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February 27, 2009

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in court

Poor advice lands consultant in dock

A quarry owner and its safety consultant have been fined for failing to carry out a suitable risk assessment to protect employees working with hazardous substances.

The prosecution follows an incident on 3 September 2007, at a quarry in Keighley, Yorkshire, in which a stonemason fell three metres from the side of a tipper truck, breaking both of his heels. The workman was attempting to undo two of the four chains connecting the tipper truck to a skip, so that the skip could be tilted to allow waste stone to be loaded into it. But once he released the first chain, the skip rocked, causing him to lose his balance and fall off the truck to the ground below.

During an HSE investigation into the incident, inspectors found that the firm did not have adequate controls in place to protect employees from inhaling stone dust. The owner of the quarry, George Farrar (Quarries) Ltd, informed the HSE that it had introduced these controls and implemented a risk assessment after seeking advice from an independent safety consultancy.

Consequently, the Executive decided to bring charges against consultant, Richard Atterby, an employee of Safety Management Services Ltd, rather than his employer, as he had personally been responsible for the quarry’s safety management for more than three years.

George Farrar pleaded guilty at Bradford Magistrates’ Court, on 7 January 2008, to breaching reg.3(1) of the MHSWR 1999, reg.6(2) of the Work at Height Regulations 2005, and reg.7(1) of the Control of Substances Hazardous to Health Regulations 2002. It was fined £3000 for each offence and ordered to pay £3000 compensation to the injured worker and £4532 in costs.

Richard Atterby appeared at the same court on 24 February and pleaded guilty to breaching s36(1) of the HSWA 1974, for failing to put in place a suitable risk assessment to protect employees from exposure to hazardous substances. He was handed a £1000 fine and ordered to pay costs of £700.

In mitigation, George Farrar said that it had relied on Atterby to provide an adequate risk assessment and had paid an annual fee in excess of £5000 for this advice. The firm has subsequently changed its safety consultant and has carried out a new risk assessment.

Atterby admitted that the risk assessment was not suitable and told the court that this was the first time that he had been prosecuted. He said that he had worked in the safety industry for more than 50 years, and as a result of this incident, he has decided to retire.

HSE Principal Inspector, Keith King, said: “The risk assessment done by Mr Atterby was superficial and totally inadequate. It led to a high risk of exposure to respirable silica during stonemasonry work because effective measures to mitigate exposure were not determined and implemented.

“This should serve as a salutary lesson for all employers who rely too readily upon paid advisors. You cannot outsource your responsibilities — the duty of care remains with you as an employer, and the selection and use you make of consultants is crucial. Employers have to make absolutely sure that any one who they commission to carry out assessments on their behalf is fully competent to do so.”

Atterby’s membership of IOSH, which has a Code of Conduct requiring its members to work to the highest standards, will now be reviewed by the Institution. Explaining how the disciplinary process generally works, IOSH ethical-practice manager, Simon Buckler, told SHP: “A conviction for a relevant criminal offence, such as a breach of the HSWA 1974, may lead to disciplinary proceedings against a member. Each case will be considered on its own merits. In the most serious cases, a member may be expelled by the Disciplinary Committee.

“But this again raises the issue that, even if IOSH disqualifies one of its members, as the law stands that individual could continue to present themselves as a ‘health and safety advisor’. Our lobbying work in this area has won the full support of the House of Commons Work and Pensions Committee. This has encouraged IOSH to continue its work to ensure that competent advice is available to the public, by calling on government to create a formally-regulated health and safety consultants register.”

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