SENTENCING STATEMENTS

On sentencing, Sheriff Mohan made the following statement: 

"I heard the narration and mitigation when the plea of guilty was given in this case on an earlier date. Since then, I have taken the opportunity to consider the detailed written submissions and the authorities on this matter to give thought to the appropriate sentence. I am mindful, of course, that this is a summary prosecution in which the sentencing disposals include a maximum financial penalty of £20,000. What I have had to assess here is the appropriate penalty for Direct Engineering (Scotland) Ltd in the circumstances of this case.

"James Clark was employed by the company and was carrying out a welding job on the day of this incident on 8 June 2023. Repairs were being done to a water tank for a customer of the company. It was being repaired in the large, enclosed yard which measured about 15m by 30m: other jobs were also being completed within that workspace. I accepted the submission that it was an unusual piece of work in the sense that Mr Clark was working at height on top of the particular structure. He had climbed a ladder to reach its top while other colleagues were working at its base.

"A mobile crane hung in the workspace between parallel beams which ran below the ceiling along the length of the building; this allowed the crane to be deployed throughout the workspace by being manoeuvred to different areas as required. On this particular day the crane was being operated by an employee to assist in the completion of other jobs going on within the yard. The operator was not aware of Mr Clark on top of the water tank at the same height as the crane’s mechanism. As the crane was moved along the parallel beams it struck Mr Clark on top of the tank, hitting against his buttocks and causing injuries to his pelvis. Mr Clark suffered four pelvic fractures and was in hospital for a number of days. He was 57 at the time of the accident. As well as the physical injuries there were psychological effects on him. He was unable to return to work.

"On reflection and with the benefit of hindsight, the failures here under the Health and Safety at Work Act look quite glaring: there was no specific training for Mr Clark on working at height; nor was there specific training for the crane operator to be aware of all potential hazards. It is accepted by the company that the crane itself should have been “locked off” if someone was working at height. This procedure did not happen, resulting in the accident and injury. The crane operator had been employed by the company for about five months. Other crane operators had received specific training, but on that day the company appeared to rely on the operator’s previous experience with another employer as sufficient. Since different jobs were going in the workspace that day, common sense would suggest that there was a failure in communication. On the day, employees or supervisors did not speak to each other to assess what risks might be presented by multiple jobs being carried out at the same time in the same general area.

"To resolve this prosecution there were negotiations between the Crown and representatives of the company. A plea of guilty was tendered at a pleading diet, a very early stage of proceedings, without a trial having to be assigned. I am satisfied on the information presented to me that, since the accident, the company has overhauled its procedures in relation to training and in working in areas where hazards are present.

"This is not a civil claim, and these proceedings are not designed to recompense Mr Clark for his injuries. There are a number of recent Scottish authorities regarding the approach to be taken by the courts in health and safety prosecutions. These include Scottish Sea Farms v HMA, Dundee Cold Stores v HMA both from 2012, and also Scottish Power Generation Ltd v HMA from 2016. Although those appeals related to cases prosecuted at solemn level, they contain helpful guidance regarding the general sentencing approach. An assessment has to be made by the court based on the circumstances of the accident and the means of the company concerned. The process is not to be regarded as a mechanistic sentencing exercise, but the English Sentencing Guidelines can be viewed as a useful cross-check.

"In referring to the assessment matrix found in those guidelines it was submitted that the culpability of the company was low. However, given the circumstances I have observed about the background to this accident, my assessment is that culpability is more appropriately to be viewed in the medium category. Direct Engineering is regarded as a small company based on its turnover. It has grown organically over a number of years and is a local employer with about fifty employees. As far as the assessment of harm in terms of the English Guidelines is concerned, I assess that as falling into category three. As I have indicated, this is not a mechanistic process and I make those observations as guidance only, in order to explain my reasoning. I have indicated already that there is a maximum level of fine in a case of this nature brought by summary procedure and that is at £20,000.

"Taking account of all of those factors and the company’s means, I accept that the incident was an isolated one, but the systems in place for the company fell short and resulted in injury to Mr Clark. Matters have improved in the period since and there has been a restructuring of the company’s approach to health and safety within that work area. Given the levels of fine available in summary procedure my starting point is a sum of £18,000. I will reduce that by one third to take account of the plea at the first opportunity. That leaves a fine of £12,000 together with the relevant victim surcharge. I will allow one month for the payment to be made."

16 April 2026