SHERIFFDOM OF GRAMPIAN, HIGHLAND AND ISLANDS AT INVERNESS

Court ref: INV-B122-22

RESPONSE to the

DETERMINATION OF SHERIFF GARRY AITKEN

UNDER THE INQUIRIES INTO FATAL ACCIDENTS AND SUDDEN DEATHS

ETC. (SCOTLAND) ACT 2016

IN THE

INQUIRY INTO THE DEATH OF MR PAWEL KOCIK

To: The Scottish Courts and Tribunals Service

1. I Michael John Tetley, Acting HM Principal Inspector of Quarries of the Health and Safety Executive (HSE), being a person to whom a recommendation under section 26(1)(b) was addressed, do respond as follows.
2. I was a participant in the inquiry.
3. At page 4 of the Determination, his Lordship made the following two recommendations under Section 26(1)(b) of the 2016 Act:

It is recommended that the Health and Safety Executive consider issuing a Safety Bulletin Alert to the quarrying and extractive industry to further raise awareness of the correct use of the safety control lever fitted to excavators, especially when using excavators in lifting operations. It is further recommended that the Product Safety Team of the Health and Safety Executive consider raising with the manufacturers of excavators the issue of how the use of the safety control lever is addressed in operator manuals for excavators.

4. Regarding the first recommendation, to the issuing of a Safety Bulletin Alert to the quarrying and extractive industry to further raise awareness of the correct use of the safety control lever fitted to excavators, especially when using excavators in lifting operations, this matter has been considered by HSE and is being taken forward.
5. A Safety Bulletin is currently being drafted to raise awareness of and highlight the importance of risk assessments, operator training and in particular the correct use of the safety control lever for lifting operations with excavators.
6. The expected publication date for the safety alert is by the end of March 2023, for the alert to be properly drafted, considered and for due process for the publication of documents to be applied.
7. The safety alert will be published on the HSE website and also take the form on an electronic bulletin (e-bulletin), which is automatically distributed to those who have signed up to receive bulletins relating to relevant industry sectors, such as quarries and construction in this case.
8. Safety Alerts are also communicated to our media team who communicate with the relevant trade press who can and do publicise the existence of an alert.
9. Regarding the second recommendation, for the Product Safety Team of the Health and Safety Executive to consider raising with the manufacturers of excavators the issue of how the use of the safety control lever is addressed in operator manuals for excavators, HSE are not proposing to progress this matter with manufacturers.
10. In consultation with the Product Safety and Market Surveillance Unit (PSMSU), referred to in the Inquiry and this Determination as the Product Safety Team, along with the portfolio holder for construction plant and having given this matter due thought and consideration, it is HSE’s considered opinion that the machine followed both European and international standards for the plant and documentation. Also, the primary issues related more to risk assessment, training and safe systems of work, than the operator’s manual. Thereby, a safety alert is the more effective and appropriate mechanism to achieve the desired outcome of the management of risk.
11. The safety standard for earth moving machinery, such as excavators - EN 474, deals with all the relevant significant hazards, hazardous situations and events, when the subject machines are used as intended and under conditions of misuse that are reasonably foreseeable by the manufacturer. Compliance with the requirements stated in this standard would be one means of a manufacturer demonstrating conformance with EU and national supply regulations.
12. The control enabling lever is a design feature universally used by manufacturers of excavators to fully comply with requirements specified in the safety standard to address the risk of inadvertent activation of controls when the operator is entering and exiting the cab.
13. The general layout and content of the operators manual for all types of earth moving machinery is defined in the global standard ISO 6750-1. In addition to providing information on the machine specification and operation, this standard requires manufacturers to include warnings of “residual risks” in their operating instructions. These would be risks that have not been fully covered through the design solution used by a manufacturer to meet the specified safety requirements.
14. When used as intended, the control enabling lever fully meets the design requirement, so there is no residual risk for the manufacture to warn against in their operating manual.
15. In addition to the above outcomes, it is HSE’s intention to continue to communicate the relevant health and safety matters arising from this tragic accident at strategic interventions with the quarry industry. Since the publication of the Determination, I have been in contact with Lieths (Scotland) Ltd, who have engaged with and support this proposal.
16. The above completes our submissions on these matters.

Yours Faithfully

Mike Tetley
Acting HM Principal Inspector of Quarries