Ben Mack examines the importance of health and safety obligations, from site management to building maintenance, and how failure to comply with the law could lead to corporate manslaughter charges.
On 5 May, Kelvin Adsett was jailed for manslaughter by gross negligence for the death of Amanda Telfer on 30 August 2012. Telfer was crushed to death in Hanover Square, Mayfair, when three large and unsecured window frames weighing more than half a ton fell on her.
Adsett, the supervisor at IS Europe, had been convicted at the Old Bailey on 23 March of manslaughter by gross negligence and offences contrary to section 7a of the Health and Safety at Work etc Act 1974 (“the 1974 Act”). He was sentenced to 12 months’ imprisonment for manslaughter and nine months’ imprisonment for the health and safety offence – the sentences to run concurrently.
Westgreen Construction site manager Damien Lakin-Hall was convicted of offences contrary to section 7a of the 1974 Act and was sentenced to six months’ imprisonment, suspended for two years.
IS Europe, of Slough, Berkshire, was convicted of offences under sections 2 and 3 of the 1974 Act. The company would have been fined £100,000, but its accounts contained only £250.
The two men convicted were responsible for the safety of the construction site, but failed to execute the task of securing the window panels to ensure there was no risk to the safety of those on site or passers-by. Their negligence ended in the death of a young lawyer, which could have been avoided by ensuring all aspects of the project were planned, managed and monitored appropriately.
This tragic incident demonstrates the consequences of workers and companies who do not take their health and safety obligations seriously and highlights the importance of enforcing the law to safeguard workers and the public.
What is corporate manslaughter?
The Corporate Manslaughter and Corporate Homicide Act 2007 (“the 2007 Act”) has made it easier to convict for negligence. It introduced a new offence for convicting an organisation where a gross failure in the way activities are managed or organised results in a person’s death, breaching the duty of care. The 2007 Act’s primary aim is to reinforce the importance of compliance with the Management of Health and Safety at Work Regulations 1999 and make it easier to convict an organisation, especially larger ones, of manslaughter.
A substantial failure by any company must have been at a senior management level, including centralised functions as well as operational management. An organisation guilty of the offence will be liable to an unlimited fine.
Know the risks and share the knowledge
Property owners, occupiers and landlords all need to make sure they follow the law and understand the risks of not doing so.
Property companies are legally obliged to identify and assess sources of risk, and prepare and manage a scheme for controlling them. All companies should regularly review their health and safety management procedures.
Owners and landlords need to ensure they are doing everything by the book as tenants are becoming more proactive in health and safety checks.
The Construction (Design and Management) Regulations (CDM 2015) are the main set of regulations for managing the health, safety and welfare of construction projects. They apply to all building and construction work, which includes new build, demolition, refurbishment, extensions, conversions, repair and maintenance.
Duty of care in practice
The answer to achieving duty of care in practice is maintenance – that means well-managed, planned maintenance programmes. They are the best early warning device we have, identifying hazards before they become disasters.
By implementing a planned preventative maintenance (PPM) programme, health and safety risks can be identified. A well-structured contract with a specialist maintenance company will regularly check and maintain the “conspicuous” buildings elements, such as the roof, walls, windows and so on. It will also include the mechanical and electrical installations. The PPM has the added benefit of optimising the building’s engineering assets in terms of lifespan and performance.
The case for putting into place a comprehensive PPM programme and having a robust health and safety management plan has never been stronger.
A false economy
The rising cost of materials and the uncertainty of securing finance since the EU referendum are probably contributing factors to some property owners cutting back on maintenance. While in the short term this can reduce costs, overall in the long term they will rise, as will the risk of serious building failure.
Cases involving falling debris are investigated by the Health and Safety Executive and may well lead to prosecution and a fine. In serious cases, duty holders can potentially face corporate manslaughter charges.
Inspection means detection
The age, condition and type of building construction will determine the frequency of inspections, but regular inspections for all buildings and putting in place a PPM strategy should be considered a priority.
A PPM inspection will highlight key problems, such as defective materials and the condition of exposed projections, cornices and mouldings that may be susceptible to frost attack.
With an effectively managed PPM in place, landlords and asset managers can be safe in the knowledge that any highlighted repairs are programmed and carried out at the appropriate time.
With the likelihood that wetter and warmer winters will be the future norm in the UK, putting in place a PPM is both a commercially sensible and responsible approach.
Prepare your property now for winter
The winter may seem a long way away but now is the time to look ahead to what the next winter will bring. Wet and windy weather can cause serious problems in buildings, which are not necessarily immediately evident.
The problems often stem from flaws in the building fabric – through poorly maintained roof coverings, blocked gutters and downpipes or gradual deterioration over time of stone/brickwork and mortar joints, which allows water to penetrate beneath the surface. When the trapped water freezes and then thaws, the expansion and contraction cycle can cause cracking in the material and create further openings for water to penetrate.
Earlier this year, during Storm Doris, a woman was hit and killed by part of a two-metre piece of timber from a wooden water tank cover. City of Wolverhampton Council is continuing detailed investigations into the incident, which are due to be completed in July 2017 and include the analysis of maintenance records for work on the roofs. A five-day inquest has been fixed for the week of 2 October.
Over the past year alone, many other incidents have been recorded across the UK and, without intervention, more casualties are inevitable.
10 top tips for avoiding health and safety pitfalls
- Building owners and clients – it is your project, so lead by example for all to follow
- Provide a client brief so that your expectations for the project and for health and safety are understood by everyone involved – what do you want, when and how?
- Allocate sufficient time and resources for a project – this means a realistic programme and project budget
- Make sure all designers and contractors have the skills, knowledge and training to execute their roles – are they experienced and have they delivered this type of project or maintenance programme before?
- If the project involves more than one contractor, you must appoint a principal designer, otherwise the client assumes these legal duties by default
- Provide all the relevant information you have about a site and the project to those who need it at the right time, ie early enough for design and construction risks to be considered
- Check that an adequate construction phase plan is in place before any work starts – work includes deliveries, scaffold erection or site set-up
- When work is being carried out, communicate with the project team in a format that suits you, so that you can check everyone is delivering on their duties – this might mean face-to-face meetings or the team providing weekly reports
- For projects with more than one contractor, check that a health and safety file has been provided at completion. This document will advise on any residual risks and explain how to safely maintain and manage the completed building or site
- If you are unsure on any aspect – eg setting the brief, assessing project team competence, understanding what an adequate construction phase plan is – get advice from a health and safety professional
Ben Mack is a partner responsible for CDM services at Malcolm Hollis
