Fish farm wins appeal over worker deaths fine

A fish farm business which admitted health and safety breaches over the deaths of two workers has won an appeal and had a fine of £600,000 almost halved.

Maarten Den Heijer, 30, from Oban, Argyll, and Robert MacDonald, 45, from Appin, Argyll, died of oxygen starvation trying to rescue a colleague who had been overcome in a chamber of a barge moored at a salmon farm.

Scottish Sea Farms Ltd accepted it had failed to assess the risks associated with working in confined spaces, including depleted oxygen levels, and a sheriff decided on a fine of £600,000.

However, the Court of Criminal Appeal in Edinburgh ruled today that the fine was excessive, even for a company with an annual gross profit of more than £11`million. The court imposed a fine of £333,335.

Lady Dorrian, sitting with Lords Mackay and Menzies, said the sheriff had worked from a starting figure of £900,000 and allowed a one third discount because of the company’s guilty plea.

“In our opinion, a more appropriate (starting) figure is £500,000 which would adequately reflect the gravity of the charge and meet the public interest,” said Lady Dorrian.

The accident happened in May 2009 at a sea farm at Loch Creran, north of Oban.

The barge was used as a store for fish feed, which was kept on deck in containers. Eleven separate confined chambers were below deck. Access was required to investigate a problem with the cabling of a hydraulic crane, and a sealed hatch to one of the chambers was opened.

The chamber was given 20 minutes to vent, and Campbell Files, 42, another Scottish Sea Farms employee, and Arthur Raikes, who worked for Cumbernauld engineering firm Logan Inglis Ltd, went down.

As soon as Mr Files reached the bottom of the chamber, about ten feet below deck, he lapsed in and out of consciousness. Mr Raikes climbed back out on to the deck and raised the alarm.

Mr MacDonald, a volunteer fireman, reached his colleague and sat him up, and gave a thumbs up sign to people on deck, but he then sat down and his head slumped.

Mr Den Heijer went into the chamber but he, too, was overcome in a matter of seconds.

The emergency services were called and firefighters wearing breathing apparatus lifted the three men from the chamber. Only Mr Files survived.

The oxygen level in the chamber was found to be 13 per cent against a norm of 20.9 per cent. Concentrations of 16 per cent or less can lead to rapid unconsciousness and death, with generally no warning to alert the senses.

Lady Dorrian said the Health and Safety Executive had reported that Scottish Sea Farms had a good health and safety record and took the issue of health and safety seriously. The company had no previous convictions. However, it could offer no understandable explanation as to how and why it or its specialist advisers had failed to identify the risk posed by confined spaces in the Loch Creran barge, or barges at 40 other farms. Remedial measures had been taken in light of the accident.

“In our opinion, the breach of statutory duty to which (the company) pled guilty was a very serious one. It was a significant cause of the deaths of two of their employees and exposed a third employee to the risk of death...(however) we take the view that the starting point of £900,000 adopted by the sheriff was excessive,” added Lady Dorrian.

Logan Inglis had admitted “a less serious” offence in relation to its employee, and was fined £40,000 by the sheriff. Again, the appeal judges held the fine to be excessive, and reduced it to £20,000.