Managing risks associated with work place transport is a major consideration in many industries including construction, logistics and distribution, manufacturing and retailing as accidents involving vehicles and pedestrians often result in fatal or serious life changing injuries. The consequences for duty holders, responsible for managing those risks can be significant and in some cases pose an existential threat to a business. Those found to be in breach of health and safety laws face very large fines, significant claims and damaging publicity.
Review of statistics
According to the Health and Safety Executive (HSE), there were 144 workers killed in 2017/18. Of those 144, 26 were struck by a moving vehicle, 23 struck by a moving object and 13 contact with moving machinery, all of which are relevant to this discussion on movement of pedestrians and traffic routes in the workplace.
General duties to ensure the safety of employees and non-employees are contained within ss2 and 3 of the Health and Safety at Work etc. Act 1974 and Regulation 17 of the Workplace (Health, Safety and Welfare) Regulations 1992. Every workplace should be organised in such a way to ensure pedestrians and vehicles can circulate safely. Workplace traffic routes should be suitable for pedestrians and vehicles using them. Where pedestrians and vehicles use the same traffic route there should be adequate segregation.
When we think of traffic routes it’s easy to envisage a well-organised factory with designated walkways and barriers. A Google search brings up Nestlé’s state of the art double barrier system (in bright yellow!), installed in its Netherlands manufacturing site to protect and segregate vehicles and pedestrians. This might be the panacea of segregation, but what happens when things go wrong and how do the Courts approach an employer found to be in breach of health and safety law?
The court's approach
The following three cases highlight the importance of segregating pedestrians and vehicles in very different types of workplace:
In 2014, Rudolph and Hellmann’s (RHA) BMW owned Mini plant in Oxford suffered two accidents in two days:
1) a worker's foot was crushed when he was struck by a forklift truck
2) a manager sustained multiple injuries including a fractured pelvis and punctured lung when a box fell from the forks of a truck when he was walking along the marked pedestrian walkway.
Following an investigation by the HSERHA, the company was charged and pleaded guilty to a breach of the general duty under section 2 of the Health and Safety at Work etc. Act 1974 to ensure the safety of its employees. At the sentencing hearing in Oxford Crown Court in 2016, it was accepted risk assessments were poor, supervisors were not properly trained and there was inadequate segregation of pedestrians and vehicles. The company was fined £265,000 and ordered to pay £14,943 in costs.
Construction site fatality
Construction sites present a particularly hazardous environment. It can be more difficult to manage safety on construction sites where the landscape is ever changing and a number of different contractors are present. Specific regulations (The Construction (Design and Management) Regulations 2015) apply to organisations and individuals involved in construction projects. The importance of keeping construction workers safe and properly segregated from vehicles is particularly importantand failure to do so often has fatal consequences. On 4 February 2019 Allenbuild Ltd, a London based construction company was fined £600,000 after an agency worker was struck and killed by a dumper truck on a building site in Edinburgh in 2016. The site was being redeveloped to provide 344 student flats and an underground car park. The agency worker involved was crouched down respraying paint markings at the bottom of a dirt ramp providing access to the car park when a dumper truck, driven by an employee of another contractor on site, struck him. Unfortunately, the driver had restricted visibility due to the load of excavated earth that the vehicle was carrying.
Allenbuild pleaded guilty to a breach of Regulation 27 (1) of the Construction (Design and Management) Regulations 2015 ( a construction site must be organised in such a way that, so far as is reasonably practicable, pedestrians and vehicles can move without risks to health or safety ).
The McDonald’s Drive-Thru
The fast food giant McDonald’s, was fined £200,000 and ordered to pay £26,343 in prosecution costs in 2018 when an irate customer drove at a teenage employee in the restaurant car park. The prosecution illustrated that McDonald’s should have considered the possibility of a collision, whether accidentally or deliberately, between vehicles and its workers. It also highlights how broad the duty is – in this case McDonald’s was charged with a breach of section 2 of the Health and Safety at Work etc. Act, the general duty to ensure, so far as is reasonably practicable the health safety and welfare of employees whilst they are at work.
On 18 April 2014, Danny Osborne a 17 year old employee was asked by his manager to go outside the McDonald’s restaurant and direct traffic towards either the car park or to the drive-thru at the Lakeside Retail Park in West Thurrock. He was hit by a car and suffered a fracture to his knee when struck by a customer’s vehicle.
Basildon Crown Court heard that the road layout was complicated and signs were unclear. An investigation carried out by Thurrock Council found that McDonalds had not provided staff with sufficient training to direct and control traffic. Two other employees suffered injuries performing the same role as Mr Osborne, although their injuries were less serious.
The three very different cases above show the extent of the duty to manage vehicle movements in the workplace and ensure the safety of pedestrians.
Similar duties are imposed on those operating public car parks to protect members of the public walking to and from vehicles. Pedestrian routes marked out in front of parking spaces will be all too familiar to those who regularly use supermarket car parks. This perhaps illustrates the limited extent to which pedestrians and vehicles can be segregated in certain environments and the increase in the number of shared spaces for vehicles and pedestrians in city centres points to a different approach to pedestrian safety in a more open environment.
The HSE publishes detailed guidance on how to manage vehicle movements in the workplace. It is essential to assess the risks associated with vehicle and pedestrian movements and to eliminate the risk, where possible, by installing separate traffic routes and using other hard measures such as barriers to completely segregate pedestrians and vehicles. Where this is not possible, control measures should be put in place to ensure, so far as reasonably practicable, that pedestrians are not put at risk. Employees should be instructed on the use of traffic routes and monitoring put in place to ensure these are being used. The Definitive Sentencing Guidelines for health and safety offences have resulted in a substantial increase in fines for duty holders found to be in breach of their obligations to employers and the public. The price of failure has never been higher.
Article written by Diana Goldstein