SENTENCING STATEMENTS

On sentencing, Sheriff Mohan made the following remarks:

"This was a plea of guilty under a section 76 indictment by A & D Logistics Ltd, a haulage company, to a charge under the Health & Safety at Work Act. The prosecution resulted from an injury which was sustained by their employee, Michael McGonigle, on 12 March 2020 at the company’s premises in Linwood.

"When the case last called in court the plea of guilty was tendered. I heard a full narration of the agreed background, which followed extensive negotiations between the Crown and the company’s representatives. Although it is now more than six years since the accident happened, cases prosecuted under health and safety laws can take some time because of their complexities. This was a plea of guilty tendered at continued pleading diet meaning there was no requirement for a trial to be assigned. In the time since the guilty plea was given to the court I have considered the detailed written submissions as well as the productions lodged and the relevant authorities.  

"The accident to Mr McGonigle occurred when he was employed as a welder by A&D Logistics. On 12 March 2020 he was on the top of a shipping container carrying out a repair. The container was within the company’s yard in Linwood. Mr McGonigle was working outdoors in poor weather. There was a tent-like structure formed to enable him to climb onto the top of the container and to protect him from rain. However, the structure itself was inadequate. It may have looked like it was providing protection, but it was not secured to the ground or the container. It was therefore unstable. Although it had chains, there was no effective method of those chains holding it in place. The structure consisted of a ladder, a frame and a tarpaulin stretched over the top to provide some protection from the rain, but it was the lack of stability and security which ultimately caused a difficulty. It appears that Mr McGonigle was not wearing any PPE. He had been employed by the company as a welder for only four months at the time.  

"I recognise that a repair to a container – especially its roof - was not a main part of the company’s operation. They are a logistics company dealing with haulage through its fleet of lorries. This was a repair to one of their pieces of plant. But carrying out welding repairs and maintenance was Mr McGonigle’s job. The accident brought into sharp focus that, despite having been an employee for only a few months, he was left to simply do what he could to fix the roof of this container. It was a windy day when the accident took place. The structure below which he was working appeared to topple over in the wind because it was not secured. That had the effect of knocking Mr McGonigle off the container and he fell nine feet onto the ground below. However, no one is exactly clear about precisely what occurred. Mr McGonigle’s memory after the event was very limited due to his injuries; there was no CCTV and no other person observed the events.

"Mr McGonigle was found by a colleague lying on the ground beside the container. He suffered spinal, chest and brain injuries and has been left with the consequences of that. This incident occurred only a couple of weeks before the whole country went into lockdown as a result of Covid-19. Mr McGonigle and other employees were furloughed by the company during the pandemic. In due course, efforts were made to support his return to work, but he was unable to continue with the company and was made redundant.

"This plea was negotiated and represents an acceptance of responsibility by the company at an early procedural stage. I note, too, that the company itself had expanded over about twenty years and is now quite a major employer within its locality. But, alongside that organic growth, it would appear that appropriate health and safety systems had simply not kept up. Even recognising that the welding repair of a shipping container was incidental to the company’s core activities of transportation, the approach to health and safety at the time of the accident seems to have been somewhat haphazard.

"When the accident occurred, Mr McGonigle was working outside. It is accepted, of course, that anyone doing so is at the mercy of the elements. But that is why mitigations should be in place. Here, it seems the company failed to consider that. There was no training, no PPE and no secure structure for the employee to work at height while outside. The report of the accident to the HSE was delayed for about sixteen months, although I accept the explanation that the onset of the covid pandemic and its catastrophic disruption to the ordinary life the country was the major factor in that delay.  

"Since the accident in March 2020 the company has taken major steps to improve its health and safety systems. It has purchased an expensive piece of mobile plant which allows employees safe access to areas such as the top of a container. There is a new health and safety lead employed by the company. However, a significant concern in this case is that the company has a previous conviction for a health and safety breach. That conviction was recorded in October 2020 which, of course, was some months after the accident to Mr McGonigle. The incident leading to that conviction was before the date of this incident, and involved an employee suffering injury while drying out the inside of a container. All of that might suggest that the company had not learned lessons by March 2020.

"In sentencing, I have to consider aggravating and mitigating features of the case and its whole circumstances as well as the record of the company concerned. There are positive elements to be noted: how this was an isolated incident, the repair was not part of their core activities, and they have taken significant steps to remedy the dangers and risks that were present. However, the previous conviction remains an aggravating feature. There is also the rather alarming background of this relatively new employee being left to simply get on with it. I have had to take account of all of those factors.

"Sentencing an offence of this nature is not a civil claim. The court is not calculating appropriate compensation to the injured party. It is a different exercise altogether. 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, and Dundee Cold Stores v HMA both from 2012, and also Scottish Power Generation Ltd v HMA from 2016, all decisions on appeal. 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.

"I turn now to the financial position of this company and my calculation of the appropriate level of fine. I accept the submission that the level of culpability in this case can be regarded in the medium category and the level of harm can be assessed likewise. It is also clear from recent years’ accounts that the organisation falls into the small company category.

"I was provided with detailed financial information from the company itself at the time of the plea, supported by a letter from independent accountants. When the Covid-19 pandemic hit the UK just shortly after this accident the company lost 37% of its business overnight. In the years since, it has steadily recovered its level of business. Documentation from earlier this year showed the cash flow position it faced. A more recent communication within the last two weeks confirms the difficult financial position faced by the company in light of further increased costs and financial pressures. Not least of these is the recent volatility in the Middle East which has led to a sharp increase in fuel prices. So the financial picture remains challenging for the company. Against that background, I have to assess the appropriate level of fine to take account of the offence to which the company has pled guilty. I also have to be mindful of comments in an earlier case from the Court of Criminal Appeal that it is important that the financial viability of a company should not be placed at risk by the level of a fine.

"It is clear from the information provided that A & D Logistics are a local company which has grown organically in the last twenty or so years to become a larger organisation and significant local employer. That growth did not result in a more coherent approach to health and safety. The circumstances of this offence, and indeed the previous conviction under this legislation, suggested a haphazard approach to health and safety matters. This is somewhat ironic considering that, in its core activities, the company clearly has a good record and has won safety awards in relation to its vehicles and driving. I do accept that significant steps have been taken since 2020 to improve its health and safety procedures, including the purchase of relevant safety equipment for the type of task being undertaken by Mr McGonigle on the date with which this charge is concerned, and the employment of a health and safety professional who reviewed the company’s systems and effected necessary changes.

"Drawing all of these points together, my starting point for the level of fine is £75,000. Since this was a plea of guilty resolved by section 76 procedure which avoided assigning a trial or calling witnesses to court, the company is entitled to a reduction from the fine of one third. This leaves a figure of £50,000, which is the fine I will impose. A victim surcharge will also apply and I will allow a reasonable time for repayment of that sum."

9 April 2026