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HMA v Enva Scotland Ltd.
Nov 17, 2020
On sentencing, Sheriff Pettigrew made the following statement in court:
“Enva Scotland Ltd. pled guilty to a contravention of the Health & Safety at Work etc. Act 1974 , in particular to failing to ensure the provision of such information, instruction and training as was necessary to ensure, so far as reasonably practicable , the health and safety at work of its employees.
For a period of 11 days in March 2018 when the tracked mobile shredder was on hire to Enva Scotland ltd., the Company failed to ensure that all persons engaged in the tasks of cleaning and using the machine had received adequate training, information and instruction on the deployment of an overband magnet fitted to the shredder. As a consequence of the Company’s failings, Mr. Kane, a plant supervisor, tasked with cleaning of the shredder removed retaining pins holding the magnet, causing the magnet to fall upon him resulting in him sustaining fatal injuries.
Although the deceased had received training on a number of topics and disciplines, including a training course on “Managing Safely” which included risk assessment training, he was not listed as a signatory to having read and understood the operating instructions for one of the Company’s own shredders, albeit that shredder did not have an overband magnet. None of the 3 shredders in operation at the Company’s site required or were fitted with magnets, there being at least one fixed framed magnet located on the main recycling line. The Company’s risk assessment documentation in respect of operations made reference to moving conveyors, shredding combs and the need to isolate power when carrying out maintenance. No reference was made to the cleaning of these machines.
The shredder involved in this tragic incident had been previously hired by the Company in autumn 2017. When the shredder was then delivered training was provided to only one of the Company’s employees. No operating manual was provided and no reference was made during the training to the existence of any manual. Subsequently the employee provided the same practical training to the deceased and others. He did not explain or demonstrate how to deploy the magnet. He was unaware it may require to be cleaned.
In March, 2018 as two of the Company’s own shredders had become unserviceable the Company arranged for the hire of the same shredder. When the shredder was returned to site no further training was given to employees on how to use the machine.
On 28 March, 2018 the deceased was instructed to clean the shredder as it was due to be returned at the conclusion of the hire period. Mr. Kane asked a colleague to assist him with cleaning the machine. The machine was switched on and the power isolated. Each employee was wearing safety equipment. There was some general waste located between the magnet, then stowed in its upright position, and the hopper. With the apparent intention of manually lowering the magnet to help free the remaining waste and whilst at ground level the deceased initially removed one of the locking pins by hand. As neither of the employees could free the other locking pin by hand, the deceased sourced a hammer to assist in its removal. The removal of the second pin by Mr. Kane using the hammer, out of sight of others, resulted in the magnet falling upon him under its own weight with the fatal consequences.
Failure to fulfil the general duties imposed by Section 2 of the 1974 Act is recognised as being particularly serious, the section being one of those that is the foundation for protecting the health & safety of the public. Where, as in this case, a death occurs as a consequence of a breach of duty by an employer, that is an aggravating feature.
Having given careful consideration to all that I have been told by the Crown and the Defence I have concluded this is a serious case. It involves the death of a young man aged 28, a father of a young son, someone who tragically is accepted to have had a proactive approach to health & safety.
The failure on the part of the management of the Company was not, I stress, with a view to profit. The failure was to ensure the provision of adequate training, information and instruction on the shredder and in particular on the deployment of the over band magnet. Context is a relevant consideration and something I have taken into account. The failure related to the particular machine and the task being undertaken. It lasted for a relatively short period of time. More than the deceased were however exposed to the risk of harm.
The penalty to be imposed upon the Company by way of fine must reflect both the degree of fault and the consequences. The sentence should act as a deterrent and also satisfy the requirement that, in the interests of the public, the Company be punished for its culpable failure to pay due regard for safety and for the consequences of that failure.
The resources of the Company and the effect of a fine upon its operations are important. The fine should reflect the means of the Company.
I am very much obliged to Senior Counsel for his submissions and helpful plea in mitigation. I have considered with care all that is contained within the written submissions and taken account of all that has been said on behalf of the Company. I have had the opportunity of considering the Accounts of the Company placed before me. The Company employs some 1500 people throughout the UK and Ireland. It has a large turnover which generates a healthy profit. As Senior Counsel recognised the Company is well able to meet a financial penalty.
There are a number of mitigatory factors which reduce the seriousness of the offence:
- The Company has a good health & safety record.
- The Company has no previous convictions.
- The Company fully cooperated with the HSE investigation. The Company complied with the Notice of Contravention promptly and without exception.
- The HSE Report makes clear the Company has a mature health & safety management in place.
- The Company holds ISO accreditation from the British Standards Institution on health & safety.
- Extensive robust steps have been taken by the Company to address the deficiencies identified by the incident. The Company has invested time and resources in adopting and maintaining good health & safety management, evidenced by its recent receipt of an Award from the Royal Society for the Prevention of Accidents and the significant real time reduction in the number of accidents in this calendar year.
I am satisfied that the tragic loss of a popular conscientious employee has had a major impact. There is genuine remorse on the part of all the deceased’s former colleagues at every level up to Board level. I note the Company is endeavouring as best it can to support its workforce and the deceased’s family.
I have carefully considered the Scottish authorities to which I was referred. Having regard to these cases and recognising I am dealing with a fatality, in the exercise of my discretion, I consider the starting point, before any discount to acknowledge the utilitarian value of the early plea of guilty, should be £ 320,000.
I do so having regard to the serious nature of the breach , recognising I am dealing with a case involving a fatality , the numerous mitigating circumstances I have outlined and having regard to the resources of the Company and the effect of the fine upon it.
As the 1974 Act is a UK statute I have had regard, as a cross-check, to the Definitive Guidelines in England in respect of the breach of duty by an employer organisation towards its employees, effective from 1 February, 2016. Following these Guidelines I agree with Senior Counsel that culpability ought to be assessed as medium and in harm category 2, having regard to the number of workers exposed to the risk and recognising the offence was a significant cause of harm. For a Company with a turnover in excess of £50M the starting point given by the Guidelines is £600,000 within a range of £300,000 to £1.5 M.
From the starting point I identify no factors increasing the seriousness of the offence. I am satisfied that ALL of the mitigatory factors set out in the Guidelines are to be found in this case. The fine must reflect the seriousness of the offence, taking into account the financial circumstances of the Company and be sufficiently substantial to have a real economic impact to bring home to management and shareholders the need to comply with health & safety legislation. The Guidelines are nevertheless suggestive of a figure towards the lower end of the range particularly when one bears in mind that the category of a large Company is very wide. That encompasses Companies with turnovers ranging from just over £50m to Companies with turnovers exceeding many hundreds of millions of pounds.
It seems to me that the figure of £320,000 which I have arrived at is both proportionate and reasonable.
To allow a full one third discount would involve too substantial a sum relative to the total. In the exercise of my discretion I allow a discount of 17.5% and therefore impose a fine of £264,000.
As I said when the plea was tendered the issue of compensation falls to be dealt with in the Civil Courts and no Order as regards compensation is made for that reason.”