Prevention of Future Deaths reports · 2022
Regulation 28 report to prevent future deaths, reference 2023-0004, written 30 Dec 2022. A coroner writes one of these when an inquest reveals a risk that could cause further deaths unless something changes.
| Date of report | 30 Dec 2022 |
|---|---|
| Reference | 2023-0004 |
| Deceased | Malcolm Basten |
| Coroner | Caroline Topping |
| Coroner area | Surrey |
| Category | Accident at Work and Health and Safety related deaths |
| Source | judiciary.uk record · original PDF |
| Responses published | 1 |
Text extracted from the PDF text layer. Reproduced verbatim, including the scan's own layout.
IN THE SURREY CORONER’S COURT IN THE MATTER OF: Malcolm James BASTEN __________________________________________________________ The Inquest Touching the Death of Malcolm James BASTEN A Regulation 28 Report – Action to Prevent Future Deaths __________________________________________________________ THIS REPORT IS BEING SENT TO: • The Right Honourable Mel Stride Secretary of State for Work and Pensions • , Chief Executive of the Health and Safety Executive 1 CORONER Caroline Topping HM Assistant Coroner, for the County of Surrey 2 CORONER’S LEGAL POWERS I make this report under paragraph 7, Schedule 5, of the Coroners and Justice Act 2009 and Regulations 28 and 29 of the Coroners (Investigations) Regulations 2013. 3 INVESTIGATION and INQUEST The inquest was opened on the 14th March 2016 and resumed and concluded before a Coroner sitting with a jury on the 19th October 2022. The cause of death was: 1a. Cerebral Oedema 1b. Acute and Subdural Haematoma (Operated) 1c. Head and Chest Injuries The jury found that: Mr Basten died on 28th February 2016 at St George's Hospital, Tooting while in care for head and chest injuries sustained on 25th February 2016. These injuries were sustained during a fall which took place while working at a height on a construction site in Chaldon. Following the incident, Mr Basten was airlifted to St George's Hospital, where he was diagnosed with an acute subdural haematoma. Mr Basten was operated on for the acute subdural haematoma but following the operation he suffered a cerebral oedema to which he succumbed. Mr Basten had been engaged as a carpenter to work on the roof and started work before the end of January 2016. On the morning of 25th February 2016 Mr Basten was working on the first-floor dormer at the rear of the property at a height of at least 2.5m. This first-floor area was comprised of open wooden joists and an RSJ suspended at least 2.5m above concrete and wooden board. There was no safe internal access to the first floor. This area did not have edge protection and was not completely boarded out. On the day in question, this area was access via an unsecured scaffold ladder. There is no material evidence of planning for the first-floor timberwork regarding health and safety. There was no site supervisor at the time of the incident. The Conclusion was Unlawful Killing 4. CIRCUMSTANCES OF THE DEATH Malcom Basten was working on a domestic building site engaged in constructing the roof at first floor height. Construction work had reached the first floor at least a month before his death but no adequate health and safety measures had been put in place by the principal contractor to safeguard him in his work. There was no edge protection at the place where he fell, no boarding on the open wooden joists and no safe access to the first floor. Access was by means of an unsecured scaffolding ladder which was not designed to be used as a free-standing ladder, it did not have rubber feet and was too short. The Construction (Design and Management) Regulations 2015, Regulation 6 requires the principal contractor to notify the HSE in writing of the project if it is scheduled to last longer than 30 working days and have more than 20 workers working simultaneously at any point in the project or exceeds 500 person days. The size of this contract did not fall within this definition and the HSE were therefore not notified about it. 5 CORONER’S CONCERNS During the course of the inquest the evidence revealed matters giving rise to concern. In my opinion there is a risk that future deaths could occur unless action is taken. In the circumstances it is my statutory duty to report to you. The MATTERS OF CONCERN are as follows. – The evidence showed that: 1. This was a sizable project with considerable work at height. No statutory agency was required to be notified of the work and then inspect the project during the construction. 2. There is no mandatory requirement for the principal contractor to undertake health and safety training from an accredited organisation before engaging in this type of project. 3. There is no mandatory requirement for principal contractors to undertake health and safety training from an accredited organisation after an incident such has this has occurred on one of their projects, nor to notify the HSE of any projects they undertake thereafter. 6 ACTION SHOULD BE TAKEN In my opinion action should be taken to prevent future deaths and I believe your organisation has the power to take such action. 7 YOUR RESPONSE You are under a duty to respond to this report within 56 days of the date of this report, namely by 1st March 2023. I, the coroner, may extend the period. Your response must contain details of action taken or proposed to be taken, setting out the timetable for action. Otherwise you must explain why no action is proposed. 8 COPIES and PUBLICATION I have sent a copy of my report to the Chief Coroner and to the following Interested Persons I am also under a duty to send the Chief Coroner a copy of your response. The Chief Coroner may publish either or both in a complete or redacted or summary form. He may send a copy of this report to any person who he believes may find it useful or of interest. You may make representations to me, the coroner, at the time of your response, about the release or the publication of your response by the Chief Coroner. 9 Signed: Caroline Topping Dated this 30th December 2022.
1 response published against this report on judiciary.uk. A response is a body's written reply to the coroner's concerns; publication is at the discretion of the Chief Coroner's office, so an absent response does not mean nobody replied.
Ms Caroline Topping HM Assistant Coroner for The County of Surrey Health and Safety Executive Chief Executive Redgrave Court Merton Road Bootle Merseyside L20 7HS 31 March 2023 Dears Ms Topping, Fatal Accident to Malcolm James Basten on February 28th, 2016 Regulation 28 Report Action to Prevent Further Deaths dated 30th December 2022 Thank you for your Regulation 28 report of 30th December 2022, which raises important health and safety concerns. May I take this opportunity to express my condolences to the bereaved family and all affected by the tragic circumstances that gave rise to the inquest. Your Regulation 28 report arose from an accident I which Mr Basten suffered a fall from the first floor of a domestic construction site where he was working. The investigation is ongoing and HSE are in the process of preparing a file to be submitted to our Legal Services Division for a decision to prosecute. HSE will make sure that Mr Basten’s family are kept informed of the outcome. Your report sets out three key matters of concern; Key Concern 1. This was a sizable project with considerable work at height. No statutory agency was required to be notified of the work and then inspect the project during the construction. The notification requirements of Schedule 6 to Construction (Design and Management) Regulations (CDM) 2015 have been directly transposed from the EU Directive and are set out in L153, Managing health and safety in construction https://www.hse.gov.uk/pubns/priced/l153.pdf . Although the UK has now left the EU, CDM 2015 is retained EU legislation. The Government is currently considering what steps it will take with regard to EU law. CDM provides that for any construction site on which (1) work is scheduled to last for more than 30 working days with more than 20 workers occupied simultaneously, or (2) on which the volume of work is scheduled to exceed 500 person-days, specified particulars of the site must be notified to the national competent authority (HSE). The project where the incident occurred was not notified to HSE as it did not meet either of these criteria. For the year 2021/22 there were 51,530 new notifications of construction projects in Great Britain. This figure doesn’t include ongoing projects previously notified. Many more construction sites don’t meet the threshold for notification and go ahead without any formal notification, such as the site Mr Basten was working on. The current notification arrangements ensure that HSE is informed of the most significant construction projects. HSE currently uses this information as operational intelligence to help us direct our finite regulatory resources. This is in line with HSE’s overall approach to regulating the construction industry. HSE is not, and has never been, resourced to visit every site that sends in a notification. Due to the overall volume of all construction activity nationally, increasing the range of projects requiring notification would cause a significant increase in the amount of information the industry would have to supply to HSE and which HSE would have to process. This extra information would not significantly improve HSE’s ability to target its resources while also creating significant extra administrative burdens. Key Concern 2 There is no mandatory requirement for the principal contractor to undertake health and safety training from an accredited organisation before engaging in this type of project. Although there is no mandatory requirement for the duty holder to undertake health and safety training Regulation 8 of CDM requires that anyone undertaking construction must be able to demonstrate that they have the appropriate health and safety skills, knowledge, experience. Where they are an organisation, the organisation should have the capability to carry out the work in a way that secures health and safety. If the dutyholder cannot demonstrate that they have these attributes then they should not accept the work. CDM sets out a clear goal for all dutyholders to meet on site, specifically that anyone involved in a project (such as the Principal Contractor (PC)) should have the right level of health and safety skills appropriate for the job. Regulation 13 of CDM goes into more detail about the responsibilities of the PC, which anyone or any organisation should be able to demonstrate if they want to take on the PC role. The published guidance on CDM (L153 – Managing health & safety in construction) contains more information about how to achieve compliance with the Regulations relating to skills, knowledge and experience. Paragraph 171 of L153 does state that any worker undertaking a site supervisory role should be provided with nationally recognised site supervisory training, which includes leadership and communication skills. HSE expects a PC to be able to demonstrate that they have met the standard required by the guidance. Paragraphs 162 to 172 of L153 make it clear that while formal training courses have a crucial role, they should not be the only consideration. Newly trained people will need closer supervision and, if training took place some time ago, the necessary skills may have waned. Our guidance recommends a recent demonstration of capability alongside any training records. Key Concern 3 There is no mandatory requirement for principal contractors to undertake health and safety training from an accredited organisation after an incident such as this has occurred on one of their projects, nor to notify the HSE of any projects they undertake thereafter. HSE’s Enforcement Policy Statement (EPS) sets out the principles inspectors should apply when determining what enforcement action to take in response to breaches of health and safety legislation. Fundamental to this is the principle that enforcement action should be proportional to the health and safety risks and the seriousness of the breach. This means that if a lack of health and safety capability played a part in an incident, then requiring a dutyholder to undertake training will be a potential line of enforcement for HSE. Although HSE has no formal policy to follow up known poor performers, evidence of poor health and safety performance is taken into account during any future interactions with HSE. This is described in HSE’s Enforcement Management Model. As such, when considering whether enforcement action is proportionate, HSE views previous relevant enforcement action against a dutyholder as a significant aggravating factor. In summary, the requirement for notification is based on the numbers of workers on a project and the duration of the project and not on the previous health and safety record of the contractor. I hope this response is helpful and I will be happy to explain any of the contents of the letter should you require me too. Yours Sincerely Chief Executive
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