main Boom 3 had buckled at Penicuik, on an objective view, a decision not to replace the boom at that time was justifiable. However, it was what happened next that set in train a series of unfortunate events, culminating in the fatal accident at Buchanan House. 

Craig Services decided to repair Main Boom 3. On 10 February 2012 Donald Craig told CTE Spa that by e-mail. No discussion about the propriety of that approach ever took place between Mr Craig and CTE Spa. Craig Services did not have any manufacturer’s approval or manufacturer’s specification in relation to the proposed repair.   

A matter of days later, Craig Services instructed a firm of welders to carry out the repair. The owner of that firm is called Mr Thomson. 

Given the extent of damage to Main Boom 3, it was obvious that the job would involve a major repair and an extensive modification of Main Boom 3. Before the job started, Donald Craig told Mr Thomson that Main Boom 3 was going to be nested inside Main Boom 2. 

Whilst the repair was being undertaken Donald Craig gave that same assurance to the welder who carried out the job, stating that the cherry picker would be used as a short-reach machine only. The repair was carried out on that understanding. 

The significance of the assurances that Mr Craig gave was that, had Main Boom 3 remained nested in Main Boom 2, Main Boom 3 would not load-bear. In fact, at no time did Craig Services carry out any modification to the cherry picker to ensure Main Boom 3 did not load-bear. 

The only other information that Craig Services supplied to the welding firm was an e-mail from a metallurgist. Despite already knowing from CTE Spa the steel’s correct composition, Craig Services instructed the metallurgist to carry out an analysis of the steel used in Main Boom 3. 

With tragic results, the information in the metallurgist’s e-mail, was confusing, erroneous in essential parts, and unhelpful. The welding firm, through no fault of its own, acted on the erroneous parts of that e-mail, and proceeded to carry out the weld repair using steel which was not nearly strong enough for the job. 

By the time the repair was completed on 21 February 2012, the cherry picker was an accident waiting to happen.  

That should have been academic, because the law requires that after a major repair the cherry picker should not be put back in service until certified as safe to use by a fully qualified person called a Thorough Examiner.  Craig Services knew that. 

Despite knowing that, in March 2012 Craig Services in fact hired out the cherry picker at four addresses in Glasgow, when it had not been certified as safe to use. That breach of duty by Craig Services constitutes charge 3 on the Indictment. 

Meantime, Donald Craig repeatedly asked a Thorough Examiner called Mr Alexander to inspect the cherry picker. Donald Craig told Mr Alexander that the repaired section of Main Boom 3 would nest in Main Boom 2. Mr Alexander repeatedly refused to carry out a thorough examination on the basis that the repair had not been approved by the manufacturer. 

Knowing that, Donald Craig then proceeded to pester the welding firm for a ‘guarantee’ for the repair, for the purpose of getting the cherry picker through its Thorough Examination. The welding firm eventually supplied, not a guarantee, but a completion report, describing the repair process. There was no reference in the completion report to any manufacturer’s approval. 

Donald Craig then turned to John McCallum. He is a Thorough Examiner, and at the time was the sole employee of J M Access Solutions Ltd. The only documentary information that Mr McCallum was given was the welding firm’s completion report. 

Donald Craig told Mr McCallum that the manufacturer supplied the information for the repair. In doing so, Donald Craig lied to Mr McCallum. In the result Mr McCallum thought the repair was carried out to the manufacturer’s specification.  

Donald Craig also told Mr McCallum that CTE Spa had said it was ok for the cherry picker to be repaired. Donald Craig lied about that too. 

The process of any Thorough Examination is a rigorous one, in which the Thorough Examiner must not assume that anything is safe. 

Mr McCallum accepted what Donald Craig told him, without looking behind it. He did not carry out any load-test on the repaired cherry picker, he did not carry out any other test on the repaired section, he did not contact the manufacturer, or any other professional competent person, such as a skilled engineer in the field.  

His inspection of the cherry picker, to ensure that it was safe after its major repair, was restricted to a visual inspection only. On 27April 2012 he certified the cherry picker as safe to use. 

In the circumstances of this case, the jury found J M Access Solutions Ltd unanimously guilty of charge 5 on the indictment, namely breaching its duty to ensure that those using the cherry picker were not exposed to risks of serious injury or death, by failing to carry out an adequate Thorough Examination, in consequence of which the fatal accident on 20 July 2012 occurred. 

At some point before the cherry picker was hired out on 20 July 2012 Donald Craig and Alexander Nisbet, the cherry picker operator, had a discussion about how the cherry picker was to be used. Donald Craig told Alexander Nisbet that it was up to him how the cherry picker would be used, but said he’d ‘prefer’ if Mr Nisbet ‘shortened the outreach’. In saying that, Donald Craig attempted to abrogate Craig Services’ responsibility for safety, and foist it onto Mr Nisbet’s shoulders. 

On 20 July 2012 at Buchanan House, Main Boom 3 buckled in the repaired area. On the evidence, the failure of Main Boom 3 was inevitable.   

After the fatal accident Mr Thomson, on reading about it in a newspaper, phoned up Donald Craig. Mr Thomson said ‘I thought you were going to use the cherry picker as a shorter machine?’ Mr Craig replied ‘I thought it would be ok’. 

On recovery of the cherry picker, after the fatal accident, it was clear that it was in generally poor condition and there was evidence of poor maintenance. In particular safety features on the cherry picker had been deliberately bypassed. 

That breach of duty by Craig Services constitutes charge 2 on the indictment. It is obviously reprehensible that the cherry picker was not maintained, but it is important to note that its poor maintenance was not a contributory cause of the fatal accident. 

And so I come to the question of sentence. 

I should emphasise that I have to sentence the companies and Mr Craig for breaches of health and safety law. The sentences I am about to impose cannot and do not attempt to reflect the enormity of Mr Currie’s death, nor the suffering of his loved ones. My powers of sentence are constrained by statute, but also appear constrained by the current status of both companies. 

I have considered the liquidators’ report for Craig Access, what financial information I have in relation to J M Access Solutions Ltd, the background report in respect of Mr Craig, the letters from two family members, and what has been said in mitigation.  

I have also had regard to the 2015 Guideline from the Sentencing Council of England and Wales, and to the recent Scottish case of Scottish Power Generation Ltd v HMA [2016] HJAC 99, in which the Appeal Court comprehensively reviewed sentencing in this area of the law.  

Neither Craig Services & Access Ltd nor J M Access Solutions Ltd is represented in these proceedings. Craig Services is in liquidation, and J M Access has apparently ceased trading. It has not lodged any accounts since 2012. 

Both were small companies. On the financial information available to me there is no realistic prospect that any fine I impose will be paid by either company. 

It follows that each companies’ means, or absence of means, is not a factor which weighs heavily in the balance of a more modest fine. Indeed, if I was to impose modest fines, in my view that would not reflect the culpability of the companies here, in what are extremely serious breaches of the law. 

The only mitigation I can see in relation to each company is that it has no previous convictions. The fines I impose will serve to mark society’s condemnation of each company’s conduct, and may act as a deterrent to others. 

On charge 1, being the breach of Craig Services duty to ensure that those using the cherry picker were not exposed to the risk of injury or death, I impose a fine of £50,000. 

On charge 1, I turn now to Mr Craig. 

On the evidence, in the circumstances of this case it was imprudent for Mr Craig to embark on a repair of Main Boom 3 in the first place. Having decided to take that imprudent course, Craig Services had a duty to ensure that the cherry picker was safe. 

The only inference that can be drawn from Mr Craig’s various assurances that Main Boom 3 of the cherry picker would not be used to load-bear, is that he believed, or at the very least, suspected, that the repaired section could not be used to load-bear safely.  

Despite that, Mr Craig did nothing constructive to nest Main Boom 3 in Main Boom 2, and everything he could to push the cherry picker back into service. That included lying and misleading others, attempting to foist Craig Services’ responsibility for safety onto others, and in fact hiring out the cherry picker.  

In doing all that, Mr Craig gambled with the lives of those using the cherry picker, with fatal consequences on 20 July 2012. 

Mr Craig’s breach of duty is so serious, and had such tragic consequences, that I can see no alternative other than a custodial sentence. The maximum custodial sentence I can impose is one of two years’ imprisonment. 

I sentence you to two years’ imprisonment. 

On charge 2, being Craig Services failure to maintain the cherry picker, I impose a fine of £1,000. 

On charge 3, being Craig Services’ hiring out of the cherry picker when it had not been certified as safe, I impose a fine of £10,000. 

On charge 5, being the breach of J M Access Solutions Ltd duty to ensure that those using the cherry picker were not exposed to the risk of injury or death, J M Access should have picked up the unsafe nature of the weld repair to Main Boom 3. Its thorough examination of the cherry picker was woefully inadequate to do so.  

Had J M Access done its job properly on 27 April 2012, the cherry picker would not have passed its Thorough Examination, and would not have been in service on 20 July 2012, and the catastrophic events of that day would not have happened. 

On charge 5 I impose a fine of £30,000.”