rey area

When the UK’s Health & Safety Executive announced that it had decided not to prosecute anyone (News, Sept 04) following its investigations into a crawler accident in Southend-on-Sea, many eyebrows were raised across the industry.

It seemed like an open and shut case. The crane had no proper EC Declaration of Conformity with the European Machinery Directive (CE mark) and therefore, by law, was not allowed to be used on site.

This was the perfect accident for the cause of those importing equipment. Both official distributors and those independent importers who spend a lot of time and money in seeking to comply with the law have long been frustrated by the entry into Europe of non-compliant used equipment. This problem was particularly acute in the late 1990s, when the Asia market collapsed and young used Japanese equipment was readily available, but remains of concern today. They petitioned the HSE, among other groups.

The HSE did indeed investigate and four parties might conceivably have expected to face charges. The importer, GH Johnson, had clearly brought in and sold a non-compliant machine. The owner, Wharton Plant Hire, was operating a non-compliant machine. A Yorkshire-based inspection company (that the HSE did not name) had checked that the machine complied with the UK lifting regulations, called LOLER, but had failed to spot that it was not CE compliant. The main contractor, Morgan Est, was in breach of its responsibilities allowing the machine onto its site. A fifth party, the operator himself, could also be considered partly culpable. All operators are responsible for ensuring that they are familiar with any machine that they operate.

Leading the HSE investigation was health and safety inspector Gordon Crick, who concluded: “HSE inspectors took careful account of all the circumstances relating to the incident, and decided, in line with the Code for Crown Prosecutors and the Health & Safety Commission's enforcement policy statement, that prosecution action was not in the public interest.”

Those who had been waiting for an accident to generate action from the HSE were disappointed. This was not the outcome that they had been waiting for. The message seemed to be that CE marking and the Machinery Directive was not really an important safety matter.

Speaking to Cranes Today, Crick said: “There has been significant lobbying from sections of the industry so we are aware of these views.”

Leading that lobbying in the UK was the Construction Equipment Association (CEA), which represents manufacturers and official distributors. Tim Faithfull, the CEA’s director in charge of technical and legislative matters, says: “I am absolutely disgusted at their attitude,” Faithfull says. “This accident was totally avoidable if they would just enforce their own regulations.”

In the end, the decision not to prosecute in this case came down, it seems, to a kind of cost-benefit analysis, though carried out based more on gut feeling and politics rather than any science. Crick of the HSE explains: “It would have been a complicated case. When our legal team looked at it, they thought that there was a likelihood of putting an awful lot of time, money and effort into it and getting maybe just a small fine or conditional discharge. Also, it was a one-off occurrence – this was not a frequent importer – and the parties involved had acted to comply since the event. We don’t prosecute in every case.”

The decision to prosecute was the responsibility of Phil Papard, the HSE’s head of product safety. Papard told Cranes Today that the HSE recognised the potential to use this case to make an example of importers and users of non-compliant machines, but there was a significant chance that, even with a guilty verdict, the judge might impose a fine that was not sufficiently large as to send out the right message to the industry. “There were special and complicated circumstances in this case,” he says.

Other facts seemed to deter the HSE from going to the trouble trying to make a case stick. Wharton Plant Hire’s owner, Ron Wharton, cooperated fully with the HSE, which consequently found it hard to cast him as the villain of the piece. Neither Wharton nor the importer GH Johnson were major players and the HSE felt that neither was likely to make the same mistake again. Added to this was the fact that no one was injured or killed, so there was aggrieved party of widow and orphans to consider.

The main contractor had acted in good faith. It had checked the crane’s documentation and ensured that it complied with LOLER. Several other main contractors had checked the crane’s documentation between June and September 2003 and none of them had enquired whether it carried a valid CE marking. Crick says that principal contractors should be given responsibility for checking the legality and safety of equipment. Although anyone can look for a CE mark, few would be qualified to verify whether a crane was compliant. The requirement for hoist lever indents to be removed, for example, is fairly specialised knowledge.

As for the inspection company, a so-called ‘competent person’ should be expected to have enough specialised knowledge to recognise a machine that does not comply with the Machinery Directive. The UK’s LOLER regulations do not explicitly state that checking for CE compliance is part of the thorough examination or test. But it could be argued that such a requirement is implicit and this appears to be a matter of legal debate. The two sets of regulations fail to join up, it seems.

The bottom line was that the cost, the complexity, the difficulty in making a case, the ‘spread of culpability’ as Crick puts it, the likely outcome and the likelihood of a repeat offence, all added up to this case failing the HSE’s ‘public interest’ test. Instead, it was deemed sufficient to put out a press notice setting out the lessons learned and issuing a final warning to the industry in general: “The industry must take this as a timely reminder that HSE will use the full range of its powers if there are further incidents of this type in future.”

There are many in the industry who hope that the HSE is not bluffing.