Knowing the Risks
23.02.2011
Knowing the Risks
A builder has appeared in court for risking the safety of his employees and members of the public by leaving a structure in danger of collapse.
Ian Behagg was refurbishing two terraced houses in Lincoln city centre as part of work to convert them into flats. On 9 February 2010, officers from the local council’s building control team visited the site and became concerned that structural elements of the building posed risks to safety.
The council subsequently relayed their concerns to the HSE, who visited the site the following day with a structural engineer. The inspection found that not only had internal supporting walls and structures been removed but temporary supports had been erected in the wrong places, which had resulted in cracks starting to appear on the building. They also found that Behagg, who had assumed the responsibilities of site manager, had not carried out an asbestos survey before starting the work.
Behagg was subsequently issued two Prohibition Notices, which required work to stop until a competent site manager had been appointed, and an asbestos survey had been conducted.
HSE inspector Stephen Farthing said: “Mr Behagg’s blatant disregard for health and safety put both workers and members of the public in danger. Had the building collapsed, the consequences might have been fatal.
“HSE will continue to clamp down on small construction companies that fail to take the health and safety of their employees and the public seriously.”
Appearing at Lincoln Magistrates’ Court on 7 February, Behagg blamed his employees for the safety breaches as it was they who were carrying out the work. He nevertheless admitted to breaching reg. 28(1) and reg. 28(2) of the Construction (Design and Management) Regulations 2007, for allowing employees to work in and around an unsafe structure, and for not having in place adequate temporary supports.
Behagg also said he had no previous convictions and had complied with both Prohibition Notices.
He was fined £1000 for each offence and ordered to pay £1053 towards costs.
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23.02.2011
Knowing the Risks
The first company to stand trial under the Corporate Manslaughter and Corporate Homicide Act 2007 has been fined £385,000 after being found guilty by the jury at Winchester Crown Court.
The conviction of Cotswold Geotechnical Holdings Ltd came after a two-week trial at the court, where the company answered charges by the Crown Prosecution Service in relation to the death of employee Alexander Wright on 5 September 2008.
In handing down the sentence on 17 February, the judge confirmed the company could pay the fine over a 10-year stretch, with £38,500 due every year of that period. The company does not have to pay any costs.
Mr Wright, 27, had been left working alone in a 3.5m-deep trench to ‘finish up’ after the managing director of Cotswold Geotechnical Holdings, Peter Eaton (pictured centre), left for the day.
A short time later, the trench collapsed on Mr Wright and buried him. On hearing his cry for help, one of the plot-owners called the emergency services while another ran to the trench where he found Mr Wright buried up to his head. He climbed into the trench and removed some of the soil to enable the junior geologist to breathe, but a further torrent of earth fell into the pit, covering Mr Wright completely. Despite the plot-owner’s best efforts to free him, Mr Wright died of asphyxiation.
Peter Eaton had originally been charged with manslaughter by gross negligence, as well as a health and safety offence, in his own capacity but these charges were dropped after a successful application by his defence team last October on the grounds of his poor health. The company also originally faced a separate health and safety offence, but this was dropped by the prosecution in January this year after the judge raised the issue of whether the two different burdens of proof for the two remaining charges might confuse a jury.
In convicting the company on 15 February, the jury found that the company’s system of work in digging trial pits was wholly and unnecessarily dangerous. The court heard the company ignored industry guidance, which prohibited entry into excavations more than 1.2 metres deep, by allowing junior employees to enter into and work in unsupported trial pits, typically from 2 to 3.5 metres deep.
Detective Inspector Giulia Marogna, of Gloucestershire Constabulary, who investigated the case with the support of the HSE, described Cotswold Geotechnical Holdings’ approach to health and safety as “cavalier”, and the way it taught and supervised its junior engineers as “inherently dangerous”.
She added: “Every year people are killed and seriously injured following the collapse of an excavation. This case should serve as a reminder to the construction industry that vertical sides of excavations can never be relied upon to stay up without support, no matter how stable the ground may appear to be.”
Kevin Bridges (pictured, far right), partner at Pinsent Masons, which represented Cotswold Geotechnical Holdings, said: “The company will, over the coming days, consider all of its options, including any potential grounds of appeal. It remains to be seen whether this case has provided any general assistance in the interpretation of what is the most serious offence that a company can commit, and whether it will give rise to wider problems for the CPS in prosecuting this new and controversial legislation in the future.”
On behalf of the company and Peter Eaton, Bridges said they had held Alex Wright “in the highest regard and deeply regret the tragic incident which resulted in the loss of this talented young man”.
Paul Verrico, a solicitor-advocate with Eversheds, said the case is unlikely to be a landmark in terms of a test of the new law, but believes the conviction “will doubtless be hailed by both the CPS and the HSE as a success”.
He added that the physical stress of the process will not have been lost on those holding senior positions. He said: “It is well documented that the managing director [Peter Eaton] has been very ill, in no small part due to the stress of being charged with manslaughter in his own right and the undoubted impact on his business.
Commenting on the level of the fine, Helen Devery, a partner at Berrymans Lace Mawer LLP, said: “The size of the fine is intended to make a significant impact on any organisation and, while Cotswold Geotechnical Holdings may have had a modest turnover, larger and more profitable organisations, successfully convicted, can expect fines well above the Sentencing Guidelines Council’s £500,000 starting point.”
Following the jury’s verdict, Mr Wright’s family revealed their relief that “justice has been done” but stressed that, having visited the trench site, they couldn’t believe that “any employer of good integrity or sound intentions would allow or expect any employee to commit themselves to such a danger”.
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23.02.2011
Knowing the Risks
A teenager suffered horrific burns when he was set alight while working with flammable chemicals at a construction depot in Kent.
On 26 October 2009, an 18-year-old man was spray-painting a lighting tower in a shed at O’Keefe Construction Ltd’s depot in Sevenoaks. He was using thinners in the process and accidently spilled some of the chemical on to his trousers. As he went to his locker to find a change of clothes, he walked near a gas burner, which was being used to heat the workshop. His clothes caught fire and he ran outside, where his colleagues used a hose to put out the flames.
He suffered serious burns to his legs, left arm and hand and spent 16 days in hospital. He has subsequently undergone skin-graft operations and was unable to return to work for six months.
The HSE’s investigation found that the company had failed to ensure that paint containers had their lids on, and they were not stored in fire-resistant boxes. HSE inspector, Caroline Penwill, revealed the firm should have been aware that mixing paint and thinners in the shed could potentially lead to an explosive atmosphere, and it should have ensured that no open flames were present in the same space.
She said: “The process of risk management involves assessing the risks that arise in the workplace and putting sensible health and safety measures in place to control them.
“In this case, the company had assessed the risks from paint-spraying and had identified measures to control the risks, but had not put them in place. It is important that the findings of a risk assessment are acted upon. Had the company done so, then this terrible incident could have been prevented.”
O’Keefe Construction Ltd appeared at Sevenoaks Magistrates’ Court on 15 February and pleaded guilty to breaching s2(1) of the HSWA 1974. It was fined £20,000 and ordered to pay £6329 in costs.
Following the hearing, a company spokesperson said: “We are deeply distressed following the accident in October 2009 and the injuries sustained by a member of our team. Following an investigation by the HSE, with whom we fully co-operated, and resulting in our plea of guilty, we would confirm that the company does not wish to be in this position ever again.
“We are constantly looking at ways to improve the business with health and safety being our number one priority. We are pleased to report that the injured party returned to work and remains within our employment. Our health and safety practices remain under constant scrutiny to ensure every member of our team has the surety of being safe in an environment which is accident and incident free.”
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23.02.2011
Knowing the Risks
A health and safety manager who suffered serious burns when a can of solvent exploded has received a suspended prison sentence for putting other workers at risk.
Chelmsford Crown Court heard that Phillip Dutton, 41, was responsible for health and safety at metal distributor, South Essex Stockholders Ltd. On 3 February 2009, he was burning the contents of a skip at the firm’s depot in Vanguard Way, Shoebury in order to compact the waste.
He asked a junior member of staff to fetch a can of surface cleaner so he could pour it into the flames as an accelerant. When he poured the solvent into the fire, it ignited and caused the can to explode and shower him with the substance. He suffered serious burns across his body and spent four months in hospital receiving treatment, including skin grafts.
Southend-on-Sea Borough Council environmental health officer, Dan Jarvis, told SHP there was a culture of adding accelerants when burning waste in skips at the site, and Dutton had not identified the risks associated with adding flammable substances to fires. He said: “As health and safety manager, Mr Dutton should have realised the risks associated with adding flammable solvents to a fire. He put other workers at risk by carrying out this action and by allowing this practice to be carried out at the site. Furthermore, our investigation found that there were inadequate procedures in place to ensure that hazardous substances were stored in a safe place.”
Dutton appeared in court on 15 February and pleaded guilty to breaching s7 of the HSWA 1974. He was given a four-month prison sentence, which has been suspended for two years. He was also ordered to pay £5000 towards costs.
In mitigation, Dutton, who now resides in Cyprus, admitted that he had been foolish to add the solvent to the fire. He urged the judge to be lenient with his sentence as he has already suffered significantly from his own mistake.
His employer, South Essex Stockholders Ltd, was found guilty on 9 December of breaching s2(1) of the HSWA 19.
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