From the courts: what you need to know

Case law: ‘Reliance on a competent driver and a properly maintained vehicle is simply not enough.’

Background circumstances

On 5 December 2007 Mark Wilkin was driving a dumper truck on a construction site in Kent. A temporary roadway was being built into a flooded quarry at Salt Lane, Cliffe, and, as Mr Wilkin drove along this roadway his truck left the road and overturned, trapping Mr Wilkin in the quarry where he drowned.

The investigation

Mr Wilkin was employed by Edward Day (trading as E. J. Construction). An investigation was jointly undertaken by Kent Police and the Health and Safety Executive (HSE). Mr Day was charged with manslaughter. He was also charged with offences under Section 2(1) of the Health and Safety at Work etc Act 1974 (failing to ensure, so far as is reasonably practicable, the health, safety and welfare at work of his employee) and Regulation 37(6) of the Construction (Design and Management) Regulations 2007 (failing to ensure that suitable and sufficient measures were taken to prevent any vehicle from falling into any excavation or pit, or into water, or overrunning the edge of any embankment or earthwork).

The trial

The matter came to trial before Maidstone Crown Court in March this year and lasted about two weeks. At the end of the prosecution case the judge directed the jury to find Mr Day not guilty on the charge of manslaughter, a charge carrying the potential penalty of imprisonment for life.

It was the defence’s case that Mr Wilkin was a very competent worker and experienced dumper truck driver who had left the road for an unknown reason. It was established that Mr Wilkin suffered from chronic epilepsy but had previously only had such attacks at night. The pathologist concluded that an epileptic fit or heart attack was a real possibility prior to the accident.

The prosecution held that the circumstances leading up to the accident were immaterial. What was important was that the construction company had not provided any protection along the edge of the roadway sufficient to prevent the dumper truck (nor indeed the excavator also using the roadway) from slipping into the quarry.

The jury supported this view and Mr Day was convicted of both health and safety offences, receiving a fine of £10,000 for each.

Advice from the HSE

The HSE start an investigation from the assumption that any workplace injury is avoidable. In this particular case, the comments of the inspector involved, Melvyn Stancliffe, are pertinent: “This case demonstrated – as do so many site transport incidents – that reliance on a competent driver and a properly maintained vehicle is simply not enough.”

The HSE Construction Information Sheet No 52 states: “Site dumpers are involved in around a third of construction transport accidents, causing many deaths and serious injuries, particularly to drivers.”  Top of the list of causes is the overturning of dumpers on slopes and rough ground and at the edges of embankments. The HSE guidance emphasises the importance of planned safe systems of work and active supervision to ensure that the drivers are complying with such systems. It is imperative that site managers are aware of the contents of the HSE information sheet, because non-compliance with its recommendations will be cited in any court before which that manager, or the company, subsequently appears. In this particular case the information sheet highlighted the need for the employer to provide a suitable barrier to prevent vehicles running off the roadway.

Conclusion

The possibility of a conviction for manslaughter is very real. The prosecution must show that the employer owes the employee a duty of care, that this duty has been breached and that the extent of the negligence by the employer showed such disregard for the life and safety of others as to amount to a crime against the state and, therefore, conduct deserving of punishment.

The existence of a duty of care is generally accepted, because in reality it is only when the employee departs from the terms of his or her employment that there is a possibility of this duty being avoided. In this case there was no indication that Mr Wilkin was undertaking anything other than the tasks required under the terms of his employment. While the breach of the duty of care is reasonably easy for the prosecution to establish – in this case it was the absence of roadside protection – the level of negligence required for a manslaughter conviction is a significant hurdle for the prosecution to overcome and no doubt this is why Mr Justice Akenhead issued the direction he did.

With the manslaughter charge dismissed, it could be argued that Mr Day received a lenient sentence. Earlier in the same month, in a similar case in Northern Ireland the employer was fined £45,000 for breaches of health and safety legislation. In September 2008 Truro Crown Court fined an employer £75,000 with £30,000 costs following the crushing of a quarryman. It is clear that the HSE, supported by the courts, intend to significantly reduce the number of incidents involving dumpers.

Our thanks to Weightmans LLP for its help in writing this article.