Mock court cases for construction: Safety on trial

Spiky-haired Mr Wendy stands in the dock as a sassy prosecutor grills him. His employee, whose leg was crushed by a bucket falling from an excavator, sits in the public gallery. The witnesses, the lawyers and the magistrates all stare at him. The only sound apart from the shuffling of papers is the raised voice of the prosecutor. “It seems like it’s everybody else’s fault but yours,” she barks before asking Mr Wendy why he didn’t tell his site manager about a similar accident on his other site. “That was my safety manager’s job,” he replies. “Ah, so it was his fault too?” she continues, relentlessly. “Can we believe anything you say considering your recent conviction for fraud?” There are gasps and the chair of the bench tells the clerk to disregard the comment. The court is in uproar.  

Gripping stuff. Except the court isn’t real. Mr Wendy is not real. Neither is his company, Wendy Houses (and there is a clue in the name). This is, in fact, part of a national programme of mock trials put on by the Health and Safety Executive, and the defendant is, in real life, one of their inspectors. The “court” is a ceremonial venue in the back of Northampton’s tourist office.  The legal team is made up of volunteers from law firm Shoosmiths and the witnesses are from Kier - one of whom has amateur dramatics experience and is particularly entertaining.

The HSE believes that it can use mock trials such as this to educate regional firms about health and safety (there have been three so far). On the day Building attends, 30 people are present from companies such as Simons, Mears, Clugston and Larkfleet, each paying £25 to watch from the public gallery. At the end of proceedings they will vote: guilty or not guilty.   

The scenario presented is this: Mr Wendy owns a firm called Wendy Houses. On one of his sites a banksman was standing under the bucket of a digger, which came loose and crushed his leg. The HSE investigator discovered that the driver had not had an induction on the site and was unaware that the firm was using an old kind of digger that required a safety pin to secure the bucket.

Mr Wendy claims he is not guilty, blaming the workers for failing to adhere to their training. After five witnesses give their testimony, the audience’s decision comes down to whether Wendy Houses failed to do all that was “reasonably practicable” to ensure safety on site. As as for Mr Wendy’s culpability, this is a separate judgment. The jury has to decide whether the accident was due to his “consent or connivance or was attributable to his neglect”.

Even though we all sat through the same information, many safety professionals still held different views on the defendant’s guilt

Kevin Smith, Simons

Judging by the HSE’s past form, Wendy Houses is in trouble. If the safety organisation takes a case to court, it is usually confident of success. Last year 210 construction firms or bosses were prosecuted by the HSE, 201 of which were convicted (that’s a 96% success rate). But what does today’s audience think? On the whole they are not well disposed towards the HSE, and come out with comments like: “Why don’t they blame the operators, whom we train and pay?” or “This is the problem with health and safety culture …”

Despite the defensiveness, most jurors put their hands up to vote Wendy Houses guilty of failing to do all that was reasonably practicable to prevent the accident. The lack of a site induction for the operator is the clincher. But Mr Wendy is off the hook. The construction professionals decide he was not guilty - he was let down by the incompetence of his employees. The magistrate agrees. He says that in real life he would have fined Wendy Houses £12,000 plus costs.

Everybody shuffles out of the courtroom for lunch. As we eat, I ask some of the attendees whether the exercise was worth it. Keith Smith, a health and safety advisor at Simons, says: “It was interesting how, even though we all sat through the same information, many of the safety professionals still held different views on whether the defendant was guilty or not. The whole thing provided a great insight into how the HSE sees things and how that affects contractors.”

Another of the attendees (who, I should point out, wasn’t from one of the firms named) says: “The company I work for, in my opinion, doesn’t take health and safety seriously at all. So it’s important to have things like this. Just having people spending their time thinking about it helps.” 

And raising awareness to reduce accidents on site is as urgent as ever. The number of major industry-related injuries has been running at 3,000-4,000 for the past decade. Forty-one construction workers died during the 12 months to April of this year. And July’s list of prosecutions and fines shows the grim conveyer-belt of calamity is still rolling: crushed skull (£13,000 fine), death (£195,000), amputated leg (£10,000), unguarded lift shafts (£10,000), collapsed scaffolding (£4,000) and head injury (£3,500).

But will the message get through to all the workers on whom health and safety depends? And can this voluntary exercise really improve the safety record of those companies most likely to offend? I ask HSE inspector Martin Waring, aka Mr Wendy. He is confident that days like these make an “enormous difference” by raising awareness of health and safety. However, he accepts that the firms in attendance are already the most compliant and there are no plans to make attending such days compulsory.

He adds: “However, if you come along to one of these events, we’re unlikely to visit your site quite so soon.” 

The next mock trial will be in Pontefract in September, but whether the HSE will have the resources to organise any more is unclear. In the meantime, nothing focuses the mind on the aftermath of an accident better than the inside of a courtroom …