EPIC Showdown: HMA Takes on Broomhall Ltd – Who Will Emerge Victorious?!

In passing sentence, Sheriff WM Wood made the following comments in court:

“Broomhall Limited has pleaded guilty to one charge of failing to provide a safe working system to ensure the safety of its employees by: failing to carry out a proper and sufficient assessment of the risks arising from the operation of forklifts on its premises in inches; failing to ensure that the people who operated the forklifts there had satisfactorily completed formal training to do so; and failing to implement an adequate traffic management plan at your facility to segregate vehicles and other people who work there during forklift operations and thereby minimize the risk of such people being struck by forklifts.

As a result of these failures, on April 11, 2019, John Gordon Brodie, then 61 years old and employed by the company as a supervisor, was struck by a forklift driven by an employee kidnapped days earlier. Mr. Brodie was pushed against the rack and his foot sustained devastating injuries that led to a below-knee amputation. Brodie intended to work until he was 70, but he may never work again; his activities and hobbies are severely restricted; and he is only capable of driving an adapted car. There can be no doubt that his injuries are life changing. Allow me to express the court’s condolences and concern for the situation in which Mr. Brodie and his family now find themselves.

It was as a result of the injuries sustained by Mr Brodie that the company’s failings came to light after an extensive investigation by the Perth & Kinross Council as the enforcing authority.

The crime committed is to create a risk of harm. To determine the appropriate sentence, I need to take a staged approach to assess levels of guilt and damage taking into account existing case law and a sentencing guidance matrix in Scotland. Thereafter, the English Sentencing Guidelines, to which both parties refer, provide a cross check for any interim assessment I arrive at.

It is common ground between Scotland’s approach and the Guideline that ‘the fine should reflect both the degree of fault and the consequences in order to arouse appropriate concern on the part of shareholders about what has occurred’.

Clearly, that there was a life-changing injury to an employee must weigh heavily in court, although that is not a dominant feature for sentencing.

From the narrative I heard, the defendant may be lucky that the dates of the defamation are in such restricted terms: the fact that there have been no previous security incidents of any significance may only be an indication that the company has routinely employed to persons with a sufficient degree of safety awareness and common sense that serious injury has been avoided.

In any case, the existing systems were not satisfactory. There is an agreed narrative of the failures, to which I will return shortly. Based on that narrative, it seems to me that if there had been something as simple as clear and unambiguous markings on the warehouse floor to guide the forklifts, then Mr. Brodie’s injury could have been prevented entirely.

The forklift driver had certainly received some on-site training and was deemed competent enough to be put to work, but safety risks arise due to a lack of satisfactory formal training (which no doubt would have been more rigorous than the training you received). received) and the absence of an adequate traffic management plan to separate, as far as possible, forklifts and pedestrians. Since the company’s business is retailing and wholesale of animal feed, it can be inferred that there would be a reasonable amount of traffic, both forklift and pedestrian, over the course of any given day. I have noted that the management system for order fulfillment was set up in such a way that traffic should have been one way, but the lack of clear markings taken with the persistent failure to record formal training and refresher training points to the probability of a serious incident at some point.

I have noticed that the company has no prior convictions; that there has been an early recognition of responsibility; that he has fully committed to the investigation; and that it has taken steps to improve its systems. External assistance has been received and the circulation system within the warehouse rack area has been improved. This is all to your credit. It is what I would have expected from a company of the defendant’s type, being a long-standing family business that is capable of retaining its employees over the long term.

This is a relatively small company with modest after-tax earnings. Taking all these factors into account and taking due account of the available Scottish case law, I come to the preliminary view that the appropriate level of fine should start at £40,000.

Going back to the Guidelines, while I consider the severity of the potential harm risked to be death, the likelihood of that occurring should be assessed as Low; That being said, given the nature of the failures in this case, there is a much higher risk that there will be a non-fatal injury resulting in a physical or mental impairment, the probability of which I determine as Medium. In any case, for the purposes of the Guideline, the result is to place the offense in Harm Category 3. Since the number of employees exposed to risk at any given time is relatively small, I see no need to adjust the harm category. damage. .

Given existing systems, albeit below what was reasonably necessary, I’m willing to accept the claim that the blame probably lies with the lower end of Medium.

The declared turnover of the company places it in the category of a “small” organization for the purposes of the Guideline. Applying these damage category 3 findings and median culpability, the starting point for a fine under the guideline is £24,000, ranging from £12,000 to £100,000. However, since the company’s turnover is at the high end of the “small” organization range, it seems to me that the starting point should be adjusted substantially upwards, to reflect the need for the penalty to be sufficient to raise concerns. by the shareholders in relation to the serious damage caused to Mr. Brodie. I therefore assess that the appropriate starting point in this case before taking mitigation into account could be set at £60,000. Taking into account the substantial mitigating factors that have been identified: the restricted period of the defamation; full cooperation in the investigation; relatively quick corrective action; a radical review of the warehouse order collection system; contracting of external health and safety consultants; and retraining employees, and applying a broad axe, I bring that figure down to £45,000.

In context, the figure I have assessed under the Guideline and that achieved through the Scottish precedent are basically the same. So the appropriate fine to apply is the figure I came up with earlier of £40,000. Since this case has been processed under the s76 procedure, it is required to apply an additional discount for the early resolution of these procedures of approximately one third. The fine is therefore amended to £27,000. This also seems to be a figure within the means of payment of the company.

I am sure that for a rural, family-owned business like the defendant, with many long-term employees, the mere occasion of this incident on April 11, 2019 will remain in management’s memory long after the fine has been paid. . established. It is a stark reminder that regardless of the apparent competence of staff, proper health and safety systems are essential to eliminate, where possible, risks to your employees.”

June 5, 2023