The Scottish Coal Company Ltd were fined £400,000 by Sheriff Montgomery today (Tuesday) after pleading guilty to failing to provode a safe system of work at the Pennyvenie open cast coal site near Dalmellington, Ayrshire.

Brian French and Colin Ferguson were killed in 2007 after a Land Rover in which they were travelling collided with a heavy coal dump truck.

The fine was reduced from £500,000 as a consequecne of the firm's previously positive record of health and safety, and gulity plea.

On sentencing Sheriff Montgomery made the following statement in court.

“Before I impose sentence there are aspects of it which the public in general and the families and friends of those who died in this accident in particular should be made aware of. These are:-

First, the only competent sentence which the Court can impose is a fine the extent of which is unlimited in terms of the Health and Safety at Work Act 1974.

Secondly, the level of the fine which is imposed is not intended to represent the value of the lives which have been so tragically lost. Claims for compensation will no doubt require to be dealt with either extra judicially or as part of a civil process. That, however, is not a matter for this Court. It follows that the fine which this Court imposes must not be taken to be any equivalent of the value of the lives lost.

Thirdly, in selecting the appropriate amount of the fine the Court must try to balance various factors including the nature of the offence having regard to the facts and circumstances surrounding it and the financial standing of the company. A fine must on the one hand send a clear and unambiguous message to companies involved in like or similar operations that the Courts regard such offences very seriously, particularly where they result in death.

On the other hand the fine must not be pitched at such a level as would affect the viability of the company and consequently set at risk the jobs of those who continue to be employed by it – the burden must fall on the shareholders and not indirectly on the employees.

In this case the offence consists of two failures. The first is a failure to provide a safe system of work for the movement of vehicles and plant at the site in that relatively small vehicles such as the Land Rover in which the two deceased were travelling were not prevented from being operated in close proximity to large vehicles including dump trucks while they were being operated with reduced visual fields thereby creating a risk of collision. The second is a failure to provide the operators of all mobile plant with suitable means of communication or other equipment to reduce the risk of collision and injury.

These failures are summarised as follows in the agreed narrative helpfully provided in type script for the Court’s convenience:-

“On entering the site the fitters have contravened the Site Managers Vehicle Rules which instruct the operators of light vehicles such as a Land Rover not to enter the loading zone until excavators and trucks were stationary.
It is apparent that despite there being Site Manager’s rules for the movement of light vehicles within the site these were not enforced and staff at all levels regularly drove around the site in Land Rovers entering live dig areas.

Although the dump trucks in question were fitted with mirrors it was known from the prior accident that these trucks had blind spots that persisted.

Options open to Scottish Coal to remedy this could have included extra cameras on the offside with an internal monitor or radar system to warn of approaching vehicles. Further preventative measures would have included fitting the Land Rovers with poles and flags at the rear which could have alerted the dump truck drivers. Clearly enforcing their own Site Manager Vehicles Rules and having two way radios available for all vehicles on site would have been simple and relatively inexpensive ways of preventing this tragedy.”

The accident occurred against a background of a strikingly similar accident at the same site on 23rd March 2005. Fortunately no one died or was injured in that accident. That however should have alerted the company of the need to put in place systems designed to reduce the risks of similar accidents occurring again. They failed to do so and that failure is in my view of considerable magnitude.

The Company has one previous conviction under this legislation for which a fine of £2000 was imposed.

Mitigating factors comprise:-

(a) The Company have well documented policies and procedures and structures surrounding these in relation to Health and Safety.
(b) They are members of and have received Health and Safety awards at the highest level from The Royal Society for the Prevention of Accidents.
(c) The Company pled guilty to this offence at a continued first diet thereby avoiding the need for a trial. Recognising that, as I am bound to do, I have reduced the amount of the fine which I would otherwise have considered appropriate by 20%.

I am obliged by law to take into consideration the means of the Company so far as known to the Court. A copy of the Report and Financial Statements for the year ended 24th March 2007 was produced. These reveal a loss before taxation in that period of £1,433,282 compared with a profit before taxation in the preceding year of £4,951,000. The solicitor for the Company said no dividend had been declared for the last eleven years and that significant investment amounting to £23,500,000 was proposed. Beyond that he made no comment on the financial standing of the Company. It is clear from the Financial Statements that the Company has substantial assets. The Company has 693 employees of which 563 are employed in open-cast sites.

I impose a fine of £400,000 recoverable by civil diligence”.