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HMA v Core Cut Limited
Nov 3, 2022
On sentencing Sheriff McCormick made the following remarks in court:
"Core Cut Limited have pled guilty, that on 22 August 2019 at the St Enoch Centre, Osborne Street, Glasgow it did fail to make a suitable and sufficient assessment of the risks to the health and safety of Derek McLean to which he was exposed whilst manoeuvring a BROKK 260 tracked remote controlled demolition machine from one level to another via a staircase.
I have been advised that the evidence suggests that Mr McLean was having difficulty with the tracking operation of the BROKK 260 machine and, in particular, difficulty gaining grip or purchase as the machine was being manoeuvred remotely up a stairwell.
I begin by acknowledging that no penalty which this court can impose will reflect the loss of life of Derek McLean. He was aged 43 at the time and is, I am advised, survived by his parents and three children.
Mr McLean was a diamond drilling operative and had commenced employment with Core Cut Limited in June 2011. He had an excellent reputation on site and I was advised that he was spoken of in extremely high terms by all colleagues. Indeed, he was recognised as an expert in his field with a particular expertise in the use of BROKK machinery.
Mr McLean had completed a BROKK UK Refresher Training Programme on 23 April 2019. Within that training programme Mr McLean had completed an assessment which indicated that he was aware that when operating a BROKK machine on an incline, the operator should be “uphill of the machine”.
The precise circumstances of the accident on 22 August 2019 are unknown but CCTV footage shows Mr McLean emerge from the stairwell apparently part way through tracking the BROKK 260 up stairwell 35. He finds two wooden scaffold boards and carries those into the stairwell. The use of timber boards when tracking upstairs is not an uncommon practice among BROKK operators. Following the incident one of the scaffold boards was found resting against a wall with the second situated underneath the left track of the BROKK machine.
The BROKK 260 machine is a 3.5 tonne robotic machine which consists of an articulated three section hydraulically powered arm, attached to an upper structure that is mounted on a slew ring on top of a rubber tracked undercarriage. The upper structure can rotate 360 degrees and, at the time of the incident, had a breaker attachment deployed to punch through concrete.
It is accepted that in the week commencing 19 August 2019 the machine had been taken down stairwell 35 and out of the St Enoch Centre. The machine had been packed and ready to leave. However, on 21 August it was decided that the machine would be needed again upstairs.
I do not propose to rehearse what is known of the incident itself. Shortly before 3 pm on 22 August 2019 Mr McLean was found trapped between the machine and a concrete wall to the left of stairwell 35. The machine was part way up the third set of steps that make up stairwell 35, nearly at level 1. The remote control which Mr McLean had used to operate the machine was around his waistband.
As I have indicated, no penalty which this court can impose will reflect the consequences of this incident to Mr McLean, his family or friends.
Derek McLean was employed by Core Cut Limited. Core Cut Limited has no previous accident or enforcement history and no previous convictions. For sentencing purposes it is classified as a small company. The court’s function in these particular circumstances is to impose a financial penalty having regard to the nature of the breach and the circumstances. I have been referred to a number of authorities as to how the court should go about its task. The English Sentencing Guidelines are a broad crosscheck and are not to be applied in a mechanistic fashion.
The principles which the court must take into account include that where a death occurs as a consequence of the breach, that is an aggravating feature as is the degree of risk and extent of the danger and whether this was an isolated incident or one continued over a period.
However here it is accepted that death did not occur as a consequence of the breach. Mr McLean was behind the machine on an incline where he should have been in front of it. I am told that the operational pitch guideline of 30 degrees was a recommendation and applied to its operational status rather than to its transport.
It is conceded that the machine had successfully negotiated the same stairwell previously and that, after the accident, a BROKK engineer experienced no difficulty in taking the machine up to the landing above and then back down.
Further mitigating factors include that the lack of an assessment was not profit motivated. There had been an assessment but that was not sufficiently detailed. Case law informs that further sentencing factors include a prompt admission of responsibility, any steps taken to remedy deficiencies, a good safety record, the resources of the offender and the effect of a fine on its business are also to be considered.
Nevertheless the objective of a fine should be to achieve a safe environment and bring that message home, not only to those who manage a corporate offender, but also to those who own it as shareholders.
Senior Counsel for the company invited me to impose a monetary penalty of £3,000 and referred to the English guidelines for a small company, where the starting point is £3,000 but where the range category is £700 to £14,000.
Weighing the various factors in the round so to speak and using the English Sentencing Guidelines as a cross check, it seems to me that, notwithstanding what was submitted that this was a technical failure to carry out a detailed assessment, such assessments inform operatives – even expert operatives such as Mr McLean - who might then alter their working practices – so as to advance safe systems of work in Scotland. Overall, I assess the appropriate cross check within the English guidelines to be at the lower end of culpability the category above that indicated by Senior Counsel.
In my opinion the appropriate fine is £15,000 reduced to £10,000 to reflect the plea being tendered at the earliest stage."
3 November 2022