Karen Railton

10-year-old Shea Ryan and some friends entered a construction site at night. Shea attempted to climb down an incomplete manhole there but slipped and fell into the chamber. He sadly lost his life.

The court heard evidence of repeated breaches of site security by both adults and children, damaging fencing, vandalising machinery, and abusing security staff both physically and verbally. The police were notified on numerous occasions and the contractors on site were repeatedly replacing fence panels and reinforcing these where they could.

There were two construction sites adjacent to each other, each experiencing these difficulties. The site was partially transferred from one contractor to another before the accident occurred.

The inquiry, therefore, focused on three key issues:

• Security of incomplete manholes;
• Perimeter site security; and
• Site handover procedures.

The sheriff has determined that there were a number of causes of the accident that resulted in Shea’s death including:

• Removal of a ballast bag of material that had previously been placed on the incomplete manhole as a control measure;
• Failure in communication of a previous control measure - knowledge of vandalism to perimeter fencing in the vicinity of the playpark and of unauthorised access by children to the site;
• Failure of the principal contractor to take sufficient measures to prevent unauthorised access to the manhole by weighing it down or enclosing it with fencing;
• Failure of the principal contractor to assess the risk of unauthorised access, to inspect and maintain fencing, and to inspect the manhole at the end of each day to ensure it was covered; and
• The actions of Shea Ryan climbing into the manhole.

The reasonable precautions the sheriff has considered that may have prevented Shea’s death are:

• A ballast bag of material that had previously been on the manhole could have remained in place;
• Better co-operation between contractors following temporary transfer of the site in relation to the risks of the presence of the incomplete manhole, site security and vandalism issues and multiple incidents of unauthorised children; and
• The principal contractor could have placed a heavy object on the manhole or enclosed it in fencing, inspected the manhole each day, and made the perimeter fencing more secure by properly assessing the risk of unauthorised access, erecting triangulated fencing, having daily checks and monitoring damage.

This then translates to defects found in the system of working adopted here, in that the sheriff found that the principal contractor had no system for daily checks of fencing specifically at the end of each day; to document or report damaged fencing or to ensure the manhole was fully covered or fenced. He also determined a defect in the system of working of the transferring of sites and providing the information detailed above and continuing to provide information throughout.

Facts relevant to the death were the proximity of a play park to the site with that remaining open during construction and Covid lockdown precluding the principal contractor from visiting schools to advise on dangers.

Recommendations

Importantly, the sheriff made a number of recommendations, in the main directed to the HSE, for changes in the guidance issued to the construction industry. These recommendations may very well be implemented by the HSE, therefore are important to consider when managing your sites going forward.

The Sheriff made seven recommendations to the HSE, asking them to review their guidance to include:

1. Emphasis and promotion of the objective of protecting children from construction site risks – to promote taking precautionary measures to reduce the risk of children trespassing and to protect those trespassing from incomplete manholes.

2. Provision for principal contractors to establish systems of work to record, document, report (to suitable duty holders) and monitor damage to perimeter fencing and repair, plus all incidents of unauthorised access and action to prevent recurrence.

3. Express provision that measures should be taken to prevent unauthorised access to manholes outwith working hours by placing an object of sufficient weight that it cannot be moved (not just the lid) to fully cover the access hole or to erect fully enclosed fencing around and over it.

4. Promotion of the duty on proximate principal contractors to co-operate with each other to satisfy Reg 8(4) CDM 2015 and to promote the protection of children.

5. Provision for cooperation between proximate principal contractors by promoting the establishment of systems of working to facilitate routine and timely disclosure of information between contractors concerning incidents of unauthorised access (especially by children), vandalism or damage to fencing or equipment etc, thefts, or abusive conduct to any workers.

6. Provision for greater cooperation between principal contractors where control of a site (or part thereof) is to be transferred to another principal contractor and that should include:

   1. Disclosure of any risk of injury or death arising from the site;
   2. The precautionary measures to control that risk;
   3. Incidents of unauthorised access (especially by children);
   4. Incidents of vandalism or damage to fencing equipment etc;
   5. Theft from site; and
   6. Incidents of abusive/disorderly conduct to workers.
      
      

7. Provisions highlighting to principal contractors the increased risk of damage and breach of fencing at sites near to play parks, the resulting increased risk of children gaining access there, the necessity to consider these increased risks in any risk assessment and to consider enhanced precautionary measures.

And finally, not to the HSE but to local authorities, they should:

8. Review practices to ensure that any playpark for which they have responsibility and is in the vicinity of a construction site should be risk assessed to determine whether measures can be put in place to control risks, whether the park should remain open or be temporarily closed.

What we think

It is unfortunately very common for trespassing onto construction sites to occur. The issues are complex and varied. This determination may mean that further consideration should be given specifically to the safety of children who may access your sites. It raises the question – can a construction site be made safe for children?

Karen Railton is a partner at DAC Beachcroft