SENTENCING STATEMENTS

Sheriff Wilson made the following comments in court:

Introduction

It is appropriate to start by extending the court’s deepest sympathies to the deceased Alan Guthrie’s widow, his friends and his work colleagues. I can only hope that the conclusion of this court case may provide them with some small measure of solace and closure.

Allan’s of Gillock, a company, has pled guilty, by way of Section 76 procedure, to a single charge libelling that –

(1) Between 5 July 2023 and 5 April 2024, both dates inclusive, at the business premises occupied by you and known as Allan’s of Gillock Limited, Breckan Depot, Finstown, Orkney, you ALLAN’S OF GILLOCK LIMITED, being an employer within the meaning of the aftermentioned Act did fail to conduct your undertaking in such a way as to ensure , so far as was reasonably practicable, that persons not in your employment who may have been affected thereby were not exposed to risks to their health or safety in that you did permit Alan Guthrie, aged 61 years, c/o Orkney Islands Council, Kirkwall, Orkney, a self-employed lorry driver delivering materials to your premises, to assist with the unloading of his vehicle without having provided a safe system of work for doing so, and in consequence thereof on 5 April 2024, while the said Alan Guthrie was working at height on said vehicle to assist your employees with its unloading, he fell from a height of 3.1 metres or thereby and was so severely injured he died;

CONTRARY to Section 3(1) and Section 33(1)(a) and (c) of the Health and Safety at

Work etc. Act 1974.

In deciding on the appropriate disposal, I had the benefit of helpful written and oral submissions from both the Crown and defence. I also referred myself to both the Scottish Sentencing Council’s general framework regarding the sentencing process, and the more detailed advice contained within the (England and Wales) Sentencing Council’s Definitive Guideline for Health and Safety offences. With regard to the latter source, I have been urged by Senior Counsel for the company not to apply these guidelines in an overly mechanistic fashion. This is the accepted approach in Scottish Courts, and indeed Counsel have referred me to case law in support of this submission. Nonetheless I found the Sentencing Council’s approach in considering Health and Safety offences helpful.

Crown Submissions

There were no factual disputes between Crown and defence, and therefore much of the narrative which follows is a repetition of what has already been said by both parties.

Alan Guthrie was, at the time of his death, 61 years old, and a married man with no children.  He lived locally in Orkney, and was well liked by all who knew him.

He was an experienced Heavy Goods Vehicle driver, and for around 25 years carried out work, as a self-employed contractor, for WD Cormack & Sons, a Caithness-based transport company. WD Cormack & Sons would regularly transport loaded trailers from the Allan’s of Gillock Caithness premises and thereafter load them onto the Orkney ferry. Upon arrival in Orkney, these trailers would frequently be collected by Mr Guthrie and taken to the Allan’s of Gillock depot at Breckan. This would appear to be a regular routine, with deliveries at least once a week, and it was a routine that all concerned, be they staff at both depots or the drivers were familiar with.

It was not within Mr Guthrie’s contractual duties or designated role to help with the unloading of deliveries at the Breckan depot. Notwithstanding this, he would on occasion assist with this task, particularly if one of the yardsmen, whose role it was to unload trailers, was not available.  Mr Guthrie’s assistance would often involve either climbing up onto the back of the trailer or using a forklift truck. This would appear to have been a regular occurrence, and Mr Guthrie was never prevented or discouraged from offering assistance with the task of unloading the trailer.

On 5 April 2024 the load Mr Guthrie delivered included, inter alia, two septic tanks attached to the flatbed trailer by straps. This created a V-shaped groove running the length of the upper surface of the two tanks. Into this groove were placed some land drainage pipes, shrink-wrapped in plastic and separately strapped. This created a smooth hard plastic surface which provided little by way of secure footing for anyone climbing up on to the load.

Mr Guthrie had, in line with the normal routine, played no part in loading the trailer at the Caithness depot. He had simply collected the trailer from the ferry terminal at St Margaret’s Hope (in Orkney) and delivered it to the Breckan depot.

Upon Mr Guthrie’s arrival at the depot, only one yardsman was available to unload the trailer, his colleague being out on deliveries. As he had done in the past, Mr Guthrie offered to help unload the trailer, and this offer was accepted without objection. He and the yardsman having removed the retaining straps, Mr Guthrie climbed on to the trailer and then on to the top of the load, by which point he was roughly 3.1 metres above the ground. Whilst in this position, and in the course of trying to move the drainage pipes from the top of the septic tanks, Mr Guthrie lost his footing and fell backwards striking his head on the concrete surface of the yard.

Those present went to his immediate assistance, ambulance technicians arrived within 15 minutes and he was transported to the local hospital. He having been assessed as suffering a severe brain injury and multiple skull fractures, he was taken by air ambulance to Aberdeen Royal Infirmary where, at 1939 hours on 7 April 2024 he was determined to have died.

The post mortem stated the cause of death to be “Fatal head injury sustained as a result of a precipitate descent from height in an incident at work”.

The Crown, in their agreed narrative, have already acknowledged the consent of Mr Guthrie’s family for his organs to be made available for transplant. It is appropriate that the Court also commend Mr Guthrie’s family for displaying such altruism at what must have been a very difficult time.

Defence Submissions

Senior Counsel for Allan’s of Gillock, in addressing the court in mitigation, described the company as a family-owned business, established in 1980, specialising in the supply of building materials across the Highlands and Northern Isles. It was submitted that the company had a loyal customer base and a dedicated and experienced workforce.

It was further submitted that the company had carried out the appropriate risk assessments, and had the appropriate health, safety and environmental systems in place. This was not disputed by the Crown. Indeed the Crown narrative included reference to Mr Guthrie offering assistance with the unloading of trailers being contrary to the company’s safe system of work.

More particularly, it was stressed that the company had no previous convictions and has a responsible attitude to safety in the workplace.

Notwithstanding the above submissions, Senior Counsel for Allan’s of Gillock accepted that the company was in breach of the duties owed under Section 3 of the Health and Safety at Work Act 1974.

However, it was pointed out that safety measures were in place, and that the fault lay in not ensuring that they were properly enforced. Specifically, it was stated that all Allan’s of Gillock staff had the appropriate training and qualifications. In addition, that Mr Guthrie was an experienced HGV driver employed by a reputable sub-contractor was advanced as justification for assuming that he could be relied upon to work in a safe manner.

Senior Counsel submitted that the company responded appropriately to the accident which caused Mr Guthrie’s death, suspended work immediately, carried out an internal investigation, co-operated fully with external investigatory authorities and sought to have the resultant court case resolved as quickly as possible.

Senior Counsel also made reference to improvements to the company’s safe system of working, but did not provide details of these improvements.

However, the agreed Crown narrative did provide details of these improvements, specifically to visiting delivery drivers being required to remain in an indoor area, and customers being excluded from the yard, whilst unloading is being carried out. Reference was also made to tighter controls on circumstances in which climbing onto loads by employees would be permitted.

In short, it was submitted that Allan’s of Gillock had appropriate safety measures in place for the loading or unloading of trailers, their failure lay in omitting to ensure that others not in their employ either complied with these measures or took no part in loading or unloading trailers, and this omission has been addressed by the introduction of more stringent safe systems of work.

The Sentence

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

The first step in this process is to assess the level of culpability and harm.

On the information before the court, I was unable to conclude that the company’s failings constituted a deliberate breach of or a blatant disregard for the law, or indeed a serious or systematic failure to address risks to health and safety. Accordingly, I could not find that appropriate culpability level to be “very high” or “high”.

However, I was also unable to conclude that the failings were minor and occurred as an isolated incident, and therefore I could not find the culpability level to be “low”.

This led me to the conclusion that the appropriate culpability level should be “medium”, in essence that safety systems were in place but were not sufficiently adhered to or implemented.

In assessing the seriousness of the harm risked, given the accident led to the death of Mr Guthrie, the only appropriate  level is A. I thereafter found the likelihood of harm to be medium, given the overall circumstances as presented to the court. This gives a provisional harm category of 2.

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 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 2.

The second step involved considering the financial circumstances of the company in settling upon an appropriate financial penalty. The information provided to the court, in the form of three years’ accounts, leads to the conclusion that Allan’s of Gillock is a small company. This provides a suggested starting point of £54,000 for any financial penalty, within a range of £25,000 to £230,000. Given that the sentencing guidelines define  a “small company”  as one with a turnover between £2 million and £10 million, and further given that Allan’s of Gillock consistently has a turnover towards the top end of that range, and indeed in the year ended February 2022 had a turnover of over £10 million, I felt it appropriate to settle upon an adjusted starting point of £70,000.

The third step involved consideration as to adjusting the starting point in light of any aggravating or mitigating factors. I found there to be no aggravating factors. I did find there to be mitigating factors, namely the company’s lack of previous convictions, the evidence of steps taken to address the flaws in the safety systems and the level of co-operation with the Local Authority and Police Scotland investigations.

Finally, in light of these mitigating factors, I determined the headline sentence to be £48,000.

I noted the consistent figure for Allan’s of Gillock’s turnover to be in the region of £9 million per annum, and accordingly the level of fine is proportionate to the overall means of the company. More specifically, I found that this level of fine should not adversely affect the company in making restitution to the family of Mr Guthrie, or improving conditions to comply with the law, and there would be no significant impact on staff, customers or other third parties.

Accordingly no adjustments fell to be made to take into account the company’s financial situation.    

Finally, the matter having been resolved by way of Section 76 procedure and the plea being tendered at the earliest possible opportunity, the fine is reduced by one third, giving a final figure of £32,000.

19 August 2026