Industrial Safety Engineer Examines Employer Liability in Workplace Injury

During 2012, a client engineering company engaged my services as an industrial safety engineer after an accident had occurred in their factory whereby one of the machine operators had lost one finger due to contact with a high speed revolving blade on the machine that he was using to cut rolls of lead into sections. A second finger had been partially severed but was subsequently reattached by surgery. The machine was a large fixed device and the operator had reached into the product path to clear a jam.

The UK Enforcing Authority (Health and Safety Executive) had arrived on site with a copy of the accident report and without interviewing anyone or seeing the site of the accident said that they were going to pursue a criminal prosecution under The Provision and Use of Work Equipment Regulations 1996 (PUWER), regulation 11 (dealing with the requirement to adequately guard moving machinery). The logic was that since contact with moving part had been made, the guarding arrangements could not have been adequate.

My client had engaged a defense attorney who, on the instructions of my client’s insurance company, advised a guilty plea in order to take advantage of the one third discount on the sentence when an early guilty plea is entered, (this discount being mandatory in the English Courts). The insurance company declined to fund a not guilty plea.

After inspecting the site of the accident and interviewing the victim, supervisor and witnesses and operator training records, I was able to advise my client that in their haste, the HSE had preferred the wrong charge.

The requirement for effective guarding refers to a machine that is being “used” and the intention is to prevent contact with moving parts. In this case, the machine had jammed. Therefore, it could not be used until the jammed product had been cleared and this action is a maintenance activity. In attempting to clear the jam, the operator was therefore undertaking maintenance.

Machines cannot be adequately guarded when being maintained. Adequate guarding would prevent the maintainer from touching the parts of the machine that he was maintaining. The legal requirement therefore is to isolate the machine before maintenance is commenced. Isolation is a special process, again described by UK law.

Isolation is the process of removing the motive power from a machine (which is usually electrical power) in a secure way by locking the isolation switch in the off position and lodging the only key with the maintainer. The process is usually undertaken in accordance with a formal written “Permit to Work”. In this way, no one can restart the machine except the maintainer at the end of his maintenance work. This accident occurred because the operator (the victim) had not isolated the machine and an internal circular saw blade was still running. The victim admitted that he forgot to isolate although he had undertaken isolation when un-jamming this machine many times before.

The requirement to isolate for maintenance purposes is addressed by PUWER regulation 16. Any prosecution should have cited this section of the law. In this case, the employer had a defense against a regulation 16 charge since the operator had been trained to isolate, training was certificated and suitable locks were available at the workplace.

I believe that this case illustrates the requirement for a detailed knowledge of machinery in addition to awareness of the relevant legislation when involved in either the defense or prosecution of case. It should not automatically be assumed that because an injury occurred, the employer must have been at fault.