SENTENCING STATEMENTS

Sheriff Millar made the following comments in court:

"On 8 December 2025, Tradstocks Westwood Ltd (who I will refer to as “the company”) pled guilty by way of section 76 indictment to a charge that, being an employer under the Health and Safety at Work etc Act 1974, they did fail to ensure the health, safety and welfare at work of their employees, so far as was reasonably practicable, in that they did:

1. Fail to provide a suitable and sufficient risk assessment and place for the task of dismantling and removal of an ASM profiling saw;
2. Fail to provide a safe system of work for the said task; and
3. Fail to provide two of their employees, namely James Duncan Junior and James Duncan Senior, with sufficient information, instruction and supervision as was necessary to ensure their health and safety at work, exposing them to the risk of injury and

The consequences of said failures lead to James Duncan Junior being struck by the saw when he was engaged in the task causing him to sustain a severe injury from which he lost his life.

The circumstances of the offence were narrated to the court in detail when the case last called.

In summary, the company is a stone yard which supplies stone for new build and restoration construction and landscaping projects.

James Duncan Senior and James Duncan Junior were father and son. They were both time-served engineers employed by the company as the maintenance team at the locus.

James Duncan Junior was 39 years old at the time of his death. He had around 20 years experience and had been employed by the company for around 1 year. His father has around 40 years experience and has worked in engineering roles since the age of 17.

In early March 2023, James Duncan Senior and James Duncan Junior began dismantling a profiling saw which had not been used for around ten years. The saw had previously been used to cut larger pieces of stone to required sizes. I have been shown an image of a similar saw installed for use and an image of the exact machine following the incident. The saw is located within a bay and comprised of a number of component parts. The saw blade shaft assembly and housing were measured at 2.55m by 2.22m. The assembly weighed approximately 2.6 tonnes.

Between 1 and 17 March 2023, James Duncan Senior and James Duncan Junior began dismantling the saw in stages. The saw was removed from a frame and lowered to the floor. The floor of the bay was sloped from outside walls to the centre of the bay to collect water from the saw’s water suppression system. It is inferred that the employees used pieces of wood known as packers and other supporting items to stabilise the saw once it was on the uneven ground.

On Friday 17 March 2023, at around 0900 hours, another employee attended at the bay and found James Duncan Junior crushed underneath the saw. Paramedics attended and life was pronounced extinct at 0930 hours. A post mortem established the primary cause of death as multiple injuries and traumatic asphyxia with a secondary cause as industrial machinery incident.

It was not anticipated by others that James Duncan Junior would have been working on that task that day. His father was not at work and he had other duties to attend to. The exact circumstances leading up to his death are unclear however it is accepted that the saw was likely to have been positioned in an unstable manner on the sloped floor and subsequently fell on top of him.

Prior to and during the dismantling of the saw, there were some general discussions about the task between one of the company directors and both of the employees, however the company did not carry out an adequate risk assessment of the complex task.

Prior to the incident, the company did have a health and safety policy which provided that an assessment should be carried out in these circumstances. James Duncan Senior advised that he had never seen this policy and he was not aware of his existence. The company instead relied upon the experience of the maintenance team and the two employees were left to devise their own plan for the task.

The company failed to ensure that the employees had adequate information, instructions or supervision for the task, and did not provide a safe system of work. As a result, the system attempted by the employees was inherently unsafe and failed to ensure the stability of the saw when removed from the frame.

Following the incident, an investigation was undertaken by a specialist inspector from the Health and Safety Executive. Having regard to the size and scale of the saw and the sloped floor, it was his view that it was foreseeable that the saw may be prone to becoming unstable having been lowered from the frame.

After the incident, the company appointed an external stone machinery specialist to undertake a risk assessment for removal of the machine. A method statement and lifting plan was developed and the saw was safely removed on 4 April 2023.

Tradstocks Westwood Limited is a private limited company located in West Calder. In respect of their financial position, in year 2022/23, their turnover was around £2.4 million. In year 2023/24, their turnover was around £2.2 million and in year 2024/25, their turnover was around £2.3 million. I have also been provided with copies of their annual accounts for these periods.

The company have been routinely supported by external health and safety consultants who carry out annual audits. In support of mitigation, they have provided a copy of an independent health and safety inspection report from January 2024. This assessed 34 categories for health and safety compliance. These  categories included, but were not limited to specific tasks, policies, equipment and facilities. The report confirmed that 28 categories were assessed to be of satisfactory standard. Recommendations for improvement action were made in respect of the remaining 6 categories. There were no categories that were assessed as work requiring to stop for resolution. They have no previous convictions and prior to this incident, they had not received any enforcement notices from the Health and Safety Executive.

When sentencing cases, courts in Scotland are required to follow the Scottish Sentencing Council Guidelines. The first step of the sentencing process requires an assessment of the nature and seriousness of the offence. The seriousness of an offence is determined by two things: the culpability of the offender, and the harm caused, or which might have been caused, by the offence. As either or both culpability and harm increase, so may the seriousness of the offence.

In sentencing cases involving breaches of health and safety legislation, the Council also directs courts to the judgment in Scottish Sea Farms Ltd v HMA 2012 HCJAC 11 which sets out the principles that judges should consider when sentencing in serious health and safety cases. This judgment confirmed that the principles set out in the earlier case of HMA v Munro 2009 HCJAC 10 should be followed and that it is appropriate for Scottish courts to refer to the sentencing guidance from England and Wales in respect of health and safety offences. These guidelines provide a framework to assist the court in determining the appropriate levels of harm and culpability of an offence. In reaching a decision in this case, I have had regard to both of the Scottish cases mentioned and also to the guidelines from England and Wales.

On the last occasion, Mr Duguid KC for the company made focussed and helpful submissions based on these guidelines in respect of the levels of harm and culpability applicable in this case. I do not seek to rehearse them here but I consider that they were detailed and fairly made.

In respect of culpability, I agree that the company fell short of the appropriate standard in a manner assessed to be under the medium culpability category. The company failed to properly risk assess and create a safe system of work for the task. They did have health and safety policies but failed to ensure the awareness and compliance of their employees with these.

In respect of harm, the admitted failures of the company contributed to James Duncan Junior’s death, the highest level of harm. Overall, I have assessed the offence as falling within “Harm category 1.”

In reaching this decision, I agreed with the submission that there was a medium likelihood of such harm arising, as a starting point. This would be assessed at “Harm category 2” in the guidelines. The guidelines however provide for an adjustment of this category following consideration of other factors.

I heard submissions on behalf of the company that no other person ought to have been exposed to a risk of harm. I consider that there was a wider risk, albeit a limited one. Mr Duncan Senior and Mr Duncan Junior had placed equipment in the front of the bay to create a type of barrier to entry. Whilst Mr Duncan Senior was not at work on the date of the incident, he had access to the bay when on site and would have been at risk had he entered the bay before his son. I consider that the risk of exposure of harm extended also to him. I also heard evidence that another employee entered the bay to look for Mr Duncan Junior on the day of his death, suggesting that there was also a risk to others, albeit at a lower level.

This factor alone would not have caused me to raise the category of harm, however the guidelines suggest there can also be consideration of whether the offence was in fact a significant cause of harm, and not only a serious risk of same. On behalf of the company, it was proposed that the harm had already been recognised in applying this matrix and it was suggested that it would be unjustifiable to attribute the same circumstance twice in assessing the category. I consider that the guidelines invite consideration of both the “seriousness of harm risked” and “whether the offence was a significant cause of actual harm” as separate factors and I have taken that approach here.

A significant cause is one which more than minimally, negligibly or trivially contributed to the outcome. In this case, there were three identifiable failures as outlined in the charge which contributed to the death of Mr Duncan Junior. It is accepted that the offence was a significant cause of actual harm to him. Taking account of this, and to a lesser extent the risk to others, I consider that the appropriate level of harm is in fact “Harm category 1.”

Having determined the levels of harm and culpability, I must now consider the appropriate level of fine. It is agreed that under the guidelines, the company falls just within the “small” company category, with an annual turnover of just over £2 million. In the guidelines from England and Wales, the suggested starting point in such a case is a fine of £160,000 with a sentencing range of £100,000 to £600,000.

At this point, I am required to identify any aggravating and mitigating factors.

In terms of aggravating factors, I am satisfied that none of the aggravating factors referred to within the Scottish Sea Farms Ltd case at paragraph [18] nor within the English guidelines are present.

Looking to the mitigating factors outlined in the aforementioned references, I agree with the submissions of Mr Duguid KC that all but one are present. Accordingly, I have taken account of the following:

• The company has no previous convictions and had a good health and safety record
• There is evidence that they took steps voluntarily to remedy the problem and they have shown a responsible attitude to health and safety, including commissioning independent inspectors
• There has been a high level of cooperation with the investigation
• There has been a prompt acceptance of responsibility. Mr Duncan Junior appears to have been a valued member of staff and I am advised that the company continues to mark his passing by closing their premises and operations on the anniversary of his death.
  

I have also been advised that within its field, the company is recognised as an important one in Scotland, perhaps even the UK. It carries out its work in West Lothian in an industry dominated by international competition. They have around 20 employees and the work that they do is valuable to the local and national economy. Whilst they have a strong order book, I am advised that their current financial stability is finely balanced and this is reflected in the accounts provided. This is due to several factors including investment in plant and equipment, an outstanding VAT bill and high running costs currently affecting the construction industry.

In light of all the mitigating factors, it is appropriate to modify the starting figure. I have concluded that the appropriate headline sentence is a fine of £100,000 to achieve the appropriate purposes of sentencing in this case.

The court is required to take into account the stage in the proceedings at which, and the circumstances in which, the company indicated their intention to plead guilty. This is a plea of guilty under section 76 procedure and I will give effect to that by modifying the headline sentence to a fine of £67,000. There is also an associated government surcharge of 7.5% of the total fine that I am required to impose and that will require to be paid by the company.  I calculate that at £5025.

The fine may be paid in instalments and is recoverable by civil diligence in default of payment.

I consider that this fine will remind the company of the gravity of this offence and also others of the essential nature of compliance with health and safety legislation.

I would conclude today by offering the sincerest condolences to the family and friends of James Duncan Junior in recognition of their loss. Whilst any penalty imposed by this court cannot compensate them for the loss of a loved one, I hope that conclusion of this court case may provide them with some small measure of solace and closure."

Sheriff Chloe Millar

Sheriff of Lothian and Borders at Livingston

19 December 2025