Submitted: 20 December 2022

 Energy Division
Mike Tetley
HM Acting Principal Inspector
ED Unit 2 Quarries
Health and Safety Executive
Merton Road
L20 7HS
Tel: 0203 028 4107
Line Manager
Paul Bradley



Court ref: INV-B122-22







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.

  1. 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. Once the operator is seated, inadvertent operation of controls is not considered by the international standards community to be likely to create a relevant hazard through intended use or foreseeable misuse, that would need to be addressed through design. There is therefore no need for safety design requirements to address this nor any possible need to address manufacturers residual risks through the inclusion of warnings in the operators instructions.

    16. Manufacturers of earth moving machinery placed on the market in GB have a duty to comply with supply legislation relevant to their product. For earth moving equipment this is currently the EU Machinery Directive and the GB supply of Machinery Safety Regulations. Compliance with the aforementioned standards would be used to demonstrate conformance with the relevant supply legislation. There is no gap identified between what the relevant standards for the supply of earth moving machinery require and what has been provided, in relation to the requirement to include warnings of residual risks in the information provide to users. There is therefore no indication of a breach of supply law in relation to the provision of information regarding the inadvertent operation of the controls while seated.

    17. The Product Safety and Market Surveillance Unit (PSMSU) within HSE have been consulted over this matter, as Directed by the Sherriff. PSMSU’s Principal Inspector for the Regulatory team has reviewed the above opinion and considered whether it is necessary to raise the “use of the safety control lever (…) in operator manuals for excavators”, with the manufacturers of excavators. Given that the specialist opinion does not indicate any deficiencies in relation to the provision of information, when compared to the internationally agreed standard, this matter will not be taken forward by PSMSU.

    18. 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.

    19. The above completes our submissions on these matters.


    Yours Faithfully

    Mike Tetley
    Acting HM Principal Inspector of Quarries