Builder receives custodial sentence for failing to report an incident where a worker was seriously injured

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21 June, 2021

Ridwaan Omar
Partner and Head of Regulatory

A builder has been imprisoned for 24 weeks after he failed to report a serious incident at a construction site he was in charge of.

Westminster Magistrates' Court heard that on 8 January 2019, worker Simon Lewis had been clearing a site on Clarence Avenue, New Malden with an excavator so a new house could be built. The excavator tipped while digging and it trapped Mr Lewis' leg, resulting in an amputation.

An investigation by the Health and Safety Executive (HSE) found that Mr Lewis had no formal training for operating excavators and had requested a 3-ton model was provided for the work. However, only a smaller 1.7-ton excavator was provided, and Mr Lewis was put under pressure to use this. The incident was not reported to the HSE within ten days as required and the defendant, Paul Adams had not investigated the incident. HSE was only able to start an investigation more than eight months later when the victim complained. By this time crucial evidence relating to the cause of the incident was unobtainable and the work was almost completed.

There was no health and safety related documentation and there was no employer's insurance cover for Mr Lewis to claim against. Mr Adams had not obtained any health and safety related training during his 50 years in the construction industry.

Paul Adams, trading as Surrey Conversions, pleaded guilty to a breach of Regulation 3(1) of the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013 (RIDDOR). He received a 24-week custodial sentence and was ordered to pay costs of £2,033.

Speaking after the hearing, HSE inspector Andrew Verrall-Withers said: "This case re-enforces how important it is that incidents are reported so they can be investigated, and improvements made to prevent serious incidents in future.

"The judge noted Mr Adams had not reported the incident even when prompted to by a solicitor, and that despite his construction experience he had failed to take any interest in understanding his legal duties nor invest in health and safety.

"Mr Adams claimed in court that he had stopped working for months due to the impact of the incident. However, the evidence showed he had continued with the work.

"The judge commented on how distressing it must have been for Mr Lewis on top of his life changing injury, to know the incident was not being investigated."

He added: "We went to great efforts to ensure Mr Adams made improvements. However, in court it was confirmed that although he had told the probation officer he had stopped work he was still carrying out construction work at an unidentified site despite failing a health and safety test."

Forbes Comment

This tragic case may result in the injured worker receiving no compensation for his catastrophic injuries. There is no safety net like in motor claims if a tortfeasor has no insurance cover. However, there may be scope to seek to check the suitability of contractors appointed by the "client" in accordance with the CDM regulations and whether checks should have been made by the "client" that the appointed builder had suitable insurance policy cover in place.

The RIDDOR regulations require any "specified injuries" (which includes amputations - regulation 4) to be reported to the enforcing authorities so that they can identify where and how risks arise and whether they need to be investigated.

The imposition of a custodial sentence on the individual reflected the seriousness of the offence and the high culpability and harm category. In this case, the Court, whilst having to consider whether the custody threshold has passed, did not consider it appropriate to impose a suspended sentence or another community order sentence in view of the aggravating factors and the Defendant's failure to take any interest in understanding his legal duties. Individuals prosecuted for health and safety offences, dependent on the level of culpability and the level of harm, can be sentenced up to a maximum of 2 years custody.

For more information contact Ridwaan Omar in our Insurance department via email or phone on 01254 222457. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

Learn more about our Insurance department here

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