SENTENCING STATEMENTS

On sentencing, Sheriff John N. McCormick said:

“Mrs Elizabeth Glen, aged 82, resided with her elderly husband at an address in Milton of Campsie.  She had survived various forms of cancer and had been diagnosed with Parkinson’s Disease and osteoarthritis.  In addition she had suffered previous fractures as a result of the fragility of her bones.

However there is no suggestion that she was nearing the end of her life in December 2019.  At that time she lived at home, assisted by daily visits by from carers.

Those carers would use, on a daily basis, a patient hoist to transfer her from her hospital-type bed to an armchair within the living room of her home.

The hoist used was a Joerns Oxford-Midi-180 Hoist.

This hoist had been manufactured on 7 July 2015.  The hoist was initially installed within a care home but in June 2019 it was reported as being defective.  It was uplifted from the care home and taken to the premises of EquipU in Baillieston for repair.  A service engineer fitted a replacement actuator to the hoist on 20 June 2019.  That done, the hoist was tested and was found to be working safely.

The hoist was then installed in Mrs Glen’s home on 27 August 2019.

Thereafter the hoist was in daily use until its failure on 31 December 2019.

On 31 December 2019 Mrs Glen’s carers attended and followed their normal routine.  Mrs Glen was correctly placed into her sling in advance of the carers transferring her from her bed to her chair.  The bed having been lowered, Mrs Glen was lifted by the sling and, while suspended by it, she was wheeled towards her chair. At that point the hoist failed.

The boom, to which the spreader bar and slings were attached, suffered an uncontrolled descent causing her, while remaining within the sling, to fall to the floor, coming into contact with both the floor and the legs of the hoist which had castors attached.

An ambulance was summoned.  Mrs Glen was admitted to Glasgow Royal Infirmary.  She was diagnosed as having suffered a fractured pelvis.  As a result of her immobilisation due to this injury, she developed bronchopneumonia and passed away within the hospital on 8 January 2020 at 1400 hours. 

I shall not reiterate the investigations which took place subsequent to the accident.  The result of those investigations include that the replacement actuator installed on 20 June 2019 was a component that should not have been fitted to this particular model of hoist.

Although both actuators may appear identical, the critical difference is the length of the piston rod.  As a consequence of the wrong actuator being installed into this hoist, the piston rod fractured resulting in an uncontrolled descent resulting in Mrs Glen fracturing her pelvis.

The error was caused by the replacement actuator not being the appropriate one for this particular model of hoist.

As a result of that error the hoist failed causing the accident which led to the demise of Elizabeth Glen.

I have no doubt that her demise in this manner will have been devastating for her family.  No penalty which this court can impose could properly reflect the consequences to Mrs Glen nor the grief or loss caused.

When assessing the appropriate financial penalty the court is bound by principles including those summarised in Scottish Sea Farms Ltd v HMA 2012 SLT 299 at paragraph [18] with the English guidelines to be used as a cross-check.

The court has also had regard to the cases referred to in the company’s bundle of authorities but also in relation to a Crown appeal, HMA v Tigh-na-Muirn Ltd [2023] HCJAC 30 and an appeal against sentence by Linbrooke Services Ltd v HMA [2023] HCJAC 31.

Applying the relevant principles here, death had occurred as a consequence of the breach.  That is an aggravating factor.

Against that it seems accepted that the (incorrect) replacement actuator had been installed but not with a view to profit.  For reasons unknown the engineer ignored the label on the replacement actuator.

The company has no previous convictions and has had an “exemplary health and safety record”.

Moving forward from the last issue, the company has made a prompt admission of responsibility and taken steps as outlined in the plea in mitigation, to remedy any deficiencies.

As for the level of fine at paragraph [18] of Scottish Sea Farms: “The objective of the fine should be to achieve a safe environment for the public and to bring that message home, not only to those who manage a corporate offender, but also to those who own it as shareholders.”

Although the installation of the incorrect replacement component to the Oxford-Midi-180 Hoist was, it seems, an isolated incident, the period of the libel refers to the period during which the hoist was available for use (20 June until 31 December 2019) and had been in use from 27 August 2019.  It was in routine, regular and appropriate use at the point it failed.  At that point Mrs Glen and her carers had trusted the hoist to hold and carry her safely.

According to the company accounts for the years ending 2021 and 2022 the company had an annual turnover of just over £1.7 million.  Using (as the court is obliged to do) the English guidelines as a cross-check but not applying those guidelines in a mechanistic manner the English guidelines describe such a turnover (less than £2 million) as a micro company.  Here the duration of the libel was a period of 6 months.  Although I would classify both matters as aggravating as it must be borne in mind that while the hoist was in daily use, the issue which caused the accident was an isolated one arising months beforehand.

In addition, as I have said, the company appears to have had a good safety record and has taken active steps to avoid a recurrence.

Taking these factors in the round so to speak I assess the appropriate fine in this case to be £90,000 (cross-checked with medium culpability, harm category 1, of the English guideline).  This is a plea that was tendered under the section 76 procedure. Accordingly the fine will be reduced to £60,000 which is the fine which I will impose in this case.  To this sum a victim surcharge (£4,500) will be added.   I will allow twenty eight days for payment and order recovery by civil diligence.

Finally I reiterate that no fine or penalty can properly reflect the consequences of what occurred on 31 December 2019.   I close by offering the court’s condolences to the family of the late Mrs Elizabeth Glen.”

24 August 2023