SENTENCING STATEMENTS

On sentencing, Sheriff Wilson said:

"3B Construction Ltd, a company, has pled guilty, by way of Section 76 procedure, to a single charge libelling that –

(1) Between 1 February 2021 and 8 June 2021 at Hope Lodge, Tongue you 3B CONSTRUCTION LIMITED being an employer within the meaning of the aftermentioned Act did fail to ensure the health, safety and welfare at work of your employees, so far as was reasonably practicable, in that you did fail to

(1) undertake a suitable and sufficient assessment of the risks to your employees operating a table circular saw there;

(2) ensure that the system of work for the operation of said saw was safe and appropriately supervised;

(3) provide your apprentice joiners with such information, instruction and training as necessary to allow them to operate said saw safely; whereby said saw was used without the top guard in place and as a consequence thereof, on 8 June 2021 Connor McGurk, then an apprentice joiner employed by you, operated said saw without said guard in place and his left hand came into contact with the rotating blade of said saw to his severe injury and permanent impairment;

CONTRARY to Section 2(1) and Section 33(1)(a) of the Health and Safety at Work etc. Act 1974.             

Crown Submissions

In deciding upon the appropriate disposal, I had the benefit of a detailed and helpful Crown Narrative.

In short, the Court was told that Mr McGurk, who was 18 years old at the time, was employed by the company as an apprentice joiner. In the course of this employment, whilst operating a table saw, he suffered an accident which resulted in his left thumb being cut off. The detached thumb was located, and following surgery at St. John’s Hospital in Livingston, was successfully reattached. Following 2 to 3 months of physiotherapy, Mr McGurk was left with aftereffects in the form of a shorted thumb with restricted mobility and permanent swelling. He estimates that he has about 70% usage of the thumb, and suffers considerable discomfort in the cold of winter. However, whilst Mr McGurk no longer works for 3B Construction, he has continued his apprenticeship elsewhere, from which it can be assumed that, whilst he suffered severe injury and permanent impairment, he is still able to pursue his chosen career.

The power tool which Mr McGurk was using at the time of the accident had safety features, namely a top guard and a riving knife, designed to prevent the accident, and injury, which befell him.  The table saw manual, the company’s own risk assessment and the HSE guidance documents available online, all stated that the saw should not be used without the top guard.  For the purposes of this judgment, the details of these safety features are of lesser importance. What is of greater importance is that these safety features could be physically removed from the table saw, leaving the rotating blade exposed. It was a matter of agreement that, at the time Mr McGurk was using the rotating saw, the top guard and riving knife had been removed, and it was further a matter of agreement that, had they been in place it is likely that the accident would not have happened.

It would seem that Mr McGurk had reviewed and signed a Power Tools Risk Assessment and a Joinery Work Risk Assessment at induction training on 1^st December 2020, and these risk assessments include instructions on the importance of the top guard.  However Mr McGurk was never given specific instructions on the use of the top guard and riving knife.

At the time of the accident, the top guard had been removed from the saw for about a week. On occasions company employees had used the saw to carry out tasks for which the tool was not designed, and for which it was necessary to remove the top guard.  Any general inspection of the site which found the top guard, or riving knife, to be removed would result only in the Site Manager carrying out the inspection replacing the missing items. From this it could be inferred that misuse of the table saw, i.e. without the top guard or riving knife, was done with the tacit approval of those responsible for site safety.

3B Construction cooperated fully in the subsequent Health and Safety Executive investigation, and thereafter put in place measures designed to prevent any such accident happening again, namely -

(1) A separate room at the site was allocated to house the Company’s mechanical saw equipment. The Dewalt DW745-LX Table Circular Saw manual is now on display in the room and written instructions are provided on an adjacent white board

(2) Specific “toolbox talks” on the safe use of mechanical saws were presented to the Company’s employees at the site from 29th June 2021 under reference to the relevant HSE guidance.

(3) Improvements to the company’s training procedures in relation to the use of the saw, whereby new employees receive training from the Joiner Foreman based on the manufacturer’s instructions and Tool Box Talk in addition to practical instruction. Only when the employees have demonstrated the requisite level of competence in the safe use of the saw, as assessed by the Joiner Foreman, are they permitted to use the equipment.

(4) The company’s risk assessments relating to joinery operations have been reviewed and updated.

Defence Submissions

I was thereafter addressed in mitigation by Mr Ross for 3B Construction. He commenced, entirely appropriately, by apologising unreservedly to Mr McGurk for the severe injury and permanent impairment caused by his client’s failure of duty. Mr Ross further indicated that no issue was taken with the Crown Narrative, details of which were a matter of agreement prior to today’s calling of the case.  

I was told that 3B Construction was a family owned construction company which had been in business since 2003, employed 112 people, and had a turnover, as stated in its most recent audited accounts, of £27,442,530. As stated by the Crown, the company had no previous convictions.

I was addressed, in detail, on the importance that 3B Construction attached, and continues to attach, to the health and safety of their employees. I do not think it necessary to repeat the various systems that 3B Construction have in place to ensure that their employees are adequately trained in all matters relating to health and safety at work. Suffice to say that I have no reason to doubt Mr Ross’s general submission that 3B Construction are a well-established and reputable company which take their responsibilities towards their employees seriously.

However, that has to be set against Mr Ross’s concession that the company failed to have in place a safe system of work for the use of the table saw at Hope Lodge. The company’s failures have been narrated by the Crown, and Mr Ross has taken no issue with that Narrative. However, Mr Ross rightly drew my attention to steps taken, prior to the accident with which this court case is concerned, to mitigate risk levels, including joinery work being carried out off-site (with presumably better facilities), regular inspections of machinery and training provided to employees in the safe use of power tools. It was conceded that, in retrospect, these were insufficient.

Mr Ross also drew my attention to the steps taken by 3B Construction to address issues raised by the accident and subsequent Health and Safety Executive investigation. These steps were fairly narrated by the Crown, and I only need indicate that I took due account of them in my deliberations.

Mr Ross thereafter invited me to take due cognisance of the English Sentencing Guidelines. I am happy to state that I found the guidelines very helpful.

Sentence

In deciding on the final disposal, I settled upon an approach of using the first four steps of the guidelines as a framework, and thereafter applied the appropriate reduction to the resultant figure in light of the timing of the plea –

Step 1 – Offence Category

In deciding upon the appropriate  sentence, I started by determining the offence category as being Medium, in that 3B Construction had systems in place but these were not sufficiently adhered to or implemented.

As regards the seriousness of harm, given that a plea has been tendered to a charge including aggravations of serious injury and permanent impairment, notwithstanding that Mr McGurk continues to work, I settled on Level B as the appropriate category.

Given what I discerned to be the foreseeable nature of the accident, I am of the view that there was a medium likelihood of harm.

Applying the seriousness and likelihood of harm factors, as detailed above, gives a provisional Harm Category of 3.

Thereafter, in assessing the final harm category, I did not find the offence aggravated by a number of workers or members of the public exposed to a risk of harm. Whilst I did find that the offence was a significant cause of the actual harm, I did not regard this as sufficient to change the harm category. Therefore I found the final harm category to be 3.

Step 2 – Starting Point and category range

3B Construction is plainly, in terms of the guidelines, a medium organisation. Given that I have settled upon a harm category of 3, this gives a starting point of £100,000, within a range of £50,000- £300,000.

From this starting point, given the company’s lack of previous convictions, the evidence of steps taken to voluntarily remedy the problem and the level of co-operation with the Health and Safety Executive investigation I feel able to adjust the figure to one of £60,000. At this stage I have not taken into account the company’s acceptance of responsibility by way of a guilty plea.

Step 3

In assessing whether the fine is proportionate to the overall means of the company, I take into account that, whilst its most recent, unaudited, accounts disclose a net profit of £285,020 for the year 2024/2025, in the medium term over the last few years its annual net profits have been considerably higher. Accordingly no adjustment falls to be made. 

Step 4

I find that the level of fine should not adversely affect the company in making restitution to the victim or improve conditions to comply with the law. In addition, I find that there will be no significant impact on staff, customers or other third parties. According no adjustment will be made under this heading.

Thereafter the fine will be reduced by one third, in light of the timing of the plea, giving a final figure of £40,000."