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Trench collapse victim 'miscalculated' risk, court hears

A junior geotechnical engineer’s death in a collapsed trial pit was down to his own “miscalculation” rather than his company’s working practices, which were in fact “commonplace”, a court heard yesterday.

Winchester Crown Court was told that 27-year-old Alexander Wright chose to enter the pit that killed him when alone on site, contrary to his company’s safety rules.

“Had this young man done as his company always did, there is a very good chance he would be alive,” Richard Lissack QC, defending, told the court.

“Had this young man done as his company always did, there is a very good chance he would be alive.”

Richard Lissack QC

Wright died in September 2008, and his company, Cotswold Geotechnical Holdings (CGH), is now the first company to be tried under the Corporate Manslaughter Act 2007, under Justice Field.

Lissack argued that Wright’s death was the “fatal product of an error of judgment in choosing to enter that deep pit when alone on site”.

“That talented young man miscalculated his activity that afternoon,” he said. “For that miscalculation he paid the most terrible price.”

Tipping point

He said the fact that Wright had done this without an excavator driver present was “the tipping point”, and referred to evidence given last week by Earth Science Partnership director John Campbell, who said it would have been impossible to save a man from a pit collapse without immediate action by an excavator to free his chest from the weight of the soil.

Lissack also said CGH’s practice of entering unsupported trial pits deeper than 1.2m was not down to Eaton’s way of working being “slapdash” or stuck in the past. “It was because this was how things were done [in the industry]”, Lissack said.

“That talented young man miscalculated his activity that afternoon [and] paid the most terrible price.”

Richard Lissack QC

The trial has centred on ICE guidance and British Standards that say unsupported trial pits deeper than 1.2m should never be entered. Wright died in an unsupported trial pit 3.8m deep in firm clay.

Eaton was not wrong to leave Wright alone on site, the court heard, because – witnesses had agreed – there was no need for him to enter any of the pits, because it had been agreed earlier that day that the pits would be backfilled and boreholes used instead.

“You can be confident that Wright would know of the plan to recommend boreholes,” Lissack said.

Not clear-cut

He also said there was no reason why Eaton should have specifically told Wright not to enter the pits, as Wright would have known it was dangerous and unnecessary.

In addition, the court heard, there was “no need for Mr Eaton to have been there at all,” because the quotation CGH had given to carry out the work was based on one excavator driver and one engineer, not two.

“You are not here to promote some national [health and safety] standards. You are not some agent to the state.”

Richard Lissack QC

Lissack told the court that CGH’s way of working was “rather more commonplace”, and the case was “not nearly as clear-cut”, “as the prosecution would have you believe”.

He argued that the 1.2m rule in industry guidance “gives best advice to a broad sector” rather than dictating a hard rule.

A more risk-based approach to health and safety has become common in recent years, Lissack said. “Some years before 2008, the absolutism had gone.”

He told the jury not to base its decision simply on industry guidance. “You are not here to promote some national standards. You are not some agent to the state,” he said.

“Genuinely deficient”

Lissack accepted that CGH’s way of operating was in some ways “genuinely deficient”. However, he said CGH’s failings were not causative of Wright’s death nor deserving of the label “gross”, and therefore the company cannot be convicted under the Corporate Manslaughter Act 2007.

“Entry into unsupported trial pits deeper than 1.2m is not uncommon, even today.”

Richard Lissack QC

The Act says a breach is “gross” only if the company’s conduct falls “far below what can reasonably be expected” in the circumstances. To be convicted, CGH’s conduct must have been “so bad as to demonstrate a reckless disregard to the life of Wright”, said Lissack.

He said “taking commercial shortcuts” does not amount to such poor conduct.

He accused the prosecution of losing sight of “what this case was really about”, because its case had brought into question whether the industry as a whole was ignoring trial pitting guidelines.

The verdict should not be based on a judgment of “some unseen part of the construction industry” for which CGH is not responsible, Lissack told the jury.

Relevant evidence

He also accused the prosecution of calling witnesses who were health and safety specialists from large companies – including Mott MacDonald health and safety manager Laura Hague – rather than calling geologists from small companies similar to CGH who would have been able to give more relevant evidence.

The defence’s witnesses, whose evidence showed that “entry into unsupported trial pits deeper than 1.2m is not uncommon, even today”, were more relevant, Lissack told the court.

He said CGH’s employees had entered thousands of unsupported trial pits over the years, on projects for public bodies – including Gloucester County Council, Wiltshire County Council, Cheltenham Borough Council, Bath and North East Somerset Council and Gloucestershire Constabulary – and “household name” private developers, yet it had only ever had one formal complaint. The company was reported to the Health and Safety Executive in 2005 by a former employee concerned about trial pit safety.

However, the defence admitted that CGH failed to provide and record formal training or a method statement for trial pitting; failed to carry out and record generic risk assessments; failed to formally identify occasions when entering a trial pit may not be necessary; and failed to deal thoroughly with, or ensure all employees were aware of, published health and safety guidance on trial pitting.

CGH denies corporate manslaughter, and the trial continues.

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