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April 17, 2019

Westdale Services Ltd is a national solid wall insulation and general construction contractor. In 2017, Westdale was engaged to install external insulated render to five blocks of flats in Cwmbran. The work involved the erection of scaffold to external walls. On 6 May 2017, Callum Crowley and Marcus Heath (two 12-year-old boys), entered the construction site and approached one of the blocks where the scaffold structure could be accessed from the ground by ladder. There was in place a ladder guard, which was the only measure preventing unauthorised access to the scaffold. However it was inadequate and only partially covered the rungs of the ladder, and did not prevent either child gaining access to the scaffold. Callum climbed to the highest point of the scaffold when he then slipped and fell approximately ten metres to the ground. He sustained life-changing injuries. At the sentencing hearing, his mother read a moving statement describing the events and struggles experienced by her and her son since.

The Company was charged with an offence under s.3(1) of the Health and Safety at Work etc. Act 1974 for its failure to conduct its undertakings in such a way as to ensure, so far as reasonably practicable, that persons not in the defendant’s employment, who might be affected thereby, are not exposed by the undertaking to material risks to their health or safety.

Although the ladder guard had been supplied by the scaffolding company, its inadequacy was plain to see. The Company had not documented any consideration and rejection of other control measures, and had failed to respond to a notification that children had been seen climbing on the scaffold on an earlier occasion.

Given that it was thankfully not a fatality case, it was dealt with by a District Judge in the Magistrates Court. In considering the Sentencing Guideline, there were issues on the precise level of culpability, the level of Risk of the level A harm that clearly occurred and, most significantly, the relevance of Westdale’s relationship with its parent company. Given the failings referred to above, and the location of the site in an estate with many families and a nearby school, the District Judge considered the Culpability to be at the higher end of medium and that the risk of level A harm was high, placing it in Harm Category 1. In addition, this was also a case in which a number of children were exposed to this risk and the breach was a significant cause of actual harm.

Three years of accounts showed that Westdale’s turnover had moved it from being a medium-sized company, to a small company, to a micro company based on its most recent accounts. It no longer tendered for contracts but played an administrative function for other contracting companies under the umbrella of Westdale Group Ltd, a set-up only conceived shortly before the accident. The most recent accounts showed that that Westdale remained in a healthy financial position despite its reducing turnover figures and so the District Judge resolved to sentence it as a small company. This resulted in a starting point of a fine of £300,000. Considering the recent cases of R v NPS London Ltd [2019] EWCA Crim 228 (26/2/19) and Faltec Ltd v HSE [2019] EWCA Crim 520 (28/3/19), he also concluded that exceptional circumstances existed to take the turnover of the parent company into consideration in deciding not to reduce the sentence at Step 3 of the Guideline.

Mitigation that was present and credit for a prompt guilty plea took the fine to £160,000. Full costs of £22,000 were also ordered.

Alan Fuller