HMA v Allenbuild Limited

At Edinburgh Sheriff Court today, 1 February 2019, Sheriff Norman McFadyen fined Allenbuild Limited £600,000 for a contravention of Regulation 27(1) of the Construction (Design and Management) 2015 Regulations and the Health and Safety at Work etc Act 1974, section 33(1)(c) on 5 December 2016 at the construction site of the Engine Yard, Leith Walk Edinburgh, also known as Shrubhill, which resulted in the death of Vincent Ramsay, a labourer who was working there.

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

“Allenbuild Limited accept that, as the principal contractor for the redevelopment of the former bus and tram depot, they failed to organise the construction site in such a way that, so far as was reasonably practicable, pedestrians and vehicles could move without risks to health or safety in that they failed to ensure that pedestrians were not carrying out work on or near traffic routes whilst vehicles were in operation, in consequence of which Vincent Ramsay, who was a labourer engaged in pile mark respraying, was struck by a dumper truck and sustained fatal injuries.

“It was Allenbuild which had the overall duty to organise the construction site in a way that, so far as was reasonably practicable, pedestrians and vehicles could move without risks to health or safety. The redevelopment at the site was to include housing and an underground car park and it was in the area of the projected underground car park that the accident occurred.  That part of the site was accessed by a dirt ramp and the accident was near the bottom of the ramp.  There were a number of sub-contractors working on the site, undertaking excavation and drainage works, piling works and environmental cleaning works in the engine sheds.

“Vincent Ramsay was 55 years old, was married and is survived by his wife and four adult children.  He was employed on the site as a labourer via an agency and he had worked there since construction began in August 2016.  He was highly thought of by colleagues and regarded as hardworking and conscientious.  His general duties involved keeping the site compound and welfare area clean, salting paths in bad weather and erecting and dismantling fencing as required.  He was known for trying to keep busy and would often ask others if there were any jobs he could do for them. 

“His line manager was the site manager and he was not directly supervised by any one individual on site.  He spent a significant amount of time assisting the site engineer setting out pile markings and respraying them if required.  Pile markings are steel pins which mark the location of the over 1000 steel piles which were intended to provide stable foundations on the site and an “X” would be spray-painted on the ground as an additional visual marker.  While Mr Ramsay often worked alongside the site engineer he was known to work on his own initiative and without instruction respraying pile markings which may have been washed away or rubbed out by vehicles and the site manager and site engineer were both aware of that.

“It was such a task on which Mr Ramsay was engaged when he died and he was undertaking that task, as he would sometimes do, without specific instruction to do so.  A dumper truck which was carrying excavated earth had stopped to allow other vehicles on the site to manoeuvre.  Mr Ramsay was crouched down to respray a pile marker with spray paint.  The driver of the dumper truck, which had restricted visibility in the area immediately to the front, because of the skip, which sits to the front of the driver and its load, had not seen Mr Ramsay and, when the traffic in front of him had cleared moved forward, striking and running over Mr Ramsay.   The driver’s attention was immediately engaged by another driver who did see Mr Ramsay, but he was found to be unresponsive, did not respond to resuscitation and was pronounced dead a little later.

“The 2015 Regulations provide that ‘a construction site must be organised in such a way that, so far as is reasonably practicable, pedestrians and vehicles can move without risks to health or safety’.  The Health and Safety Executive has published guidance which makes it clear as regards construction sites that safe workplaces are achieved by separating pedestrians and providing hazard free traffic routes.  The company should have recognised that there were instances where site personnel were required to access the underground car park area on foot and that they would have to carry out work either on or near to traffic routes used by heavy plant.  As such the company should have taken measures to ensure that such pedestrians were not at risk of being struck by moving plant and the easiest way to achieve this would have been to ensure that all works on foot in the underground car park area were scheduled so that they did not coincide with times when plant would be operational there.  Access by pedestrians should have been prohibited outwith these scheduled times.

“After the accident all work stopped on the site and it was agreed that the piling works would not resume until the bulk excavation works had been completed, thus preventing any work on foot taking place while heavy machinery was operating.  The company took immediate advice from an external health and safety consultant and revised their traffic management plan to implement additional segregated pedestrian access leading from an existing segregated walkway to the top of the dirt ramp and along the side of the underground car park, installed a physical barrier to demarcate the piling zone within which only vehicles used by the piling team would be permitted and implemented additional rules preventing pedestrians not engaged on piling works being within the car park and outwith the segregated pedestrian areas.

“In mitigation it was stated on behalf of the company that it had been in business for 70 over years and had no previous convictions. It had pled guilty at the earliest opportunity. The company had an excellent health and safety record and a strong health and safety culture.  The work at the site had commenced in August 2016 and the company had put in place measures to ensure the project was conducted safely, including traffic management plans and regular inspection and audit by their own supervisors and external health and safety consultants. It was not a congested site and in the early stages there were few vehicles and personnel there. At the time of the accident the principal issue was pedestrian access across the site to a building at the rear and segregated access was established.  Pedestrian segregation for the workforce was established from the welfare premises to the point where work was undertaken and in respect of movement of vehicles where necessary a banksman would be engaged.  The site was generally operated in such a way that those on foot and in vehicles would be kept separate, although it was accepted that there was a failure in respect of the activity of Mr Ramsay.  It was accepted that steps should have been taken to supervise him more closely.

“The company had taken immediate and robust action following the accident and cooperated fully with the HSE.  The offence was wholly out of character.   The company was a member of the Considerate Constructors Scheme which monitors industry standards and which can and does attend sites unannounced to carry out an audit.  On average there are two such visits at each site at which the company has operated.  In the last five years the company has obtained 57 certificates of performance beyond compliance with the relevant standards. 

“It was accepted that the company is a large one, as defined in the Definitive Guideline of 2016 of the Sentencing Council for England and Wales, having a turnover of £84m, £91m and £131m respectively in the three years until 2018.  It was accepted that the court was entitled to consider the Guideline and in the absence of direct domestic precedent should do so, but it was suggested that in making an assessment of culpability, the appropriate assessment was of low culpability, because there were traffic management plans and pedestrian segregation in place and being implemented, albeit they did not prevent this accident.  The level of risk of harm was properly assessed at the highest level, because of the death, but it was submitted that the likelihood of harm was properly seen as medium.  If the case was approached in the manner suggested in the Guideline, it would be placed in the range for a large company with low culpability in a category where the starting point was a fine of £100,000 and the range was £35,000 to £250,000.   There were no aggravating factors, but there were mitigating factors, in particular in respect of the company’s good record and generally effective health and safety procedures.

“Taking a broad view of culpability and harm in this case and also of the mitigating factors without specific reference to the Definitive Guideline, I would consider that a reasonable starting point for a fine would be around £750,000.  I will elaborate on some of that reasoning with specific reference to the exercise set out in the Definitive Guideline, which it is accepted provides a useful cross-check and some aspects of which would apply to any sentencing calculation.

“If the circumstances are examined with reference to the Definitive Guideline it cannot be said that the degree of culpability is low: the failings were not minor and the particular risk was not addressed at all.  The extent of the measures put in place after Mr Ramsay’s death is an indication of the inadequacy of the systems in place. Equally, I accept that the degree of culpability does not reach the somewhat egregious standard of high culpability.  This was a company which generally took health and safety seriously and had plans and systems, albeit inadequate to deal with the situation of individual workers who were operating on the ground when plant was moving about.  It seems to me that the level of culpability properly falls in the medium category.  

“In assessing harm it is necessary to identify seriousness of harm risked and the likelihood of that harm.  It is accepted that the level of seriousness of risk is at the highest in light of the death of Mr Ramsay and, given the well-known problems of visibility from heavy trucks, the likelihood of harm is certainly not low.  I think it is properly assessed as at least a medium likelihood, but the court is also enjoined to consider whether the offence was a significant cause of actual harm and to consider moving up a harm category or within category range when a range of sentences is considered.  I will therefore return to that question, since the offence was indeed a significant cause of the death of Mr Ramsay.

“I then require to address the starting point and range for a fine in light of the size of the company and other financial information about the company.  In this case the company is clearly a large one and it is not suggested that it could not pay a fine calculated in accordance with the Guideline.   The starting point in respect of medium culpability, seriousness of harm risked and medium likelihood of harm is a fine of £600,000 in a range of £300,000 to £1,500,000.  If the fact that the offence was a significant cause of actual harm increases the level of harm, the starting point would be £1,300,000 in a range of £800,000 to £3,250,000. 

“I consider that the appropriate way to take account of the causation of death, since that also features in the assessment of risk, is to reflect that in adjustment of the starting point within the range, rather than by moving up a harm category and the appropriate adjustment would be to a revised starting point of £900,000. 

“I then require to address factors increasing or reducing seriousness or reflecting mitigation.  There are no factors increasing seriousness or aggravating the offence, but there are mitigating factors, reflected in the lack of any previous record, the steps taken immediately to address the problem and the generally good health and safety record and effective health and safety procedures.  Applying these mitigatory factors to the revised starting point I consider it is appropriate to adjust the starting point downwards to £750,000.

“The Guideline then requires a check on whether the proposed fine based on turnover is proportionate to the overall means of the offender: it requires to be sufficiently substantial to have a real economic effect.  The court also has to consider any other factors that may warrant adjustment of the proposed fine.  I did not understand there to be any issue of that nature here and there is certainly none in relation to assistance to an investigation (which is a separate matter from assistance with this investigation). 

“Accordingly, the adjusted starting point for a fine applying the Guideline would be £750,000, which confirms the starting point I would have considered appropriate in any event without reference to the Guideline.

“Finally, whether the case is approached on general principles or applying the Guideline, the court should consider reduction for a guilty plea.

“It seems to me, having mind to the recent authority of Scottish Power Generation Ltd v HM Advocate [2016] HCJAC 99, that a discount of 20% would be appropriate, for the early plea in this case, arriving at a fine of £600,000. Accordingly, the company will be fined £600,000, to be recoverable by civil diligence.

“I would make two final observations.  A significant purpose of a fine in a case of this nature is described in the Guideline as to bring home to both management and shareholders the need to comply with health and safety legislation.  It is not to put a value on a human life and that is not what the court is doing.  It is punishing the company.  

“Finally, I would wish to express to the family of Mr Ramsay my own condolences and sympathy.”

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