Contractor handed £146k fine for fatal excavator crush goes into liquidation

Birch Brothers (Kidderminster) Ltd was the principal contractor on a construction project in Derbyshire that was building a concrete overflow weir structure on the site. The Midlands firm had brought in steel fixers and joiners to undertake the work.

The company pleaded guilty to breaching reg 27(1) of the Construction (Design and Management) (CDM) Regulations 2015 after a joiner was fatally crushed by a 20-tonne excavator.

Birch Brothers (Kidderminster) Ltd had hired 48-year-old Philip McDonald as part of a team to help construct the concrete overflow weir structure at Monks Pond, near Ashbourne in Derbyshire when the fatal incident took place on 5 September 2017.

McDonald was standing with colleagues on a road above the work area waiting for the 20-tonne excavator to remove sand from trench boxes.

As the excavator was removing the material, the heavy machinery rotated clockwise and crushed McDonald.

The Health and Safety Executive (HSE) investigation found a series of failings that led to the fatal accident.

To start with, the principal contractor had not adequately planned the work. Significantly, neither the excavator’s operator nor the pedestrian workers moving around in the area had been issued with any instructions.

The HSE also found that the company had failed to adequately assess the risks associated with the hazardous work and crucially there was no segregation of the machinery and the pedestrians.

The HSE investigation highlighted that, despite the hazardous nature of the work and the fact that machinery was operating close to workers, the principal contractor did not appoint a banksman to ensure everyone’s safety as the excavator was undertaking work.

Birch Brothers (Kidderminster) Ltd also failed to appoint a supervisor to oversee this work to ensure that it was safely carried out.

After the fatal incident, the HSE issued a prohibition notice that prevented the principal contractor from continuing work on site until inspectors were satisfied that site had been properly organised, so that mobile plant could be operated safely and would not pose any risks to pedestrian workers.

Birch Brothers (Kidderminster) Ltd of Barracks Road, Sandy Lane Industrial Estate, Stourport-on-Severn, DY13 9QB, pleaded guilty to breaching reg 27(1) of the CDM Regulations 2015 at Kidderminster Magistrates Court last week.

In addition to the £146,000 fine, the business must also pay £4,621. 90 in costs.

According to the HSE, the principal contractor appointed liquidators in September 2022.

Commenting on the case, HSE inspector Katherine Cotton said: ‘Those in control of work have a responsibility to organise their sites and devise safe methods of working, in relation to vehicles and pedestrians, and ensure they are implemented.

‘Construction site vehicle incidents can and should be prevented by the effective management of transport operations throughout the construction process.’

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Steve Kilburn
Steve Kilburn
I initially trained as an industrial chemist working in a variety of manufacturing environments eventually moving into quality management which grew to encompass environmental and occupational health and safety management systems. I hold a Masters Degree in Health and Safety law and Environmental Law and a Post Graduate Certificate in Sustainable Waste Management and I am a Graduate Level Member of the Institution of Occupational Safety and Health (IOSH). In my spare time I enjoy reading, my favourite author is Stephen King, and listening to music, generally from the late 70’s, 80’s and 90’s.
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