Are safety probes letting down the industry?

The official system to investigate construction accidents is failing both victims and the industry

Kayla Boor had just left her four-year-old son at school and was walking along the street when a pallet of bricks fell onto her from a building site crane. Two days later, the recently engaged woman was dead.

“I’m no further on than I was the day after it happened”

Alaina Selby, whose daughter Kayla died more than five years ago

More than five years after the tragedy, which happened in Bow, east London, Kayla’s family is still waiting for some form of closure about what happened on that fateful day. “I’m no further on than I was the day after it happened,” Kayla’s mother Alaina Selby tells Construction News. “I don’t even know specifically what my daughter died of.”

Her parents can’t even obtain a full death certificate because an inquest is yet to take place due to a police investigation that has yet to conclude. They are appalled at the lack of information about what’s happening in the case.

Kayla’s parents are not the only ones made to wait for years after such tragedies. In a recent interview with The Guardian, the outgoing chair of the National Police Chiefs’ Council (NPCC) Martin Hewitt said it is “upsetting and wrong” that those affected by the 2017 Grenfell Tower fire have been waiting for six years to find out if anyone will face criminal charges.

An NPCC spokesperson clarified to CN that Hewitt was referring to the fact that a public inquiry into the blaze had delayed the criminal investigation into the incident. The Grenfell Tower tragedy is the largest and highest-profile ongoing health and safety investigation relating to the construction industry, and lawyers believe that decisions on possible prosecutions will not be made until the inquiry report is published. But the length of time victims and the bereaved have waited for investigations to conclude is not unique.

It takes the Health and Safety Executive (HSE) more than a year to investigate around one-in-five fatal incidents and there are several striking examples of them taking far longer. CN recently reported on the seven-year wait for answers around the deaths of four men during the demolition of Didcot Power Station. Cases such as these leave families in limbo and the industry waiting to find out what safety lessons should be learnt and applied.

Let down

Kayla Boor’s parents, who are now raising her son Kieran, feel badly let down. They believe there has been a lack of action on the part of the police and its investigation partners the HSE since their daughter’s death in March 2018. Her father Matthew Boor says: “Kieran is nine now. Questions are going to start coming from him soon, and we’ve got no answers yet.

“When it first happened, they very much had the attitude of ‘leave it to us – we’ll sort it out’. Now it feels like they’re just going through the motions with it. There’s no information for you – you’re not given any information about alternatives, how to speed things up or how to complain.”

Kayla was struck by the bricks the day before her 29th birthday. A bricklayer by trade, Matthew Boor is acutely aware of health and safety procedures and rules and says his previous perception of the HSE as a powerful organisation has radically changed over the years, through both his personal experience and on-site observations. “If you’ve got a problem on site and phone them up, they don’t come out. Everyone knows that – it’s like calling the police for a burglary, they turn up three days later when it’s all done,” he says.

A Metropolitan Police spokesperson says its investigation remains ongoing. Asked if the case is taking so long due to resourcing issues, he says no, but the case has “complex details”.

Weeks not years

Compton Close, Bow, is just a five-minute walk from where Kayla Boor was struck. There, in a separate incident in July 2020, a tower crane being used for new-build flats collapsed onto two nearby houses, killing 85-year-old June Harvey. Two construction workers were injured. More than 100 people had to be moved out of their homes after the incident, some of them spending months in temporary accommodation, including during the subsequent Covid lockdowns. Those residents closest to where the crane collapsed have been unable to return.

In the aftermath, the Unite union issued a statement calling for an “urgent, full and complete” investigation and for preliminary findings to be released in “weeks, rather than months or years”, to prevent anything similar happening again. Nearly three years on, a police investigation remains ongoing and no official cause has been disseminated to the industry.

A spokesperson for Swan Housing, which owns Nu Living, the company building the flats, says it remains “fully committed to supporting the authorities’ investigation into this tragic incident”.

Complex cases

Construction sites can often be complex places to investigate given that there are usually numerous different companies present. Several commentators point out that when incidents take place, it is not always straightforward to establish who or what is responsible. Investigators working on such cases will look at whether there is sufficient evidence to pass to the Crown Prosecution Service (CPS), the body that brings criminal cases to court.

In cases where it plays the leading role, the HSE has a target of resolving 80 per cent
of fatal investigations within 12 months. It slightly exceeded the target in its latest reported year (2021/22).

“In fairness to the HSE, it has had some fairly longstanding issues with funding, and Covid [disruption caused by lockdowns] obviously won’t have assisted,” says Keith Cundall, a serious injury lawyer at Fieldfisher who has acted on behalf of many clients in civil safety cases, including the families of three of the four men who died at Didcot.

The role of public sector spending cuts since 2010 cropped up when CN looked at Didcot. However, when asked questions about its investigations and funding, a spokesperson for the HSE would only say: “We often carry out investigations alongside other bodies such as the police. Many of the cases we work on are complex and require detailed investigation.”

Cundall acknowledges that Didcot involves a complex and detailed investigation. “The question is whether it could reasonably be expected to have taken seven years and counting? I’m not sure about that,” he adds.

And discussions about funding for public institutions are hard to stomach for those grieving after losing loved ones. Kayla Boor’s mother Alaina Selby says: “Whether there’s cuts or not you expect a certain amount of service. We pay our tax, but what service are we getting?”

“The prosecution must prove that the breach of duty was causative of death”

Rosemary Ainslie, Crown Prosecution Service

Where charges of manslaughter are possible, the HSE hands the management of cases to the police. The HSE often still plays a major part in such investigations, but neither it nor the police publish data on the length of time those investigations take.

“Some prosecutions in corporate manslaughter cases can be enormously complex while others can be much more straightforward,” says Rosemary Ainslie, head of the special crime division at the CPS. Corporate manslaughter has a high threshold for liability, she adds, meaning prosecutors need to demonstrate that failings of senior management form “a substantial element” of a gross breach of a duty of care held by the company concerned.

“Liability is assessed by looking at any potential failings of the organisation in relation to how its activities were managed or organised by its senior management that resulted in a fatality.

“The prosecution must prove that the breach of duty was causative of death – in other words, although they did not directly cause the death, their actions or inactions led to the death. The test is whether the breach made a more than minimal contribution to the death.”

Despite the police’s role in many cases, there is no national police body or spokesperson with responsibility for safety investigations.

Defence barristers

Fieldfisher’s Cundall says families often have a sense that there is more going on than they are being told by investigators. Sometimes it will be proper that the fine detail that could help bring about prosecutions is not released too widely. But Cundall adds: “There needs to be meaningful involvement of the families rather than simply saying ‘this is complicated, it will take time to look into’. It should never be forgotten that at the end of this you’ve got family members who are grieving.”

“These very good regulatory defence barristers know exactly what to say to the HSE, which is…understaffed and underpaid”

Keith Barrett, Fieldfisher

Others blame the legal process. “There are criminal barristers in the background, negotiating with the HSE over charges,” says Fieldfisher personal injury lawyer Keith Barrett. “These very good regulatory defence barristers know exactly what to say to the HSE, which is under-resourced, understaffed and underpaid.”

Barrett has represented people including Kayla Boor’s parents and many of those displaced by the Bow crane collapse. Speaking generally about health and safety investigations, he outlines numerous instances where his clients, in construction and elsewhere, hear nothing about criminal cases for months at a time.

He blames the adversarial court system in the UK, as well as companies involved. “Some defendants can keep their cards close to their chest, [and] they – understandably – can be cautious about disclosing information [in civil proceedings]. The burden of proof is on the prosecution, of course.”

However, being investigated for years is not a positive process for a contractor that feels it has not done anything wrong. For instance, CN spoke to a company director aggrieved that their business was connected with an incident for years, without any indication of when the investigation would end.

Another way

In July 2019, two rail track maintenance workers died after being struck by a train at Margam in South Wales. In just five months, an interim report had been released by the Rail Accident Investigation Branch detailing investigators’ initial findings. A final report including safety recommendations was released in November 2020.

Such swift reporting is standard in the rail sector. The processes for learning from incidents are similar at sea, with the Marine Accident Investigation Branch, and in the aviation sector, with the Air Accidents Investigation Branch. These organisations swiftly investigate and produce guidance for industry, separate from any criminal investigation.

The HSE says that it issues safety alerts when urgent matters arise and it does produce lessons from incidents, but Unite’s national officer for construction Jerry Swain says: “They need to move quicker. I believe that what holds them up is that before they say anything they’re looking to decide who’s to blame.”

Others agree that the HSE should act faster. “If you are relying on nasty things happening and then being properly investigated and the lessons shared so you can prevent them happening again, you can’t wait years for that process to take place,” says Lawrence Waterman, former head of health and safety for the London Olympic Delivery Authority and now a consultant with consultancy firm   Park Health & Safety. “You want the headline findings, even if the results are caveated with further investigation being required,” he remarks.

“The HSE appears to be driven by a desire not to prejudice prosecutions [by saying too much too early] and I think it’s looking through the wrong end of the telescope. If they prevented another industrial tragedy, that would be more of a contribution to safety than a prosecution for an incident from several years ago.”

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