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HMA v Broomhall Ltd
Jun 5, 2023
On sentencing Sheriff WM Wood made the following remarks in court:
“Broomhall Limited has pleaded guilty to a charge of failing to provide a safe system of work to ensure the safety of its employees by: failing to carry out a suitable and sufficient assessment of the risks arising from the operation of forklift trucks at their premises in Inchture; failing to ensure that the persons operating forklift trucks there had satisfactorily completed formal training so to do; and failing to put in place a suitable traffic management plan at heir premises to segregate vehicles and other persons working there during forklift operations and to thereby minimise the risk of such persons being struck by forklift trucks.
As a result of these failures, on 11 April 2019, John Gordon Brodie, then 61 years of age and employed by the company as a supervisor, was struck by a forklift truck being driven by an employee taken on a matter of days before. Mr Brodie was pushed into racking and his foot sustained devastating injuries that led to a below the knee amputation. Mr Brodie had intended to work until he was 70, but he will likely never work again; his activities and hobbies are severely curtailed; and he is only able to drive an adapted car. There can be no doubt that his injuries are life-changing. May I extend the court’s sympathies and concern for the situation in which Mr Brodie and his family now find themselves.
It was as a result of the injuries to Mr Brodie that the company’s failings came to light following an extensive investigation by Perth & Kinross Council as the enforcing authority.
The offence committed is one of creating a risk of harm. In order to determine the appropriate sentence, I require to take a staged approach to assessing levels of culpability and harm having regard to existing case law and a matrix of sentencing guidance in Scotland. Thereafter, the English Sentencing Guidelines - to which both parties refer - provide a cross check for any provisional assessment at which I arrive.
It is common ground between the approach in Scotland and the Guideline that ‘the fine must reflect both the degree of fault and the consequences so as to raise appropriate concern on the part of shareholders at what has occurred.’
Clearly, that there was a life-changing injury to an employee must weigh heavily with the court – although that is not a dominant feature for sentencing.
From the narrative I heard, the accused is perhaps fortunate that the dates of the libel are in such restricted terms – the fact that there have been no previous safety incidents of any significance may be an indication only that the company have customarily employed individuals with a sufficient degree of safety awareness and common sense that serious injury has been avoided.
In any event, the systems in place were not satisfactory. There is an agreed narrative of the failings, to which I shall return presently. Drawing from that narrative, it seems to me that had there been something as simple as clear and unambiguous one-way markings on the warehouse floor for the guidance of forklifts, then the injury to Mr Brodie might have been avoided altogether.
The forklift driver had certainly had some training on site and he had been deemed sufficiently proficient to be put to work – but the risks to safety arise due to a lack of satisfactory formal training (which would no doubt have been more rigorous than the training he received) and the absence of a proper traffic management plan to separate, as far as possible, forklifts and pedestrians. Given that the business of the company is the retail and wholesale of animal feeds, it can be inferred that there would be a reasonable amount of traffic – both forklift and pedestrian – in the course of any particular day. I have noted that the management system for the fulfilment of orders was set out in such a way that the traffic ought to have been one-way, but the failure to have clear markings taken with persistent failure to record formal training and refresher training points to the likelihood of a serious incident at some point.
I have noted that the company has no previous convictions; that there has been an early acknowledgement of responsibility; that it has fully engaged with the investigation; and that it has taken steps to improve its systems. It has employed external assistance and it has improved the traffic system within the shelving area of the warehouse. All of this is to its credit. It is what I would have expected of a company of the accused’s type, being a long-standing family business that is able to retain its employees on a long-term basis.
This is a relatively small company, of modest post-tax profits. Taking into account all of these factors and having due regard to the available Scottish case law, I reach the preliminary view that the appropriate level of fine should start at £40,000.
Turning to the Guidelines, while I consider that the seriousness of potential harm risked is death, the likelihood of that must be assessed as being Low; that said, given the nature of the failures in this case, there is a much higher risk of there being a non-fatal injury leading to a physical or mental impairment, the likelihood of which I determine as being Medium. In either case, for the purposes of the Guideline, the result is to place the offence in Harm Category 3. Given that the number of employees exposed to risk at any given time is relatively small, I see no need to adjust the category of harm.
Taking into account the systems in place – albeit falling short of what was reasonable necessary – I am prepared to accept the submission that culpability probably falls at the lower end of Medium.
The company’s reported turnover places it in the category of a “small” organisation for the purposes of the Guideline. Applying these findings of Harm category 3 and Medium culpability, the start point for a fine under the Guideline is £24,000, in a range of £12,000 to £100,000. However, given that the company’s turnover sits at the higher end of the “small” organisation range, it seems to me that the start point ought to be adjusted upwards substantially, in order to reflect the need for the penalty to be sufficient to raise concerns on the part of shareholders in relation to the serious injury caused to Mr Brodie. Accordingly, I assess that the appropriate start point in this case before taking mitigation into account might be fairly fixed at £60,000. Allowing for the substantial mitigating factors that have been identified – the restricted period of the libel; full co-operation in the investigation; relatively prompt remedial action; a radical overhaul of the system for collection of orders in the warehouse; engagement of external health and safety consultants; and re-training employees – and applying a broad axe, I reduce that figure to £45,000.
In context, the figure I have assessed under the Guideline and that reached by way of Scottish precedent are broadly the same. The appropriate fine to be applied is therefore the figure I reached earlier of £40,000. Given that this case has proceeded under the s76 procedure, a further discount requires to be applied for the early resolution of these proceedings of broadly one third. The fine is therefore modified to £27,000. This also appears to be a figure within the means of the company to pay.
I am sure that, for a rural, family-run company such as the accused, with many long-serving staff members, the mere occasioning of this incident on 11 April 2019 will remain in the memory of the management long after the fine has been settled. It is a sharp reminder that, regardless of the apparent competence of staff, proper health and safety systems are essential to remove, insofar as possible, risks to their employees.”
5 June 2023