Tortolano v Ogilvie Construction Ltd – [mobile working platform, fall] #damages #discount



[1] The pursuer in this action was born on 19 June 1989. On 21 November 2008 he was working in the course of his employment with the defenders as an apprentice plumber. He avers that on that date he suffered very serious injury as a result of an accident when the mobile working platform on which he was located toppled over causing him to fall a distance of about 4 metres. He blames the defenders for this accident and sues for damages in respect of common law negligence and breach of statutory duty. The heads of damage include continuing loss of earnings and the cost of future care and support. An eight day diet of proof has been fixed for 21 November 2012 and the subsequent days.

[2] The defenders propose to amend. Their minute of amendment was received by the court on 6 July 2012. The pursuer has taken advantage of the amendment process by, in his answers, increasing the sum sued for to £5,000,000 and including averments directed at the question of what is the appropriate discount rate to be adopted in determining the multipliers for the calculation of future losses and costs. The defenders now move to amend in terms of their minute of amendment and the pursuer’s answers but under deletion from the pursuer’s answers of the averments directed at the appropriate discount rate. Broadly the defenders objections are twofold: (1) the impugned averments come too late to allow the defenders to have any confidence in being able properly to meet them at a diet of proof fixed for 21 November 2012 which, at eight days, would probably be inadequate to accommodate this additional issue; and (2) they are in any event irrelevant.

[3] The pursuer seeks to insist on the inclusion of the impugned averments in the pleadings.


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Health and Safety Authority – Company fined for accident that resulted in death of 3 year old child


A fine of €25,000 was imposed on Patrick Monahan (Drogheda) Ltd today (Friday 12th October) by Judge Michael O’Shea in the Dundalk Circuit Court.

The Company, Patrick Monahan (Drogheda) Ltd, pleaded guilty to a breach of Section 12 of the Safety, Health and Welfare at Work Act No 10 of 2005, as it relates to Section 77(9)(a).

The case arose as the result of an accident that caused the death of a 3 year old child, Desmond Dyas Junior, on Drogheda Town Quay.

Mr Desmond Dyas and his son Desmond junior were on the Drogheda town quay on the 10th November 2009, in an area of the port leased from the Drogheda Port Company to Patrick Monahan (Drogheda) Ltd. Around this time, a machine driver employed by Patrick Monahan (Drogheda) Ltd, commenced loading 22 metre long timber fir poles onto an articulated trailer by lifting them from a stack. This caused one of the poles, in an adjacent stack, to shift and roll forward from its storage location crushing Desmond Dyas Junior.

After sentencing, Martin O’Halloran, Chief Executive of the Health and Safety Authority said, “This type of tragic accident can only be avoided if employers pay particular attention to the risk of members of the public interacting with the workplace. Where members of the public have access to a workplace, robust procedures should be in place to ensure that no work takes place until the people have moved clear and the hazard is removed.”

via Health and Safety Authority – Company fined for accident that resulted in death of 3 year old child.

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Company fined after unstable lorry topples over and injures worker


A worker unloading scaffold materials from a flatbed lorry was thrown from the vehicle and hit by its load of boards and tubes when it overturned a court was told today (12 October).

The overturned lorry after the incident

Martin Sapec, 54, of Edwardsville, Treharris suffered a broken pelvis and ankle in the incident at Bryntirion, Mountain Ash, on 15 August 2011.

Pontypridd Magistrates heard that Mr Sapec was helping delivery driver Wayne Ford to unload the scaffolding material while standing on the back of the lorry. The vehicle was fitted with a crane operated by Mr Ford, who failed to extend a stabilising outrigger from the vehicle designed to provide balance while the crane is in operation.

Because the crane was used without the extended outrigger, the lorry became unstable and tipped over, throwing Mr Sapec off. As he landed, some of the scaffold boards and tubes from the lorry fell on top of him.

Mr Sapec has been unable to work since the incident because of his injuries.

An investigation by the Health and Safety Executive (HSE) found Wayne Ford was responsible for the lorry, and was at fault for not using the crane and extending outrigger in the correct, safe manner.

The overturned lorry after the incident

Mr Ford, of Shingrig Road, Nelson, pleaded guilty to breaching Section 7(a) of the Health and Safety at Work Act 1974. He was fined £1,000 and ordered to pay £1,000 in costs.

via Company fined after unstable lorry topples over and injures worker.

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Somerset firm fined after worker crushed under bales


A worker had his lower body crushed when a stack of bales, each weighting a quarter of a tonne, collapsed on him as he sorted waste in a processing shed in Somerset.

The collapsed stack of bales at the Cannington Enterprises Ltd site

Aleksandras Fomenkouas, 40, who lived in Bridgwater at the time, suffered serious injuries in the incident on 8 September 2011 while working at the recycling and processing yard of Cannington Enterprises Ltd.

Taunton Magistrates heard today (12 October) that the Health and Safety Executive (HSE) investigated and brought a prosecution against Cannington Enterprises Ltd for its failure to ensure his safety.

The court was told that Mr Fomenkouas was sorting plastic waste in the yard for use in the company’s anaerobic digester, while another employee nearby was moving plastic carton bales with a forklift truck. Shortly after a bale was removed, the stack became unstable and collapsed on top of Mr Fomenkouas, knocking him to the ground and crushing the lower half of his body.

Cannington Enterprises Ltd of Swang Farm, Cannington, Bridgwater pleaded guilty to a breach of Section 2(1) of the Health and Safety at Work Act 1974 and was fined £7,000 and ordered to pay costs of £7,614.

via Somerset firm fined after worker crushed under bales.

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Leighton Packaging Ltd in court over crush injuries – guards on the machine were inadequate


A Leigh cardboard box manufacturer has appeared in court after one of its employees almost lost his right arm when it became trapped in a machine.

The 26-year-old from Leigh, who has asked not to be named, was trying to retrieve a piece of card to clear a blockage when his arm was dragged under a roller, causing severe crush injuries.

His employer, Leighton Packaging Ltd, was prosecuted by the Health and Safety Executive (HSE) following the incident at the factory, at Leigh Commerce Park on Greenfold Way, on 7 October last year.

Trafford Magistrates’ Court was told today (12 October) that doctors feared the employee could have lost his arm due to the extent of his injuries. He still has difficulty using his arm, and the injury is likely to affect him for the rest of his life.

A HSE investigation found the guards on the machine were inadequate and that employees regularly removed blockages without power first being cut.

The company failed to have a suitable system of work in place for the removal of blockages, and there was little supervision of how workers dealt with jams.

Leighton Packaging admitted breaching the Management of Health and Safety Regulations 1999 and the Provision and Use of Work Equipment Regulations 1998. It was fined £3,000 and ordered to pay £2,717 in prosecution costs.

via RNN media

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Worker died when he was crushed by a one and a half tonne steel girder. “John Mott’s death was a preventable tragedy”


A South Yorkshire firm has been ordered to pay more than £142,000 in fines and costs for serious safety breaches after a worker died when he was crushed by a one and a half tonne steel girder.

Steelworker John Mott, 47, who had worked in the steel industry since leaving school, received fatal injuries in the incident at the Bespoke Precast plant in Whaley Road, Barnsley, on 30 March 2009.

Sheffield Crown Court heard Mr Mott was moving an overhead travelling crane from an area of the factory where it had been supporting the eight and a half metre long girder.

The court was told that as he did this, a clamp attached to the crane hook snagged on the girder causing it to topple and fall, crushing Mr Mott against the floor.

A Health and Safety Executive (HSE) investigation showed the overhead travelling crane used to support steel girders during fabrication work was frequently needed elsewhere in the factory to carry out heavy lifting operations. It was common practice, therefore, for workers to move the crane to other areas.

Bespoke Precast Ltd, registered at Bardon Hall, Copt Oak Road, Markfield, Leicestershire, was fined £100,000 and ordered to pay £42,471 costs after pleading guilty breaching the Health and Safety at Work etc Act 1974. The firm no longer operates from the Whaley Road site in Barnsley.

After the hearing, HSE Inspector Alison Crank said:

“John Mott’s death was a preventable tragedy and his wife and family continue to struggle to come to terms with their loss.

“The crane was frequently needed elsewhere in the factory to move steelwork around and we believe Mr Mott wanted to use it to move some of his own welding work. As he was moving the crane, a beam clamp used to attach girders to the crane, snagged and caused this horrific incident.

“Working with steel of this size and weight in particular can be dangerous if precautions are not taken to maintain stability and workers are not kept out of danger zones. As this case shows, the risks increase significantly when lifting equipment is in use in the area.

“A suitable risk assessment would have identified the measures that could have been taken to prevent the girder becoming unstable and falling off the support bench. The crane or any other lifting equipment could then have been moved safely.”


via RNN media information

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69 sites were inspected – 14 Prohibition Notices served


14 Prohibition Notices served

Dozens of Construction sites across the North East have been put under the spotlight as part of an intensive inspection regime by the Health and Safety Executive.

A total of 69 sites were inspected across the North East during the first three weeks of September and while the majority were found to be managing health and safety appropriately, work was stopped immediately on several sites. A total of 14 Prohibition Notices were served because the proper precautions were not in place for working at height.

The targeted campaign was in response to the continued loss of life and serious injury arising from falls from height. In the 12 months to April 2012, 49 workers lost their lives on construction sites in the UK, with falls from height being the most common cause of fatal injuries.

HSE Principal Inspector Robert Hirst said:

“Whilst the initiative was primarily to raise awareness of the problem of unsafe working practices, it is of serious concern that such a significant proportion of sites visited were undertaking work at height in a dangerous manner.

“Straightforward practical precautions are well known in the industry. Safe access equipment is readily available for purchase or hire and there is no excuse for workers, and the self employed, to put themselves in a position of danger when working at height.

“HSE will continue to maintain a strong enforcement profile where there is blatant disregard to safe working practice.”

via RNN media

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Hospitals worst for unnecessary fire call outs – London Fire Brigade –


Hospitals in London are the biggest culprits when it comes to calling firefighters to false alarms, according to the London Fire Brigade’s top 10 list released today.

The top ten, all hospitals, accounted for 1,189 false alarm calls to the Brigade last year, more than three a day.

The nine worst each had more than 100 unnecessary call outs last year. Number one on the list is St. Georges Hospital and its surrounding buildings in Tooting which had 169 false alarms last year, around one every other day.

The other nine hospital sites and the number of false call outs last year are:

• Kings College Hospital, Denmark Hill – 163

• Chase Farm Hospital, Enfield – 161

• Ealing Hospital, Uxbridge Road – 159

• Hillingdon Hospital, Hillingdon – 143

• Queen’s Hospital, Romford – 131

• Guy’s and St.Thomas’ Hospital, Lambeth – 126

• Homerton Hospital, Homerton Row – 112

• Royal London Hospital, Whitechapel – 100

• Royal Free Hospital, Hampstead – 94

Despite a reduction of 23 per cent in the last five years, a fire engine is still called to a false alarm every 12 minutes in the capital, costing an estimated £34 million each year. As well as being costly for London, false alarms are a nationwide problem, with the Government estimating that they cost the UK around £1 billion a year.

Over a third of all emergency calls are to false alarms, with 40,839 attended last year. Of these over 27,000 call outs are to commercial or public buildings and mainly due to faulty or badly maintained automatic alarm systems. These unnecessary calls impact on the Brigade’s ability to attend real incidents, deliver training and carry out vital community safety work.

Fire alarms act as a vital early warning system, helping keep people safe by alerting them to fires and giving them more time to escape. But, the majority of false alarms caused by faulty or badly maintained automatic fire alarm systems or things like burnt toast, steam or cigarette smoke.

James Cleverly, Chairman of London Fire and Emergency Planning Authority, said:

“Every penny of taxpayers’ money is precious, especially in the current economic climate. We can’t keep sending our crews out to non existent fires, particularly when a little extra care and attention from the owners or managers of buildings could solve this problem.

“This is about the Brigade being able to do the job people expect it to – attend real emergencies. The management of these alarm systems must improve so that our crews are not sent to needless call outs.”

The Brigade continues to work closely with organisations across the capital, such as hospitals, universities, hotels and airports, in a bid to reduce the number of false alarms it responds to. In 2009, the Brigade introduced call filtering to help reduce the number of unwanted call outs. Between 6am and 9pm control officers ask the caller why the alarm is sounding. If the caller confirms that it is not because of a fire then no fire engines are sent.

One organisation that has taken great strides to improve the number of false fire alarms London’s fire crews are called out to is King’s College London. Staff from the University worked closely with the Brigade to reduce false alarms by 44 per cent between 2007 and 2011.

via London Fire Brigade – Hospitals worst for unnecessary fire call outs.

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Contractors, sub contractors and sub sub contractor failings #asbestos – £28,000 and ordered to pay £22,631 in costs


A Wokingham business has been fined for safety failings after two subcontractors were unwittingly exposed to asbestos fibres at Reading University.

Gardner Mechanical Services Ltd had been contracted to undertake a mechanical services upgrade in a room at the university. They subcontracted the project to a Newbury-based company, who in turn subcontracted two self-employed men, Andrew Lloyd and Steve Taylor, to do the work.

Reading Magistrates court heard today (8 October) that on 2 September 2009 the two men drilled through a sprayed asbestos ceiling coating. They had not been made aware that asbestos was in the room and thought all asbestos material had been removed by specialist contractors prior to their work starting.

An investigation by the Health and Safety Executive (HSE) found that as the principal contractor Gardner Mechanical Services was aware that some asbestos-containing materials were to be left on the site. However, they failed to relay this information to the subcontractors in a reliable way.

The company also failed to ensure the asbestos was removed from the site before work started.

Gardner Mechanical Services Ltd, of Grovelands Avenue Workshops, Winnersh, Wokingham, pleaded guilty to breaching Regulation 11(1) of the Control of Asbestos Regulations 2006 and Regulation 23(1)(a) of the Construction (Design and Management) Regulations 2007. The firm was fined a total of £28,000 and ordered to pay £22,631 in costs.

After the hearing HSE inspector Adam Wycherley said:

“This case highlights the importance of effective planning when addressing risks in construction, particularly in refurbishment, where there is a higher risk of coming into contact with asbestos.

“Gardner Mechanical Services had a clear duty of care to relay important information to its subcontractors in order to prevent their exposure to asbestos, but this simply did not happen.

“As a result of poor planning on the part of GMS, two men were exposed to high levels of asbestos fibres, leaving them at risk of contracting serious diseases such as lung cancer, mesothelioma and asbestosis of the lungs.”

Information on working safely with asbestos can be found on the HSE website at

via RNN media information for journalists and the press – Press Releases – Contractors failed to alert workers to presence of asbestos – Regional News Network.

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Johnson Controls Ltd prosecuted after worker run over by a cherry picker and loses leg


A building maintenance firm has been sentenced after one of its employees lost a leg when he was run over by a cherry picker at a nuclear site in Cumbria.

Ken Brown was escorting the vehicle on foot when it struck him at the Windscale site in Seascale on 5 May 2011.

His employer, Johnson Controls Ltd, was prosecuted by the Health and Safety Executive (HSE) after an investigation found there had not been a safe system of work for the task, and relevant training had not been provided.

Carlisle Crown Court heard the 62-year-old from Distington had been standing close to the front of the cherry picker to direct it along a one-way road at the site when it ran over his left leg. Mr Brown was taken to hospital where doctors had to amputate his leg above the knee.

The HSE investigation found that Mr Brown and other staff at Johnson Controls had escorted cherry pickers on foot several times a month, for at least 14 months, prior to him being injured.

The only advice the company gave to its employees when directing cherry pickers was to wear a high visibility waistcoat. No specific training was provided for the task.

Johnson Controls Ltd, part of a global organisation which employs more than 160,000 people, pleaded guilty to breaching Section 2(1) of the Health and Safety at Work etc Act 1974 by failing to ensure the safety of employees.

The company, of Waterberry Drive, Waterlooville, Hampshire, was fined £65,000 and ordered to pay £8,162 in prosecution costs on 8 October 2012.

Speaking after the hearing, the investigating inspector at HSE, Faye Wingfield, said:

“Kenneth Brown has suffered a terrible injury that will affect him for the rest of his life due to failings of his employer. Vehicles continue to be a major cause of serious injuries in the workplace, and the first principle of any employer should be to keep people and vehicles apart.

“It is questionable whether Johnson Controls actually needed a member of staff on foot to direct the cherry picker, given that it was travelling forwards along a road in a one-way system.

“But if the risk assessment decided someone was needed to escort the vehicle then a safe system of work needed to be devised. Employees should also have been given appropriate training, including how to communicate effectively with the driver.”

Information on how to prevent injuries involving workplace vehicles is available at

via RNN media information for journalists and the press – Press Releases – Firm prosecuted after worker loses leg at nuclear site – Regional News Network.

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