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September 7, 2011

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Roofer given suspended sentence for friend’s fatal fall

A self-employed roof contractor has been given a suspended prison sentence after one of his friends suffered fatal injuries falling through the roof of a domestic garage.

Steve Mason had been contracted to replace a flat roof on a double garage at a house in Stock, near Chelmsford. On 24 June 2009, a friend of Mason, 58-year-old James Waughman, visited the property and climbed a ladder to the roof so he could talk to him. As Mr Waughman stepped on the roof he suffered a stroke, and fell through a gap in the roof. He landed on the garage floor and suffered multiple injuries, from which he died three weeks later while in hospital.

HSE inspector Lesley Balkham told SHP that there was no barrier protection around the edge of the roof, or the gap, and the method of work was unsafe. She explained that the work should have been carried out from a bird-cage platform, or a MEWP.

Said the inspector: “This sends out a powerful message to roofing contractors. Steve Mason failed to properly consider the risks of the job and act to limit the chances of injury, or even death. He should have put guard-rails around the edge of the roof and taken measures to prevent anyone falling through it, but he chose not to.”

Mason appeared at Chelmsford Crown Court on 25 August and pleaded guilty to breaching s3(2) of the HSWA 1974. He was given an eight-month prison sentence, which was suspended for 12 months, and was also ordered to pay £500 in costs.

In mitigation, Mason said he deeply regrets the incident and is still struggling to come to terms with the loss of his friend. He entered a guilty plea at the first opportunity and had no previous convictions. He subsequently completed the work using a tower scaffold.

Inspector Balkham concluded: “No matter what size the business, everyone in the construction industry should be very familiar with the risks of working at height and appreciate the importance of ensuring that the right precautions are put in place, however small the job.”

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Gary
Gary
10 years ago

This prosecution is ridiculous. The injured party could just as easily had a stroke climbing the ladder or driving to the site. Whilst the the safety measures may have been inadequate (but typical for domestic work) the underlying cause was not reasonably for seeable. It takes more than just a breach of the regulations to justify and expensive and time consuming prosecution. This is certainly not in the public interest and the penalty just highlights inconsistencies in enforcement in policy.

Nicholas
Nicholas
10 years ago

Domestic work not be covered by legislation but the issue here is that it appears that the work had been contracted out and so the person doing the work was bound by the requirements of the HSWA.
Although this is a tragic ‘one off incident’ (technically an ‘accident’) the requirements of the HSWA under section 3.2 are clear and there was a breach of the contractor’s duty of care to those not in his employment. Simply put, if the correct protection was in place would the death occurred?

Nicholas
Nicholas
10 years ago

An interesting view but for the conviction to have been sound then it would have to have been beyond alll reasonable doubt and that appears to be the case.
For the HSE to have pursued this then a duty of care needs to be established and a breach of that duty of care identified. In any case if this was purely a domestic accident then the HSE wouldn’t have pursued this to the level that they have and secured a conviction.
It is a tragic accident, but then again aren’t they always?

Nicholas
Nicholas
10 years ago

Ah, I’ll bow to your superior knowledge.
That said I’m still unsure why the action taken by the HSE is unreasonable. Someone has lost a life, presumably as a result of the failure to prevent access or manage risk. There’s the strong possibility that a fall, regardless of cause/height, could have had the same result and as such pursuing the conviction was the right thing to do.
If this had happened in a faceless building company would the pursuit of a conviction be as controversial?

Ray
Ray
10 years ago

Another bizarre case. You could visit almost any domestic construction site and find a raft of poor practices. Simply because domestic work is not covered by legisation. I fail to see the purpose of this prosecution of a self-employed worker. A suspended sentence and a £500 fine for what is an effect a tragic but one-off incident. Not in the public interest I suggest.

Ray
Ray
10 years ago

It is not clear from the article whether ‘contracted’ means engaged or sub-contracted. The client does appear to be a domestic one and therefore the breach is a technicality.

Whether the fatality would have occurred if the ‘friend’ had not been the victim of an untimely stroke is a matter of conjecture. However, if the ‘but for’ test was applied, then the stroke would possibly have been deemed the proximate cause. This prosecution appears to be based on purely the tragic outcome.

Ray
Ray
10 years ago

Indeed tragic and bizarre. However, no duty of care need be established as it was a criminal prosecution pursuant to HSWA. The lack of a SSoW plus a strict liability offence would have sufficed to gain a criminal conviction even if it was domestic work – s3(2) does not infer whether the offence is domestic or commercial. In this example a self-employed worker faces the same liability as an employer ie s3(1).

Ray
Ray
10 years ago

Proof beyond all reasonable doubt applies to all criminal convictions. I think you are getting confused with s40 of HSWA – a reverse burden of proof; where the accused has to prove that it was not practicable or reasonably practicable to do more than they did to satisfy a duty or requirement. This does not infer you are are guilty until proven innocent.

With a strict liability offence the prosecution does not have to prove a gulity mind, only an offence was committed by an act or omission.

Ray
Ray
10 years ago

I think the recent comments justify my original concerns that this prosecution and the subsequent punishment appears completely disproportionate. Here is a clear case of someone being prosecuted due to the outcome and not disimilar to R v Porter, sensibly the Court of Appeal saw good sense to quash the conviction.

I find it so frustrating that directors can can go into voluntary liquidation to avoid liability, whereas a hard working self-employed person gets the book thrown at him.

Richard
Richard
10 years ago

There may have been a duty of care & a breach – not to mention some unfortunate, unforeseen and tragic circumstances (I’m not going into those again) but once again it’s the small man (the easy target) thats gets a hard hit which contrasts oh so starkly with other fatality & injury scenarios where directors get off much more lightly due to Teflon and liquidation
Directors – when they have such pivotal directing roles in companys – why usually don’t we score more decent personal hits on them?

Scott29
Scott29
10 years ago

Bizarre indeed. On another page, Foxtel are fined £1 because someone they employed fell and died. Fair enough they had ceased trading but have their directors?

I don’t think the pursual of this particular case does the HSE any good at all. It makes it look heavy handed and authoritarian and blemishes what little respect the industry still has.

Tom
Tom
10 years ago

HSE inspector Lesley Balkham states that: “the work should have been carried out from a bird-cage platform, or a MEWP.” This is not practicable in flat roofing work, and offering such advice will perpetuate the ‘health and safety legislates against my job’ attitude so many small companies have.
A suggested method is a small scaffold tower and mobile edge protection that is moved to the edge of each board as it is laid. You are more likely to fall out of a MEWP leaning over to use a nail gun.

Wainey2
Wainey2
10 years ago

Nick I think you’ll find that the proof of beyond reasonable doubt does not apply when a prosecution is under HASAWA. In effect, the fact that you are being prosecuted means that you have to prove your innocence. This is, I believe, the only situation in the English legal system where you are not innocent until proven guilty.