02 December, 2020
Cheshire West and Chester Council received a substantial fine after a young child fell almost three metres to the floor from a gap in railings, sustaining serious head injuries.
Chester Magistrates' Court heard how on 16 November 2018, a family was visiting Chester City centre to watch the Christmas parade. While standing at a viewing point on The Rows at Bridge Street, their 21-month-old daughter fell through a gap in the railings onto the floor below, resulting in a fracture to her skull.
An investigation by the Health and Safety Executive (HSE) found that one of the spindles on the railings had been missing since at least May 2017, leading to a significant gap (22cm) in the physical protection of the railings. It was found that Cheshire West and Chester Council failed to ensure that The Rows were maintained to prevent a risk of a fall from height. No risk assessment or risk control measures were put in place for members of the public and employees accessing or working on The Rows before the incident occurred. The council failed to provide adequate information, instruction and training to ensure employees understood the risks associated with a lack of maintenance of the area.
Cheshire West and Chester Council of Nicholas Street, Chester, pleaded guilty of breaching section 3(1) of the Health and Safety at Work etc. Act 1974. The Local Authority was fined £300,000 and ordered to pay costs of £5,607.40.
HSE Inspector Emily Osborne said after the hearing: "Councils have a duty to adequately assess and control risks to members of the public, and maintain structures for which they are responsible.
"A child suffered serious injury as a result of what was an easily preventable incident if the risk had been identified and correct action taken to prevent a fall."
Employers and organisations have a duty under section 3 Health and Safety at Work etc Act 1974 to conduct their undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment who may be affected and not exposed to risks to their health or safety.
Therefore, the Council owed a duty of care to visitors including members of the public to areas under the responsibility and control of the Council. An aggravating factor probably included the Council's knowledge of the hazard which existed for over 18 months prior to the tragic incident and the failure of the Council through risk control measures and/or risk assessment to control that risk. A low-cost solution would have included carrying out a repair within a short reasonable time frame and ensuring that the gap was cordoned off pending repairs.
Should highway inspectors during the course of their inspections be identifying these types of hazards? If so, how are they being addressed within the various departments if highway's are not responsible for the repairs?
The early guilty plea would have reduced the sentence and the fine by at least a third from the Court's starting point on sentence. Leaving aside the substantial fine and prosecution costs which would not be covered by an organisations insurance policy and would have to be met by the Council themselves, they will inevitably also be facing a substantial personal injury claim from the child which is unlikely to settle any time soon given the age of the child and the effect of head injuries on children not manifesting themselves well until they reach adulthood.