PF V Stan England Builders Limited

At Aberdeen Sheriff Court today, Sheriff Graeme Napier fined Stan England Builders Limited £6,000 after the company pleaded guilty to breaching Health and Safety working at height regulations

On sentencing Sheriff Napier made the following statement in court:

"Stan England Builders Limited is I am told a small Building Company involved in construction of traditionally built domestic properties. It is what the Sentencing Council for England and Wales would describe as a micro company. It is sufficiently small that the main Director and shareholder Stan England is actively involved in most projects a factor that appears to me to be particularly relevant in this accident.

The incident to which this case relates occurred almost 4 years ago, on 31 March 2016. Despite that extended lapse of time today is the first time this court has been invited to deal with the matter. It calls today by way of Summary complaint at the instance of the Procurator Fiscal but from all that has been said to me it appears that the local Procurator Fiscal has had scant, if any involvement in the matter. It seems to be the case that the Procurator Fiscal for this court is side-lined in these types of cases and that the responsibility for these cases is taken by some sort of national unit for which the Procurator Fiscal actually seems to have no responsibility. Who if anyone has that responsibility is not clear but I have asked the procurator fiscal depute in court to ensure that I receive an explanation about this and the delays here in due course.

What is clear is that this case cannot have been seen either by the H&SE or the Crown to be a particularly serious one. If they had it would not have taken H SE 1 year to submit a report to the Crown or 3 years for the Crown to get the matter in to court. That is particularly so since the case is such a straightforward one. I have yet to be provided with an adequate explanation for the delays in this case. The consequence of such delays is that for too long this matter has been outstanding and 'hanging over the heads' of all those involved, not only those in the accused company and the injured man but also witnesses

Falls from height are a significant issue in the construction industry. According to figures I am aware of from the Health and Safety Executive, falling from height is still one of the biggest causes of major injury to workers in the UK and the most common cause of death in the workplace. Falls are said to continue to be the biggest cause of fatal injury in Britain's workplaces. But this is not some new phenomenon and Mr England, who I am told established this company 32 years ago, should be aware of that. It is because of this common danger that separate regulations have been promulgated to require measures to be in place to eliminate or at least mitigate the consequences of workers falling from height. It is under these specific regulations and not the more general provisions of section 2 or 3 of the 1974 Health and Safety at Work Act that the company has been prosecuted and the maximum penalty available to me today is a fine of £20,000.

In deciding on the appropriate penalty I must look at the seriousness of the breach of the regulations involved here; the aggravating and mitigating factors; the financial position of the company ; and finally consider whether any discount on sentence should apply. I can also test my view against the guidelines issued to judges in England and Wales by the Sentencing Council there. In reaching my decision it should be clear that I am not relating the penalty directly to the injuries sustained by Mr Ness. That is a matter for the civil courts and I pleased to note that his civil claim appears to have been settled.
Although the offence is a 'one off' covering one day only and one breach of a regulation and not the wider general responsibilities under the Act, it seems to me that I am entitled to take the view that this is a serious breach of the regulations. In my view it was a clear and obvious danger and should have been guarded against as a matter of routine, particularly so as Mr England had seen what was happening that day. There are no aggravating factors. The company has a good safety record with no convictions. There is mitigation in the form of early acceptance of responsibility; cooperation with HSE; and in the sympathetic way the company appears to have dealt with Mr Ness. In English terminology there is in my view a high level of culpability here not the medium level urged on me by Ms MacNeill for the company. That is because there was a failure to put in place standard measures to mitigate risk. There was at least a medium likelihood of harm. And I am dealing with a micro organisation with no aggravating and some mitigating features to the offence.

Had the case been prosecuted 3 years ago, as in my view it could and should have been, I would have been dealing with a company in a much better financial position than it is today (gross annual profit seem to have dropped by some £50,000 over that period). The current financial position of the company has to be taken into account by me in fixing the appropriate penalty. Given all those factors, it seems to me that a starting point of £9000 for that penalty (that is almost 50% of the statutory maximum) is appropriate which I will discount by 1/3 to leave a net penalty of £6000."