THREE PROSECUTIONS FOR ONE INCIDENT

On 30 September 2019, an employee of a firm specialising in erecting farm buildings was pouring concrete at a large arable farm in the South of England when the arm of a mobile concrete pump he was using came into contact with an overhead powerline. The worker received an 11,000-volt shock which caused him to require CPR resuscitation and left him in a coma for six days.

The Construction Firm, the Farm Owner and the Concrete Pump Driver/Operator were all sentenced at Oxford Magistrates’ Court.

THE INCIDENT

The construction work taking place at the time involved the development of a new barn and apron complex on the large arable farm

Near the construction site there were two existing overhead power lines. The one that became relevant in this incident carried 11kV, and farm and according to the HSE Inspector who investigated the accident, construction traffic were required to pass below it on a farm track.

The incident happened as workers were completing the concrete apron outside the new barn. This had been going on for the previous two or three weeks, but the weather had become very poor and as, a result of that, the previous arrangement for pouring the concrete – which involved bringing wagons in and tipping it out and spreading – meant that vehicles were sinking into the mud and struggling to get through.

There were discussions between the farm owner, and the contractors, about how they could finish the job within a reasonable time frame without having to bring wagons in. The solution was to bring in a concrete pump; a large vehicle with a boom arm and a flexible nozzle that can pour concrete as desired by somebody holding and directing the nozzle.

This was apparently all agreed rather quickly on a Sunday night and by Monday they had contracted a concrete pump and got it in on site. The concrete pump vehicle was driven by a very experienced driver who had been doing this for a number of years.

For the first part of the day, the concrete was poured without incident. Then there was a break and during this period there was discussion about if the concrete pump could be moved to the other side of the overhead powerlines to complete the last bit of the apron construction, so that the boom didn’t have to go over the top of the powerlines. Or whether the vehicle should be left where it was, and the boom raised to a great height to arc over the powerlines.

According to the HSE Inspector, the concrete pump operator and the contractor said entirely different things about who said what at this point. The pump operator said that he argued with contractor about how dangerous it would be to have the boom going over the powerlines. But in order to demonstrate this, he admitted he did actually put the boom over the top of the powerline.

When the boom was put over, one of the workers from the building contractors took hold of the flexible nozzle expecting work to start pouring again, and at that point the man was electrocuted.

CPR was administered on site; and he was taken to hospital where he was in a coma for six days. He apparently suffered significant internal burns and even three years later, he still hadn’t returned to work.

DECISION TO PROSECUTE

HSE Inspectors investigated the incident and ultimately took the relatively rare decision to prosecute three parties: the farm owner; the contractor; and concrete pump driver/operator.

In the case of the farm owner, as happens in a lot of less common construction situations, he had not actually appointed somebody as a Principal Contractor. Therefore, as the farm owner and the client, he had taken on the role of principal contractor under Construction Design and Management Regulations [CDM]. From his point of view, he imagined and had assumed that the building contractor was the Principal Contractor but, in law, because he hadn’t appointed anybody, it actually defaulted back to him

The reason that is relevant is because, whether it relates to CDM or whether it relates to the Health and Safety at Work Act 1974 section 3 responsibilities, The farm owner knew where the overhead powerlines were and, as part of the change in the construction work that then took place, he would have needed to have been involved in any discussion about the safety of potentially impacting the overhead power lines.

This was not a small farm; it extends across many hundreds of acres and the farm owner also runs a separate agricultural business, so he has a lot of knowledge of health and safety. He would have been expected to know a little bit, or to have found out more about CDM and to have appointed somebody properly to consider this risk to vehicles, even before the concrete pump was brought in.

The farm owner had contacted the electricity supplier to ask about the possibility of burying the overhead powerlines underground or diverting them about 18 months proper to work starting. For various reasons, that couldn’t be done. On one hand, that showed he had thought about this risk and had tried to address it. But equally, it also showed that we were aware of the risk.

Following on from that, when the building contractors were appointed, the documentation highlighted that there were overhead powerlines. The documents showed where they were and it said they would need to take precautions not to impact them. So the Building contractors could not argue that they didn’t know about these powerlines.

A significant proportion of the building contractors work is in agricultural building, and they had quite detailed procedures written down for identifying and dealing with the risk of overhead powerlines. But even before this incident happened, they hadn’t erected any goalposts to ensure other vehicles drove at a sufficiently low depth beneath the powerlines.

They also allegedly used long-handled metal tools to spread out the concrete underneath, which could have posed some electrical arcing potential. And there isn’t any doubt that they allowed this concrete pump machine that they brought in under a separate contractor to work very closely to an overhead powerline, and they didn’t sufficiently control how it was going to be operated.

Finally, in the case of the concrete pump operator, while there is no legally required training courses for operating a concrete pump, there is a very specific training course that a concrete pump operator should go on. Mr Walker had taken that course, so part of that training and his past experience showed that he knew the number one priority was to look out for overhead powerlines.

Even with the other corporate failings, had he been a bit more sensible this incident wouldn’t have happened. It was only the operator who put his pump’s boom arm over the top of the powerline and in so doing, he went completely against the training and experience he’d had. So, on this occasion, his contribution to almost killing someone was at such a high level that it was felt that he needed to be on court too

SENTENCING

At Oxford Magistrates’ Court, the following sentences were imposed

·         The Building Contractor pleaded guilty to breaching regulation 14 of the Electricity at Work Regulations 1989. The company was fined £50,000 and ordered to pay costs of £5425 plus a victim surcharge of £181.

·         The Farm Owner pleaded guilty to breaching regulation 13 (1) of Construction Design and Management Regulations 2015 and was fined £3,000 and ordered to pay costs of £525 plus a victim surcharge of £181.

·         The Concrete Pump Operator pleaded guilty to breaching section 7 of the Health and Safety at Work Act. Mr Walker was handed a 12-month community order with a requirement to carry out 60 hours of unpaid work and ordered to pay costs of £2,000 plus a victim surcharge of £90.

LESSONS

The HSE Inspector was quoted as saying, “I think there are two lessons we can draw from this. The first is, when you are having any form of building work done and you are bringing in contractors, it is important in the vast majority of cases to have an understanding and do some reasonable due diligence.

“No matter how specialist the contractors are, consider how are they going to work and how are they going to control risk? Any risk that is within the gambit of the owner needs to be thought about before you even get the contractors in. Don’t believe that you can just delegate risk.

“The second thing is much more specific. Where you have overhead powerlines, there is some really straightforward guidance available from both the power companies and HSE. Always look at how you can pr

event any situation where something being put in the air might contact an overhead powerline.”