SENTENCING STATEMENTS

On Sentencing, Sheriff Fleming said: 

"On 10 October 2024, McTaggart Construction Ltd (who I will refer to as the company) pled guilty (by way of a section 76 indictment) to a charge that as principal contractor they failed to plan, manage and monitor the construction phase and to co-ordinate matters relating to health and safety during the construction phase to ensure that, so far as was reasonably practicable, construction work was carried out without risks to health or safety.

The circumstances of the offence were narrated to the court in detail when the case last called. Put short, the company engaged a sub-contractor to carry out repairs to cladding at a site in Ardencraig Road, Glasgow.

Aedan Brown and a colleague, both employees of the sub-contractor,  were tasked with this work.  On 4 February 2022 Mr Brown and his colleague attended at the site in Ardencraig Road. They had been shown the work they were required to do by the company’s site manager the previous day.

A Mobile Elevated Work Platform (MEWP) - also referred to as a ‘cherry picker’ - was required, given that work required to be carried out to the roof.

Persons operating and/or working from this type of MEWP should wear personal fall prevention equipment - a full body harness connected to a lanyard, which in turn should be secured to the anchor point within the MEWP’s basket. In addition, where a MEWP is being used on a busy thoroughfare, barriers should be placed around it to alert other road users to its presence.

Later that morning, prior to the repair work being done, a company contracts manager was driving on Ardencraig Road, away from the site, when he had to cross onto the opposing carriageway to navigate around the boom of the MEWP which was encroaching onto the roadway.

The manager stopped his car and spoke with the MEWP operator, regarding its position. The company site manager was also present, and advised the MEWP operator to ensure that barriers, which were nearby and available, were placed on the roadway, around the MEWP. They were not so placed.

Mr Brown accompanied the MEWP operator in the basket of the MEWP. They were not wearing body harnesses or lanyards. Mr Brown and his colleague were not shown any method statement prior to the work commencing.

Shortly before mid-day, a double-decker passenger bus was being driven along Ardencraig Road when the nearside of the upper deck struck the boom of the MEWP, which was protruding over the nearside lane of the roadway.

The force of the collision lifted the MEWP onto its two rear wheels momentarily, and caused its boom to slew and strike a nearby lamppost. Mr Brown was thrown from the basket and fell, initially, onto the roof of a parked car, before falling to the pavement.

The MEWP operator was thrown by the impact but remained within the basket of the MEWP, at height.

No barriers had been deployed around the MEWP, with the barriers that were available still stored nearby.

Mr Brown was conveyed from the scene by ambulance, to the Queen Elizabeth University Hospital, Glasgow.

He had sustained multiple, extensive fractures to his pelvis and right hip, a collapsed left lung and a fractured left wrist. 

The court has heard comprehensive amplification of the facts and circumstances which occurred on 4 February 2022 when Mr Brown attended at his work and subsequently sustained life changing injuries which were severe and left him permanently impaired.

Since 22 September 2021 all courts in Scotland are required to follow the Scottish Sentencing Council Sentencing Process Guideline. The first step of that process is an assessment of the nature and the seriousness of the offence. Its seriousness is determined by two things; the culpability of the offender and the harm caused by the offence. As either or both culpability and harm increase, so may the seriousness of the offence.

In assessing the seriousness of a particular offence, the court must also have regard to any applicable sentencing guideline which lists any factors relevant to the consideration of culpability and harm. As yet, there is no such guideline in Scotland in respect of health and safety offences, however, the court is permitted to have regard to, and has been referred to, the applicable definitive guideline produced by the Sentencing Council for England and Wales, namely, that from 2016.

It is now well understood that the England and Wales definitive guideline should not be used in a mechanistic or formulaic fashion, however, it does provide a useful cross-check, especially in cases such as the present one, where the offence is regulated by a UK statute.

Stepping away from the technical language often necessarily used by lawyers, the situation here is that on the day and date in question, safety equipment for those working at height and barriers around the MEWP should have been both provided and used. I accept that both sets of safety equipment were available.  I accept that two employees of the company reminded those working with the MEWP to place barriers around it to alert oncoming road users to its presence. The failure by the company is one of supervision.

Insofar as culpability is concerned, on behalf of the company, I was invited by Mr Smith KC to hold that the level of culpability was low. I do not accept that submission. 

The failings were not minor and involved a duality of factors, namely the absence of a harness and a lanyard for those within the MEWP and the absence of barriers on the roadway to alert oncoming traffic to the presence of the MEWP.

The offence was committed through omissions which had been identified by employees of the company and while they had been identified, compliance with the safety procedures was not pursued, as it is accepted it should.

While there was one incident both in terms of time and place, two failures have been accepted by the company and the risks of serious injury were apparent to the company. Although efforts were made to address the risk by the contracts manager and the construction manager on the day, they cannot be categorised as “significant.”

The offence was committed through an omission which a person exercising reasonable care would not have committed.  The company was required to protect workers who may be neglectful of their own safety in a way which was reasonably foreseeable. It is clear that the dangers were actually foreseen by the company’s employees. A fair assessment of the company’s culpability places it within in the medium category. To quote from the England and Wales Guideline , systems were in place but these were not sufficiently adhered to or implemented.

Insofar as the question of harm is concerned, that is self-evident from the injuries sustained by Mr Brown which had a substantial and long term effect on his ability to carry out normal daily activities and to return to work. A high likelihood of harm is properly accepted by counsel for the company. What is termed harm category 2 is accepted by the company.

I also accept that there are no aggravating factors and I accept in terms of mitigation that there was a prompt admission of responsibility, that the firm has an excellent safety record (evidenced by the absence of previous convictions) and that significant steps have been taken to remedy the deficiency. I accept that there was full cooperation in the investigation and that the company and its directors are contrite and have taken this matter extremely seriously.

I also accept that the company stopped all of its work which was being carried out at height immediately after the incident, both within and outwith the particular site, and has now introduced and implemented improvements in its safety procedures.

It is clear that this is an accused company with an excellent safety record, it took steps to remedy the problem, displayed cooperation with the investigation and of particular significance it stopped all work both at this site and others after the incident. I have also been advised that the accused is a significant employer, a creator of employment and an award winner. The work they do in relation to affordable housing is commendable, laudable and valuable.

I consider that the presence of all of  the mitigating features, the utilitarian value of the plea  together with the company’s lack of any previous convictions allow  ultimately to move outside of the identified category range identified within the England &Wales guideline.

In this case the disposal will be a fine. The objective of a fine, in cases such as this, is to achieve a safe environment and bring the message home, not only to those who manage a corporate offender but also to those who own it as shareholders, of the importance of doing do. It should be sufficiently substantial to have a real economic impact on the offender.

The company is a large company (as that term is defined by the England and Wales guideline). Its year end accounts for 2023 disclose a profit of around £5.1 million with a turnover of approximately £84 million. The company remains financially robust.

Looking to the England and Wales guideline, the range of disposals available in the circumstances of this case as I have determined them is a fine of between £300,000 and £1,500.000. The starting point is identified at £600,000.

In light of all of the mitigating factors it is appropriate to modify the starting figure. I have concluded that the appropriate headline sentence is a fine of £300,000. I consider that to be a proportionate figure in all the circumstances as outlined to me in the agreed narrative and bearing in mind the company’s financial resource.

Finally, in the question of disposal, I require to consider the stage at which this plea has been tendered. Having given consideration to the very considerable utilitarian benefit achieved by discussing and agreeing this plea without the need for trial, I consider that the headline figure can be adjusted by one third resulting in a final figure of £200,000. There is also an associated victim surcharge which will require to be paid by the company. That sum shall be paid to the clerk of the court here in Glasgow within 4 months of today’s date and that sum will also be recoverable by civil diligence.

That is the sum which the company will pay as the fine in this case. It is a figure which, I am sure, will remind the company’s directors and shareholders of the gravity of this offence. But I must stress that this is not, and could never be, a figure which in some way represents a compensation for the terrible injuries sustained by Mr Brown."