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HMA v Bam Nuttall Limited

Dec 18, 2024

At Lerwick Sheriff Court, Sheriff Ian Cruickshank fined Bam Nuttall Limited £800,000 after they tendered a plea of guilty to a contravention of section 2(1) and section 33(1)(a) of the Health and Safety at Work Act 1974, in relation to the death of Liam MacDonald.

On sentencing Sheriff Ian Hay Cruickshank made the following remarks in court:

" On 5 June 2022, at the Viking Wind Farm construction site, Upper Kergord, Shetland

a terrible and tragic accident occurred. Whilst cleaning a concrete column skip Liam

MacDonald, who was aged 23 years, sustained severe injury and died. This occurred during

the course of Mr MacDonald’s employment. Bam Nuttall Limited (“The Company”) have

accepted responsibility and have tendered a plea of guilty to a contravention of section 2(1)

and section 33(1)(a) of the Health and Safety at Work Act 1974.

The guilty plea was tendered on 10 December 2024 by way of a section 76 indictment.

On that date I heard a detailed Crown narration and an equally detailed plea in mitigation. I

adjourned the sentencing diet to allow me an opportunity to reflect on all that I heard and to

review the various factors which must be considered as part of the sentencing process.

In summary, Mr MacDonald was tasked with chipping off hardened concrete which

had accumulated on the column skip from the previous day’s use. This was to be achieved

by using a heavy hammer. It was not a task that Mr MacDonald had carried out before. He

was not accompanied to the skip, was unsupervised and was not provided with further

instruction. Shortly after commencing this task, he was seen by his foreman inside the skip

chipping the hardened concrete with the hammer. I was told that the chipping of concrete

with a hammer, when necessary, would ordinarily have been undertaken by a worker

standing outside the skip.

About an hour after Mr MacDonald was seen inside the skip, he was observed by

work colleagues to be motionless, still within the skip, and pinned by the bale arm. The bale

arm weighed eighty kilograms. Mr Macdonald’s colleagues removed him from the skip but

efforts to save him were in vain.

The bale arm had previously been in an upright position which meant it sat back at a

shallow angle to the vertical. In this position, when not in use it could be secured with a

carabiner and chain. As it transpired, it was not secured although it is believed that the bale

arm had been secured in this fashion following use of the skip the previous day. How it

came to be disengaged is not known, but the status of the bale arm safety mechanism was

not inspected or checked immediately prior to Mr MacDonald commencing his task.

The Company did have in place a risk assessment which required that concrete

wagons and tools had to be washed out in the wash-out bay. This is what ordinarily

happened, but for the reasons stated to me, this did not happen on this occasion.

Accordingly, the situation leading to Mr MacDonald being required to remove the hardened

concrete with a heavy hammer, whilst not unique, was accepted to be an infrequent

occurrence.

The Company was found to have no specific risk assessment which applied to the

use of this particular type of skip. As a result, the risk of serious injury associated with the

use of the skip due to the bale arm falling had not been adequately addressed. During the

investigations which followed, the Health and Safety Executive concluded that the

Company had failed to ensure there were appropriate control measures in place to prevent

the bale arm falling. One such measure would have been to ensure that the bale arm was

lowered to a horizontal position after use. The risk of an unsecured bale arm falling on

someone chipping dried concrete, whether working inside or outside the skip, was assessed

as being high. Furthermore, the Company was found not to have effective monitoring

arrangements in place to review its risk assessments and safe systems of work. There was

no manufacturer’s user guide for this particular skip on site and no suitable system for

ensuring the safety information contained in the user guide was brought to the attention of

site managers and supervisors.

In mitigation, Mr MacLeod KC advised me of the Company’s review of procedures

following the accident and the various measures which had been introduced to improve

workplace safety. Whilst I will not repeat these measures, I accept that their introduction

would substantially reduce, if not eradicate, a reoccurrence of a similar incident. I was

further advised that the Company employed several thousand employees and contractors

and took matters of health and safety very seriously. There had been a steady reduction of

serious workplace incidents in recent years.

Mr Macleod also referred to a number of points to support the proposition that this

accident occurred as a result of oversight. The accident had been a one-off incident as a

result of such oversight and was not indicative of a cavalier attitude to health and safety.

Seven over-arching factors were advanced for my consideration when it came to the matter

of the appropriate level of fine. I will not repeat these, but I have given careful consideration

to the matters brought to my attention in this respect.

All sentences must be fair and proportionate. Since September 2021, the Scottish

Courts are required to follow the Scottish Sentencing Council Sentencing Process Guideline.

The seriousness of an offence is to be determined by the culpability of the offender and the

harm caused.

I heard detailed submissions on the Sentencing Guidelines for England and Wales

(“the English guidelines”) relevant to this type of offending. In Scotland, these guidelines

are not “definitive”, but it has been accepted that the guidelines provide a useful cross-check

when it comes to determining what a fair and proportionate sentence would be. I will not

repeat in detail the submissions I heard on this matter, but I am grateful for the very

focussed and helpful submissions I heard in this regard.

It is accepted in this case that the Company is to be regarded as a “Very Large

Organisation” (“VLO”) as defined in the English guidelines. I have been provided with the

Company’s accounts for the past three years. The most recent year’s accounts record an

operating profit of over £52 million. That is a relatively low profit margin based on a

turnover of £1.2 billion but it remains, nevertheless, a substantial operating profit in the most

recent year of trading. Further, in each of the last three years, the turnover of the Company

has exceeded £1 billion.

In summary, I was invited to conclude that, with reference to the English guidelines

to be applied to a VLO, culpability should fall within the “medium” category. Further I was

invited to conclude that the level of culpability should be assessed at the lower end of that

category. On the second relevant component, being “harm”, it was accepted that this would

fall under “Level A”. Coupled together this would lead me to determine that the correct

categorisation as to the risk of harm created by this offence would be “harm category 2”.

With no aggravating factors, other than certain previous convictions which were

distinguishable, any movement in the sentencing range should be in a downward direction

from that starting point.

In assessing what is a fair and proportionate sentence I accept, using the English

sentencing guidelines as a cross-check that, in all the circumstances, this offence was a oneoff

incident. When it comes to accepting this as an “oversight” I balance that against the fact

that Mr MacDonald was instructed to carry out a task he had not previously been asked to

do. He was given no guidance or instruction. He was not supervised, and he was sent to the

skip alone with no check immediately prior to commencing his task carried out on the

security of the bale arm. I also take on board the conclusion reached in the HSE

investigation that the risk of an unsecured bale arm falling on someone chipping dried

concrete, whether from inside or outside the skip, was assessed as being high. Accordingly,

whereas I accept Mr Maclead’s submissions that this offence falls within the medium

category for culpability, and that “Level A” harm applies, I conclude that the risk of harm

created by the offence was high and falls within “Harm category 1” and not “Harm category

2”. The mischief of the offence is in creating a risk of harm. Whereas this was an isolated

incident the offence was the significant cause of the actual harm which occurred. There was,

in all the circumstances, a high likelihood of harm arising and that is what transpired.

It is accepted that there are no aggravating factors in this case with the exception of

previous convictions. It has been submitted that these are distinguishable and the most

recent conviction for a breach of section 3 of the 1974 Act was in a quite different category of

offending. Whilst I was not given detailed information about that earlier offence, I was told

it arose out of circumstances which occurred in 2017, and I was reminded of the reduction of

serious incidents in recent years. Mr MacLeod further submitted that, since the 2017

incident, there had been an “evolution in terms of learning” about the risk of harm resulting

from working practices.

Whilst I accept that there may have been quite different circumstances behind the

last conviction as compared to the present ma􀄴er, it is necessary to note that the Company

has a number of previous breaches of the 1974 Act. Since 1999 there have been 16 previous

contraventions of the 1974 Act with fines ranging from £3,500 to £2,334,000. They remain of

relevance when it comes to the matter of sentence in this case. I take a measured approach

in relation to these previous convictions. Whereas in the overall circumstances they may not

materially aggravate the penalty to be imposed they must be viewed as limiting the extent to

which the level of fine can be reduced in overall mitigation.

Looking to the English guidelines as a cross-check, there is no reason why the

general guidance provided should not be used as a starting point to the determination of

sentence in the circumstances of this case.

Stepping back, and reflecting on all relevant matters, it is necessary for me to impose

a financial penalty that sends a message that Companies must do all within their power to

ensure safe working practices. That is the responsibility of not only of those who manage a

Company. The duty extends to others including shareholders. To that end, where there is a

failure to provide a safe system of work which results in death any penalty will ordinarily

require to have a real economic impact commensurate with the size and profitability of the

Company. In the present case, to achieve that aim, I have determined that, as a starting

point, a fine of £1,200,000 is appropriate. Applying relevant discount for the early plea

tendered in this case I discount the fine to £800,000.

18 December 2024