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Trial pit death firm found guilty of corporate killing

Cotswold Geotechnical Holdings (CGH) was found guilty of corporate manslaughter, in a landmark trial, at Winchester Crown Court on Tuesday.

It was found guilty of causing the death of 27 year old junior geotechnical engineer Alexander Wright in September 2008, under the Corporate Manslaughter Act 2007.

The company will be sentenced tomorrow.

The firm had denied the charge, but was found guilty by the jury after just one and a half hours’ deliberation on Tuesday. Sentencing takes place today.

Wright died of traumatic asphyxia on a site in Briscombe, Gloucestershire, when a 3.8m deep trial pit that he was working in collapsed, and the weight of the soil crushed his lungs. He was alone on site at the time of the accident.

Failure on guidelines

The prosecution had accused the firm of failing to follow its own safety guidelines, by having an unsupported trial pit over 1.2m deep and allowing an employee to enter it while alone on site (NCE 3 February).

Richard Lissack QC, defending, had told the court on Monday that Wright knew he should not enter a trial pit without supervision, and that he had sufficient training and experience to know that the pit could be dangerous.

Lissack had claimed that Wright’s death was due to his own “miscalculation” rather than to his company’s working practices.

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

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

Industry practice

Lissack also said CGH’s practice of entering unsupported trial pits deeper than 1.2m was not down to CGH director Peter 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.

He said Eaton was not wrong to leave Wright alone on site, because - witnesses had agreed - there was no need for him to enter any of the pits. It had been agreed that the pits would be backfilled and boreholes used instead.

Lissack added that there was no reason why Eaton should have specifically told Wright to stay out of the pit, as Wright would have known it was dangerous and unnecessary.

Not clear-cut

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.

Lissack told the jury 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 industry guidance which says that workers should not enter unsupported excavations more than 1.2m deep “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 had urged the jury not to base its decision on industry guidance. “You are not here to promote some national standards,” he said.

Landmark case

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 should not be convicted under the Corporate Manslaughter Act 2007.

The landmark case - the first to use the 2007 Act - has centred on the implementation of health and safety guidance.

This included British Standard BS6031: Code of practice for earthworks, which states that supports should be provided for pits deeper than 1.2m. Another standard BS5930: Code of practice for site investigations states that unsupported pits deeper than 1.2m should not be entered.

The ICE’s Specification for Ground Investigation makes similar recommendations. Mark Ellison QC, prosecuting, said that CGH failed to enforce its own health and safety rules and disregarded industry standards.

Detailed discussions

The jury heard detailed discussions about whether the pit in question should have been shored up or supported in some way; whether soil samples should have been taken from ground level instead; whether CGH employees were made aware of health and safety rules; whether Wright should have been left alone on site with open pits.

It also heard opposing views about whether the industry standard that unsupported pits below 1.2m should never be entered was a hard rule or flexible guidance.

The trial could have serious implications for how health and safety guidance is enforced.

Wake-up call

Standing Committee on Structural Safety (SCOSS) chairman John Carpenter said that the case could jolt engineering firms to review their health and safety arrangements. Too many companies establish health and safety measures but fail to enforce or document them, he said.

“It will be a massive wake-up call for companies. There are a lot of companies that have the procedures and then sit back and think that’s taken care of. Unless they’re being reviewed and audited, senior management don’t know whether they’re being enforced.”

The Corporate Manslaughter Act 2007 was created to hold organisations to account if a workplace death is caused by serious managerial failures, but lawyers have said this case will give limited insight into how the law applies to large companies as CGH is a small company with Eaton the only director.

Case timeline

28 January

Mark Ellison QC, prosecuting, told the court that Health & Safety Executive (HSE) officials had warned CGH in 2005 after a former employee expressed concern about having worked in trial pits without formal training.

He said Eaton then told HSE that he would use shoring for all future trial pits, or make sure their sides were battered back.

The court heard that Eaton was aware of British Standards regarding pits deeper than 1.2m, but had told police investigators the concept of 1.2m as the point of safety was a “glib assertion”.

The court heard that CGH’s own health and safety rules, written by Eaton in 1992, agreed with British Standards and ICE guidance in saying “timbering or other support must be used” in trial pits over 1.2m deep, and that such pits should not be entered by employees when alone on site.

The court heard that Eaton was aware of British Standards regarding pits deeper than 1.2m, but had said the concept of 1.2m as the point of safety was a “glib assertion”.

The court heard that on the day of the accident, Wright told site owner Mark Clubb that because CGH was a small firm he could enter unsupported trial pits, but if it were a larger firm “like Mowlem” it would not be allowed.

The prosecution said that CGH should have acted to make all seven of the pits on site safe, or inspected soil samples at the surface using an excavator.

2 February

Former CGH employee Alex McIver, a colleague of Wright’s, told the court he felt that unsupported trial pits were dangerous, but that Wright would have been a good judge of the risk.

“I would have been nervous going down [into the pit] myself but I would have assumed he would have known the risks himself. He had more experience in that sort of thing,” McIver said.

“I believe he would not have gone into a pit unless he thought it was safe to do so.”

8 February

The court was shown a DVD of police interviewing Eaton, who said he was “absolutely confident” Wright knew what he was doing. He said it was “absolutely essential” that workers did not enter pits when alone on site.

Eaton said he had used the same procedures to dig trial pits since 1971. He said he never found the time to update the 1992 health and safety booklet.

Eaton said he had been using the same procedures to dig trial pits since 1971. He said he had never found the time to update the 1992 health and safety booklet.

“Even though the documentation, from afar, was woefully inadequate it does not mean to say that our own health and safety actions were flawed,” he said.

Eaton said the 1.2m rule did not apply to engineers like Wright and himself, who had built up a practical knowledge of geotechnics. He said he had inspected 7,000 pits during his career and Wright up to 700.

9 February

Earth Science Partnership director John Campbell told the court it was “not surprising” to find a CGH employee inappropriately entering a pit, based on “how CGH conducted their business”.

Campbell told the court 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.

10 February

The defence read a statement by Eaton, saying Wright should not have entered the pit alone. “I just do not know why he did what he did,” Eaton said. He said he had made it clear that the pit in question was unsatisfactory and that a borehole would be used instead.

The court heard that CGH had a rule that no-one should enter a trial pit without another person watching.

Lissack told the court that engineering geologists like Wright can make their own assessments of whether it is safe to enter a trial pit.

The court heard that Wright had sufficient knowledge and experience to assess risks. Lissack told the court that engineering geologists can make their own assessments of whether it is safe to enter a trial pit.

The pit which killed Wright was dug in “firm to stiff clay all the way down”, the court heard.

Eaton defended his choice to use unsupported trial pits, saying that shoring was inappropriate for “routine” and “repetitive” trial pit work, where workers will usually only enter a trial pit for less than a minute. The time and cost of shoring up is disproportionate to the risk, he said.

The time and cost of shoring up is disproportionate to the risk, Eaton said.

Consultant Simpson Associates partner Martin Partridge said Eaton’s methods were no different from any other company doing site investigations with whom he has worked.

He said it is typical for unsupported pits up to 2m deep to be entered, if the ground conditions are firm.

The 1.2m rule is “a generic assessment,” he said, and may be too cautious for firm soils. He said he had never doubted Eaton’s judgment.

Plant hire contractor Barry Hawkins Contracting owner Frederick Hawkins said entry into unsupported pits deeper than 1.2m does still happen and he does it himself.

11 February

Ellison summed up the prosecution’s case, arguing that the way CGH’s trial pitting was managed was a cause of Wright’s death.

Of one former CGH employee he said: “he was never given any guidance, he was left to make his own decisions” about entering pits.

Another former employee said that Eaton told him not to enter unsupported trial pits of greater than 1.2m when working on a site for Bovis because “they are pretty hot on health and safety”, the court heard.

This showed that Eaton moderated his behaviour dependent on who he was with, Ellison said.

14 February

Lissack summed up the defence’s case by telling the court the tragedy was caused by Wright’s own error of judgment when he chose to enter the pit while alone on site, against CGH’s rules.

Lissack said CGH’s practice of allowing workers to enter unsupported trial pits “was because this was how things were done [in the industry]”, Lissack said.

He told the court that CGH’s way of working was “rather more commonplace than the prosecution would have you believe”.

15 February

Guilty verdict was returned after the jury retired for just 90 minutes.

Readers' comments (3)

  • Is anybody else incredibly frustrated by this case?
    I can barely believe that anybody would stand up in a Court today and say, '... this is how things are done....', when there were many reported breaches of Standards, Codes of Practice, Legislation, just about anything out there to protect us from such situations, let alone a QC.
    OK, the guy should not have entered the excavation, this much is fact, but GCH did not help themselves by not being able, reportedly, to demonstrate any form of risk assessment, method statement or training that may have served as a reminder about complacency.
    This is meant to be a Professional career and I can not see us being able to pursue that title (of Professional Engineers) and the recognition that should bring, when I read of such cases. Employers, This is what it boils down to: Information, Instruction, Training, Supervision; remember your SMSTS (or similar). This has been drilled into me and hopefully the vast majority of Engineers since the very early days of my career on site.

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  • Discuss what this conviction means for health and safety procedures in NCE's forum http://www.nce.co.uk/corporate-manslaughter-reviewing-health-and-safety/14.thread

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  • Whilst not wishing in any way to condone/excuse unsafe working practices. It is clear that unqualified/inexperienced juries are likely to accept the recommendations of a C.O.P's and the like, as cast in stone, regardless of context or expert testimony to the contrary. This would imply that the professional/expert view/interpretation of the applicability/context of a particular Code recommendation can no longer be legally applied as it has been the custom. Further, Code writers will need to be more circumspect in including recommendations to ensure that Professional Engineers have sufficient freedom to properly perform their duties/responsibility in a professional manner.

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