26 April, 2023
Shea Ryan died after falling down a manhole on a construction site, which was part of a surface water management project being carried out adjacent to a residential area on behalf of the city council.
The 10-year-old was out playing with his friends on the evening of 16 July 2020 when he bypassed insecure fencing around the site and fell 6 m down an open manhole cover situated close to a children's play area.
An investigation by the police and the Health and Safety Executive (HSE) found insufficient measures had been taken to prevent children gaining access to the construction site.
The company in charge of the site, RJ McLeod (Contractors), had failed to carry out a suitable and sufficient assessment of the risk of unauthorised persons gaining access to the site, which resulted in a failure to adequately inspect and maintain suitable perimeter fencing, and install other suitable security measures.
'Shea should never have been able to get on to and play on that site,' said HSE principal inspector Graeme McMinn. 'The security measures should have taken account of the adjacent children's play park and the likelihood of children trying to gain access.'
He said the construction industry must do everything it can to keep children out of construction sites and 'away from danger to prevent a tragedy such as this happening again'.
RJ McLeod (Contractors) admitted breaching health and safety legislation by failing to ensure the safety of those not in their employment. As well as the £800,000 fine, the firm was ordered to pay a £60,000 victim surcharge earlier this month. They may also face an insurance claim for damages from Shea's family.
Several measures to increase safety have since been put in place, the company's legal representatives told the court. A spokesperson for RJ McLeod said the firm 'fully accepts the outcome and ruling of the court'. They added: 'We extend our condolences to the family of Shea Ryan. We have carried out a comprehensive review of the event and have taken action to protect against the risk of a re-occurrence. We fully co-operated and engaged with the investigating authorities... Safety is always our top priority and site safety updates are implemented across the business on an ongoing basis.'
'It is important that any learning, to help prevent deaths in a similar situation, is put in the public domain and there will be a fatal accident inquiry into the full circumstances of Shea's death in due course.'
Not only was this company ordered to pay a significant large fine but they could also face a claim for compensation by Shea's family and endure reputational harm Sentencing for health and safety offences for organisations are primarily based on the organisation's turnover as a starting point for the level of fine to be imposed dependent on the culpability and level of harm caused by the offence. The company are likely to have fallen into the Large Organisation category for sentencing purposes. The offence is also likely to be declarable on future tender bids as a bidder's safety record are a usual tender requirement from clients.
The lesson for the construction industry is stark from the HSE, that the industry need to ensure planning management and monitoring of sites especially when they concern the risk of unauthorised access with children being at risk. The recent prosecution follows a similar incident when a civil engineering firm were subject to a fine of £600k for safety breaches in September 2022 when a 7 year old was trapped in a drainage pipe and suffocated on a new build housing development. The site was next to an existing housing estate and the HSE made findings of insufficient fencing in place to prevent unauthorised persons from accessing the site. In that case the HSE inspector stated that "The dangers to children gaining access to construction sites and treating them like a playground is an ongoing problem which must be addressed at all types of sites no matter what their complexity or size."
As occupier of the site at the time that Shea gained access they would owe a duty of care to lawful visitors, but also to trespassers such as Shea. The incident happened in Scotland where the law largely mirrors the England and Wales equivalent of the Occupiers Liability Act 1984. That Act imposes a duty to take such care as is reasonable to see that trespassers do not injure themselves, where the occupier is aware of the danger, or has reasonable grounds to know of it, and knows that people may be in the vicinity of the danger, where it is reasonable to expect an occupier to guard against injury. By not ensuring that the site near a playground was properly secured, and not carrying out a risk assessment on the security of the site, the company run the risk of being found in breach of their duty because had they done such an assessment they are likely to have been aware of the risks of children gaining access to the site. As such they could be said to have reasonable grounds for knowing that people may be in the vicinity of any danger. It may be more likely that there would be a breach of duty if the site is said to have enticed children on to it given the proximity to a children's play area. It might then be said to be reasonable to expect the occupier to guard against injury to children.
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