Liverpool crane collapse may spur HSE into action

The Liverpool crane collapse may force the HSE into an increased number of prosecutions to demonstrate it's taking action, says Kevin Elliott

The crane collapse in Liverpool earlier this month, which has prompted a Health and Safety Executive investigation, is the latest in a series of high profile incidents involving cranes. On this occasion the incident was not fatal, however the crane driver is reported to have sustained serious injuries as a result of being thrown from his cab. 

There have been eight fatalities this decade as a result of accidents involving cranes. These deaths have been investigated by the HSE whose own enforcement policy states that where there has been a work-related death and breaches are identified during their investigation, the presumption should be that there will be a prosecution. However, enforcement action for these incidents has been varied:

• In May 2000, three site workers were killed at Canary Wharf during a climbing operation involving a crane. The HSE is reported to have said it will probably never know the cause of the crane accident and there were no prosecutions.

• In January 2007, a Polish site worker was killed and a crane driver injured when a luffing jib tower crane collapsed in Liverpool. In October 2008, the HSE announced that following an investigation, there was insufficient evidence to bring proceedings against any of the parties involved, including the crane hire company, the contractor, the crane manufacturer and the driver.

• In June this year, Eurolift Tower Cranes was fined £50,000 over the death of two workers in the 2005 Worthing crane collapse. Whilst sentencing the company, the Judge remarked he would have imposed a much higher fine were it not for the financial state of the company.

Surprise was expressed in some quarters over the HSE’s failure to prosecute for the Canary Wharf and Liverpool 2007 incidents, both of which involved fatalities. However, every case must be judged on its facts and if no breach is established then there should not be a prosecution, even when there has been a death. The level of awareness of safety issues across the sector is arguably higher than was previously the case. 

Over the last three to four years, efforts have been made by different groups to raise standards in the sector. The Tower Crane Interest Group has produced HSE approved guidance documents and the HSE periodically issues safety alerts on safe use of tower cranes. Following the 2007 Liverpool Crane Collapse, the HSE wrote to all tower crane hirers and suppliers in the UK asking them to consider if they needed to take action in light of their findings. 

This higher level of awareness will make it more difficult for relevant duty holders to be able to successfully argue that they had done everything reasonably practicable to ensure the health and safety of employees and people affected by their undertaking. There will also be potentially greater pressure on the HSE to take action for such incidents involving cranes, which will mean that prosecutions for future incidents are far more likely.

Crucially, duty holders should have regard to the Corporate Manslaughter and Corporate Homicide Act 2007 which has made it easier for organisations to be convicted of the offence of corporate manslaughter. An organisation will now be guilty of the offence of corporate manslaughter if the way its senior management organises or manages its activities causes a persons death and amounts to a gross breach of a relevant duty of care owed to the deceased. 

When considering whether there has been a gross breach of a relevant duty of care, the jury can consider whether guidance has been followed. Accordingly, it is imperative duty holders follow the guidance published over recent times.

Notwithstanding the HSE’s inability to prosecute in some recent high profile incidents involving cranes, it is probable that the learning from those incidents will have served to raise the bar in terms of what is expected of duty holders operating in this sector. As a result, it seems equally probable that we can see an increased number of prosecutions in this sector when coupled with the pressure on the HSE to be seen to be taking effective action.

Kevin Elliott is a partner at Eversheds, specialising in health and safety and work related fatalities.