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Reporting of accidents at work to the HSE: builder receives prison sentence for failure to report serious incident at construction site

Posted: 14/06/2021

The Health & Safety Executive (HSE) is responsible for looking at ways to prevent accidents and preserve employee safety. One of the measures used to manage this is the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013 (RIDDOR). The regulations put duties on employers, the self-employed and people in control of work premises (the responsible person) to report certain serious workplace accidents, occupational diseases and specified dangerous occurrences (near misses). The aim behind this is to identify where there may be poor safety practices in a workplace that could result in further injuries and work with employers to improve their safety procedures.

What must be reported?

To mandate a RIDDOR report, the injury must be work related. In terms of the criteria for reporting, the starting point is that all deaths of workers and non-workers, with the exception of suicides, must be reported if they arise from a work-related accident, including those resulting from an act of physical violence to a worker. There are then various 'specified injuries' (regulation 4) that must also be reported:

  • fractures, other than to fingers, thumbs and toes
  • amputations
  • any injury likely to lead to permanent loss of sight or reduction in sight
  • any crush injury to the head or torso causing damage to the brain or internal organs
  • serious burns (including scalding) which:
    • cover more than 10% of the body
    • cause significant damage to the eyes, respiratory system or other vital organs
  • any scalping requiring hospital treatment
  • any loss of consciousness caused by head injury or asphyxia
  • any other injury arising from working in an enclosed space which:
    • leads to hypothermia or heat-induced illness
    • requires resuscitation or admittance to hospital for more than 24 hours

In addition, accidents must be reported where they result in an employee or self-employed person being away from work, or unable to perform their normal work duties, for more than seven consecutive days as the result of their injury.

There are various other criteria for reporting – including certain occupational diseases, dangerous occurrences and gas related incidents as well as incidents affecting members of the public.

HSE and court take a hard line on non-compliance with reporting

Whilst these reporting requirements are statutory and mandatory, not all employers comply with them and a recent case, resulting in a prison sentence for the offending employer, indicates the severity with which the HSE and the courts may treat non-compliance. The individual prosecuted was a builder, Paul Adams (trading as Surrey Conversions) who, at the time of the events in question was working on a construction project in New Malden.

On 8 January 2019, one of Mr Adams’ workers, Simon Lewis, was clearing the site with an excavator, which tipped while digging and trapped his leg, resulting in its amputation. Mr Lewis was 53 at the time of the incident. This was clearly a serious injury and should have been reported to the HSE under the RIDDOR regulations. However Mr Adams did not notify the HSE within 10 days, which is the statutory requirement, and the HSE only found out about it following a complaint from Mr Lewis on 23 August 2019 (despite Mr Lewis’s solicitors requesting disclosure of the appropriate report and dialogue with the HSE from Mr Adams). Once the HSE became aware of the incident, one of its investigating inspectors attended the site. However, due to the significant lapse of time since the event and the progression of the works, he was unable to carry out a comprehensive assessment of how the accident occurred. What he did identify, however, was a failure on the part of Mr Adams to have appropriate health and safety training and procedures and compulsory employers’ liability insurance in place to protect his employees.

The HSE prosecuted Mr Adams for a breach of RIDDOR in that as a ‘responsible person’ (regulation 3(1)), he failed to report an amputation of a worker’s foot (regulation 4(1)(b)) as required by part 1 of schedule 1 of RIDDOR and he pleaded guilty.

The outcome was that Mr Adams was sentenced to imprisonment for 24 weeks, and ordered to pay costs of £2,033. Andrew Verrall-Withers, the HSE’s investigating inspector, said that the case ‘reinforces how important it is that incidents are reported so they can be investigated, and improvements made to prevent serious incidents in future’. In considering appropriate sentencing, the district judge accepted the HSE’s submissions as to culpability and harm. Adams’ culpability was high as he had actual foresight of, or wilful blindness to, the risk of offending but had nevertheless taken the risk. In terms of harm, the failure to report the injury meant improvements were delayed and that the level of harm risked was death, with a medium likelihood of such harm arising. She also found that there had been cost cutting at the expense of safety (an aggravating factor to be considered in assessing sentencing). Mr Adams’ apparent lack of remorse about the incident and failure to provide any evidence of investigation or improvements afterwards were also considered relevant.

Under the applicable sentencing guideline for this type of offence, a high culpability, harm category 2 offence gives rise to a starting point sentence of 26 weeks’ custody, with a range from a Band F fine (600% of weekly income) or a high level community order, up to one year’s custody. Where the potential sentence involves custody, the guideline requires a court to consider whether a custodial sentence is ‘unavoidable’ and cannot be suspended. The district judge, after careful consideration and taking all the factors into account, decided an immediate sentence was unavoidable. She fixed the term at 36 weeks, on which she gave the maximum one-third credit for the guilty plea.

Importance of RIDDOR and implications for claims for accidents at work

As above, the main aim behind RIDDOR reporting is to identify poor safety practices and ensure that employers take steps to reduce risk and prevent future similar incidents. They also have a role in identifying employers who consistently fail to manage workplaces safely, resulting in multiple incidents and reports. An employer who does not prioritise safety may not be keen on reporting such incidents, which is why it is important that the HSE takes a tough line on failures. In the context of a personal injury claim arising out of an accident at work, the RIDDOR report can often be crucial evidence as it will have been prepared soon after the incident and contain details about how the accident happened. Any consequent investigation / findings by the HSE can also be of assistance. Requesting disclosure of such reports is therefore a standard early step in cases involving serious injuries at work.

What should individuals do if injured at work?

Anyone who suffers a reportable injury in the workplace should be asking their employer / the manager of the workplace whether such a report has been completed. The existence of the report will potentially have several benefits for the injured individual – the potential for improvement of work practices, a contemporaneous record of events and key evidence if they do bring any form of personal injury claim. If an appropriate report does not appear to have been produced, then the individual should contact the HSE themselves and seek guidance as it can make succeeding on liability in the subsequent civil claim a much easier and quicker process.

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