Image supplied by the Health and Safety Executive
We spoke to HSE inspector Andy McGrory about how a difficult investigation into a rudimentary ‘lift shaft’ fall and as chance encounter with previous victims eventually put a 78-year-old landlord in jail for a year.
On 9 January 2017 Mariusz Kucinski was working in a building owned by Nicholas Devine in Liverpool. Mariusz lived in another property owned by Nicholas, so there was some kind of agreement going on in terms of working for rent.
“On the day of the accident, Nicholas took Mariusz to the premises in Seaforth, showed him what he wanted him to do and left him there," explained HSE inspector Andy McGrory. "There were other workers in the building at the time but, over the course of the day, they gradually left. Mariusz was on the top floor of the building, which was being converted into a recording studio, repairing and rehanging doors to the open lift shaft.
“It was called a lift, but it wasn’t really a lift and it wasn’t really a very good hoist – it was quite literally an electric hoist attached to a fabricated cage that was guided up and down between angle irons between the floors. It was a very Heath Robinson kind of set-up [whimsically elaborate machines].
"Mariusz was screwing some door furniture onto one door on the third floor," explained Andy. He had one foot on the platform of the hoist and one foot on the landing. While he was screwing the door furniture, the platform of the hoist dropped and he fell backwards into the lift shaft, following the cage down the shaft. He fell four floors all the way to the ground floor where he spent a number of hours lying on his own until Nicholas turned up to collect him. Nicholas then called an ambulance.”
While this wasn’t traditional employment, because Nicholas was providing all the materials and telling Mariusz what to do and when, Nicholas had responsibility for health and safety as an employer, similar to the situation in the recent Midland Roofing case covered by IOSH magazine. As in that case, Nicholas also didn’t have Employer’s Liability Compulsory Insurance (ELCI) or public liability insurance either.
“Mariusz suffered life-changing injuries in the fall and is now permanently paralysed from the sternum down,” Andy said.
The investigation
When looking at the facts of the incident now, it all appears fairly straightforward. However, in terms of what Andy and the HSE actually knew about the incident in the days, weeks and months immediately after it occurred, things were far from clear. Indeed, reaching a full conclusion required some inspired detective work and a bit of luck.
“This is probably the most difficult case I have ever been involved in," said Andy. "Firstly, it wasn’t reported under RIDDOR at all. The incident happened in January 2017 and it was only in May 2017 that we got an enquiry from a spinal injuries solicitor asking us for the case detail about a hoist collapse at this address. We had to say we had no idea what they were talking about – we had no details, no record of anything going on there,” Andy said.
“However, we started to look into it. We contacted Nicholas, who was quite evasive, and we went to take a statement from Mariusz who was in a spinal rehabilitation unit. We had what Mariusz told us but we were struggling to get any other information.
“Nicholas had sold the building so we couldn’t get access to it. We tried to contact the new owner but he was not resident in the UK. All we had was an allegation but nothing really in the way of evidence. At best, it looked like all we had was non-reporting under RIDDOR, and even just to get that far took a lot of time.
“However, by pure chance, I was in the area around Seaforth doing another job and I thought I’d just go past the building while I was nearby. It was clear that something was going on in the building – there was a notice on the door and a phone number. I asked the HSE visiting officer who was working on the case with me – Bernadette Barrett – to follow that up and it turned out the new building owner had re-rented the whole building to two guys who had the recording studio where Mariusz had been working.”
Previous incidents
Gradually, the full story started to emerge.
“Both of these men were aware of Mariusz’s accident. They told Bernadette what they knew and they were both prepared to give statements. We agreed to meet them at the premises and that was when we had a ‘Eureka’ moment,” Andy said.
“One of them said to us, ‘So I suppose you will want to know about my accident as well?’ We were completely blank about that but he explained there had been a very similar previous incident at the same premises, using the same hoist, almost a year before on 25 January 2016. In that case, the men who had the recording studio had loaded up the hoist with soundproofing material. As the hoist went it up, something got caught. One of the guys stepped onto the platform to free the material. There was a bit of a noise and then the same thing happened – the hoist dropped to the ground floor.
“One man underneath managed to throw himself out of the away and just avoid getting squashed. The other guy who had stepped onto the hoist platform fell with it. He suffered a sprained ankle and broke his other heel bone. But that incident wasn’t reported under RIDDOR either.
“Had I not gone back past the building that day, there might not have been much in the way of action against Nicholas as what we had was ostensibly a single case of non-reporting under RIDDOR. However, with the new information, we were able to further question him,” said Andy.
The interviews
For this investigation, a range of HSE inspectors’ questioning powers were used.
“We can’t force anybody speak to us under a Police and Criminal Evidence Act [PACE] caution – the difference between our caution and a normal police caution is that a police caution has more teeth,” Andy said.
“A police caution will often start with ‘You are under arrest’; our caution starts with ‘You are not under arrest’. We invite suspects to come for an interview under caution, but they are quite within their rights and they will very often refuse that invitation. They may opt not to say anything – although it’s worth remembering that exercising the right to silence can also be used against you at a later date as well. Or they may opt to put written submissions via a solicitor.
“There is a power under the Health and Safety at Work Act – under section 20 (2) (j) – which says that as an inspector I can require somebody who I believe has information relevant to an investigation to answer questions, although the answers to those questions cannot be used against that person. That’s not very useful in terms of questioning a suspect, but it’s good for questioning a witness – particularly a witness who either doesn’t want to talk to you, has been instructed not to talk to you, or who is afraid of something. As it happened, we actually used a Section 20 statement in this very case where I compelled someone to answer my questions who had otherwise been reluctant to do so.
“We spoke to Nicholas a number of times, though that was under caution. And that was quite an experience. He was evasive and he didn’t tell us anything straight. Although he never denied Mariusz’s accident happened, he didn’t want to admit the first accident with the two men from the recording studio ever took place.
“We also asked him about maintenance and inspection of the hoist. Nicholas said that some work had been carried out on the hoist following the first accident, however that work seemingly wasn’t in response to the accident – it was to do with the electric control of the lift. We tried to investigate that alleged work, but the company that Nicholas said had carried out the work had no record of it. So we could neither confirm nor deny this work was ever done. In any case, there were certainly no thorough examination, no maintenance record and no inspections of the hoist.”
The sentencing
At Liverpool Crown Court, Nicholas Devine pleaded guilty to breaching section 2 (1) of the Health and Safety at Work Act. He was sentenced to 12 months’ imprisonment and ordered to pay costs of £10,000.
“The defendant is 78 years old, and the length of sentence he received might shock some people in that context, but it shows just how seriously the judge took the matter," noted Andy.
"In this case, for the purposes of the Sentencing Guidelines there was very high culpability and, in his summing, up, the judge talked about Nicholas’s flagrant disregard for health and safety, being motivated by saving money, trying to conceal the facts, and failure to report,” he added.
“In terms of the hoist system, our engineer’s report said: ‘In my opinion, the installation was not a lift or a builder’s hoist; it was a chain hoist attached to a partially-enclosed platform without any safeguards to prevent access by personnel when landing doors are open, or any safeguards to prevent uncontrolled descent. Furthermore, in my opinion, had a report of thorough examination been carried, this would have prevented it's further use.’
“Our engineer’s recommendation said: ‘In my opinion the installation was not suitable to support personnel when in a raised position and the installation as not suitable for use with a platform to serve different levels without significant modifications or in-line with a relevant standard.’
“Quite regardless of the failings of the hoist, there was also no method of work, no plan, and Mariusz was effectively left to his own devices. They could have physically segregate the lift shaft with a barrier to prevent him falling down the shaft. That’s one thing to learn from this case – the importance of good planning and good risk assessment. This could easily have been avoided.
"Then, of course, there’s the importance of having suitable plant and equipment in premises. So this is about premises owners having suitable plant that is fit for purpose and which is maintained, inspected and examined in an appropriate manner. Even if the hoist had been fit for purpose, it still wouldn’t have been inspected and so the risk would have still been there.”
In 2020, Europe's biggest regional airline, Flybe, was fined £100,000 after an airport worker fell into a lift shaft. Get the full story here.
