Exhausted welders killed in van crash land employer in court

 

A contractor has been ordered to pay £750,000 in fines and costs for failing to ensure two of its workers were sufficiently rested to work and travel safely after they were killed in a crash on the A1 near Newark.

Zac Payne, 20, and Michael Morris, 48, died on 19 June 2013 when Zac fell asleep at the wheel of his work van while driving back to Doncaster after a night shift in Stevenage. His employer, Renown Consultants Ltd, had instructed the men to take on an extra job following a request from Network Rail without considering whether it had sufficiently rested employees.

Nottingham Crown Court was told that 20-year-old Zac, and Michael, 48, died on 19 June 2013 when Zac fell asleep at the wheel of the work van and came off the motorway, crashing into a parked van, while driving back to Doncaster after a night shift in Stevenage. He had been awake for around 26 hours.

The previous day Zac had left Doncaster at 4.30am and driven to Alnmouth, Northumberland, arriving at 7.30am to carry out work on the railway. The expected work did not take place, so after waiting until midday Zac started the drive back to Renown’s Doncaster depot, arriving at 3pm.

On his way to the depot he was asked to take on an overnight railway welding job in Stevenage and, in company with Michael, they set off from the depot at 7.18pm arriving at the site at 9.47pm.

The two men then undertook welding jobs from 11.15pm leaving the site once they had finished at 3.40am. The crash occurred at around 5.30am as Zac was driving back to Doncaster.

Nottingham Crown Court was told Zac, who like his colleague was employed on a zero-hours contract, was suffering the effects of fatigue and may have fallen asleep at the wheel or experienced ‘microsleeps,’ which hugely increased the risk of a traffic accident.

‘OPERATIONS AND MANAGERS KNEW WHAT THEY WERE SUPPOSED TO DO IN RELATION TO FATIGUE BUT LIP SERVICE WAS PAID TO THESE SYSTEMS‘

The court was told that Network Rail had asked Renown for an additional welding team for the Stevenage job at 7.30am on 18 June and Renown had accepted the job before considering if it had sufficient well-rested employees and before speaking to Zac

Renown did not follow its own fatigue management procedures, nor did it comply with the working time limits for safety critical work, such as welding, which insist there should be a ‘minimum rest period of 12 hours between booking off from a turn of duty to booking on for the next’, and it did not conduct a sufficient and suitable risk assessment of Zac’s fatigue.

He was also permitted to drive, despite the company’s insurance policy that stipulated only over 25s may drive their vehicles, and heard evidence from other members of staff that the policy was routinely flouted.

The Office of Rail and Road’s (ORR) investigation found that Renown’s policies and procedures were particularly inadequate because employees were on zero hours contracts, and these contracts created an obvious incentive for employees to volunteer for work when they were too tired as they were only paid for the shifts they worked. This was made worse as Mr Payne, and other trainee welders, were reliant on Renown for securing the qualifications they needed to qualify as welders, which discouraged them for refusing shifts.

This is the first time that ORR has brought a prosecution in relation to failures of fatigue management.

In March, Renown Consultants was found guilty of failing to discharge its duty under sections 2 and 3 of the Health and Safety at Work Act and regulation 3 of the Management of Health and Safety at Work Regulations and was therefore guilty of an offence contrary to Section 33 of the Act.

‘THE PAPERWORK WAS ADEQUATE, IT WAS THE IMPLEMENTATION THAT WAS THE PROBLEM’

Earlier this week (Wednesday 13 May), the firm was ordered to £150,000 for each of the three breaches, plus £300,000 in costs. The sentence was passed virtually by Judge Nigel Graham Godsmark sitting at Nottingham Crown Court.

In summing up, the judge said Renown’s gravest failing was to perform a suitable and sufficient risk assessment on the day before the fatalities, which led to the company failing to comply with its own fatigue management procedures, nor did it comply with the working time limits for safety critical work, such as welding and trackside work, which insist there should be a ‘minimum rest period of 12 hours between booking off from a turn of duty to booking on for the next.

‘Operations and managers knew what they were supposed to do in relation to fatigue but lip service was paid to these systems,’ he added. ‘Senior operations cut corners and I found blindness at Doncaster in relation to people driving to and from jobs.

‘This failure to take seriously was reflected in [Renown’s] attitude and wilful failure of its no under 25 policy. In regard to those breaches to fatigue falling far short…I consider this a serious and systemic failure by Renown.’

Referring to the Sentencing Guideline, HHJ Godsmark indicated that he considered the culpability to be high in that there was ‘a wilful failure to enforce the no under 25 driving policy, and the company’s fatigue management fell far short of the appropriate standard and were allowed to occur over a period of time’.

He went on to state that the likelihood of death or serious injury arising from the risk was also high: ‘A sleepy driver on a long drive home puts himself at serious risk. I cannot move up the harm category so I must consider the starting point.’

The court was told the firm’s turnover was in the £2-£10m category, so is therefore a small business, and the starting point would be £250,000. However, as two men died and the public were put at risk, he set the starting point at £500,000.

He outlined mitigating factors; Renown changed its policy immediately after the accident, and had a good health and safety record with no previous convictions, and so reduced the fine to £450,000.

He said the firm’s turnover was £6m last year, and so the fine was reasonable, even when taking into account what he called ‘the COVID factor’.

‘The suggestion is that turnover has reduced by some 27% since the pandemic began. However I am not persuaded that this is permanent. Railway workers are key workers. Industry is finding ways to work with the restrictions.The fine is appropriate.’

He gave the firm two and a half years to pay the penalty.

Ian Prosser, chief inspector of railways, said the case shows the fatal consequences that can occur when fatigue policies are disregarded.

‘We hope this has acted as a reminder to companies that safety comes first and fatigue policies should be enforced to ensure their workforce is not too tired to work,’ he said.