The devastating consequences of variations

This article was published in Construction News on 27 April 2015

For further information, please contact Ben Drew, Partner, Fladgate LLP (bdrew@fladgate.com)

A recent case has shown that small sites combined with last-minute changes can be disastrous – so pay attention to variations.

A recent case before the Southwark Crown Court highlighted that small sites with last-minute changes are a particularly dangerous combination. Variations require as much attention as the original design. In this case, however, the health and safety implications were disastrously overlooked when there was a late change to the method of work.

Background to the case

The work involved the excavation of a basement and the underpinning of supporting walls. The excavation technique was basic to say the least – by hand and the use of a rope and bucket to remove the sand ballast from the trench. A Mr Milosavlevici was employed by Siday Construction Limited to work on digging the trench. Unfortunately the side wall collapsed and he was crushed to death.

A Mr Golding had been engaged as a health and safety consultant to provide advice to the contractor, and was responsible for drafting a method statement.

The Health and Safety Executive and the police commenced a joint investigation and brought proceedings against Conrad Sidebottom, the commercial director of Siday, for gross negligence manslaughter and, in relation to Mr Golding, offences under the Health & Safety at Work Act (HSWA).

What went wrong

During criminal proceedings it became apparent that several things had gone wrong:

• The method statement was found to be inadequate, containing information which had merely been copied and pasted from a document relating to a previous basement project undertaken by the contractor.
• It had been prepared without reference to any engineering drawings for propping and shoring temporary works.
• This extra information was to be added by the contractor at a later date, but never was.
• The method of work was in any event changed when work had already started on site so that the excavation was carried out by hand rather than machine.
• Mr Golding visited the site monthly, his last visit being nine days before the accident, and said that he was unaware of the excavation even though there were site photographs which showed that it was already being dug at that stage. He had authority to stop the works but did not do so.
• The site manager, Mr Sidebottom, failed to update the method statement or to notice the lack of support for the excavation, even though he visited the site two or three times a week and the risk of collapse of the excavation had been mentioned expressly on the method statement.

Revealing custodial sentence

Unsurprisingly, both individuals were convicted by a jury at the Crown Court. Mr Sidebottom was sentenced to three years and three months’ in prison. However, it is the nine months’ sentence for a breach of Section 7 of the HSWA that Mr Golding received which is the most eye-catching, as this was one of the first times a court has imposed an immediate custodial sentence on an external safety consultant.

There are various lessons that can be learned from this tragic case:

• A late variation such as changing the method of working needs careful thought.
• Acting as a health and safety consultant to a contractor requires a high level of attention.
• Small sites can be just as dangerous as large ones.

Had all the excavations on site been properly shored and propped, the fatal collapse simply would not have happened and the devastating consequences for all concerned would have been avoided.