Damned if you do

The familiarity of this case sends a chill up the spine. John Cullen, a site foreman, was fined £1500 in August 2003 by the City of London magistrates under Section 7 of the Health and Safety at Work Act 1974, following an incident on a construction site in which a worker suffered two broken legs.

In short, the injured worker was tipped out of an excavator bucket. Then the bucket came off and fell on top of him.

Cullen was a site foreman employed by O'Rourke Civil and Structural Engineering, which had been appointed principal contractor for the construction of a new police station in Sutton, Surrey.

He was instructed to set up the site. This included the erection of wooden hoarding around the perimeter. There were several large advertising billboards around the site's edge, which had to be removed before the hoarding could be put in place.

Although O'Rourke's client had agreed to take down the billboards, this work was delayed. Cullen therefore decided to dismantle the billboards by using a lifting sling attached to the arm of an excavator.

O'Rourke's project manager told Cullen to desist because the client had made arrangements for the billboards to be dismantled. Cullen was also told that the work was not included in the company's method statement. But three days later Cullen again instructed a group of workers to use the excavator to remove a billboard.

That's when the accident happened. One of the workers stood in the excavator's bucket and was raised five metres to the top of the billboard. The HSE investigation concluded that the bucket had fallen from the excavator's arm because the safety pin designed to hold it in place had not been fitted. Further, a warning buzzer intended to alert the excavator driver that the safety pin was not in place was defective.

It is unlikely that worker, reportedly a joiner, will ever work again.

Setting precedents
Obviously the accident wouldn't have happened if Cullen had prevented site workers from standing in the bucket. And suitable equipment such as a crane should have been used to remove the billboard.

The following points were made in mitigation on Cullen's behalf:

• He had pleaded guilty.
  
• He deeply regretted the incident.
  
• The decision to remove the billboard by standing in the bucket had been taken jointly with the men working on the site.

Cullen was fined £1500 under section 7 (a) of the 1974 Act for failing to take reasonable care for the health and safety of himself and others, plus £1300 prosecution costs.

The HSE seems to be wielding Section 7 more frequently to target individuals, possibly recognising that people, not companies, make the sort of decisions that get people killed. Fines are lower because courts take defendants' means into account.

But Section 7 remains a blunt instrument because it has trouble addressing wider questions this case raises, such as what sort of pressure Cullen and thousands like him may be under to disregard method statements, and what kind of culture allows workers to collude in accepting risky practices.