Scottish Sheriff Court Decisions

SHERIFFDOM OF GRAMPIAN, HIGHLANDS AND ISLANDS AT FORT WILLIAM

 

UNDER THE FATAL ACCIDENTS AND SUDDEN DEATHS INQUIRY (SCOTLAND) ACT 1976 SECTION 6

 

 

DETERMINATION

 

of

 

Sheriff Paul V Crozier

 

in

 

FATAL ACCIDENT INQUIRY

 

Into the circumstances of the death of

 

ALEXANDER STEWART

 

FORT WILLIAM 10 NOVEMBER 2010

The Sheriff having resumed consideration of the evidence, makes the following findings:-

 

(1)   In terms of Section 6(1)(a) of the Fatal Accidents and Sudden Death Inquiries (Scotland) Act 1976 (the Act), that Alexander Stewart, whose date of birth was 2^nd November 1937, laterally residing at 10 Glen Nevis Road, Caol, Fort William, died at 13.19 hours on 1^st August 2008 within Belford Hospital, Fort William.

(2)   In terms of Section 6(1)(b) of the Act, that the cause of death was: (a) traumatic disruption of the liver; and (b) compression injury by a mechanical shovel; said injuries having been suffered by him in the course of his employment with Lorne Developments Limited trading as Lochaber Aggregates, Ben Nevis Industrial Estate, Fort William.

(3)   In terms of Section 6(1)(c) of the Act , that the reasonable precautions whereby the death might have been avoided were:

(a)    That the bucket/loading shovel of the vehicle known as a Leibherr L538 (the L538) should not have been used for lifting personnel.

(b)   That the operator of the L538 should not have leaned out the right hand side door of the vehicle.

(c)    That the operator having decided to lean out of the right hand side door of the L538, should have used the hydraulic lock switch in the cab of the L538 thus preventing any non intentional movement of the hydraulic arm and bucket/loading shovel of the L538.

(d)   That theL538 should not have been in use without a working parking brake.

(e)    That the vehicle known as a JCB JS 130 (the JS 130) should not have been used to lift the screening plant.

(f)That Alexander Stewart ought not to have been on top of the screening plant.

 

(4)   In terms of Section 6(1)(d) of the Act that the defects in systems of working which contributed to the death or any accident resulting in the death were as follows: (a) The JS 130 should not have been used to lift the screening plant. It was not intended for lifting operations. It did not have an overload warning device or check valves fitted. (b) A proper assessment of the weight of the screening plant to be lifted and the load capabilities of the JS 130 should have been carried out. (c) Had such an assessment been carried out it would have been ascertained that an excavator intended for and suitable for this type of lifting operation or a mobile crane should have been used. (d) A ladder or mobile elevated work platform should have been used to gain access to the top of the screening plant.

(5)   In terms of Section 6(1)(e) of the Act there are no other factors which are relevant to the circumstances of the death.

 

 

 

......................................Sheriff

 

 

 

NOTE

 

A Fatal Accident Inquiry into the death of Alexander Stewart (born 2^nd November 1937), who resided at 10 Glen Nevis Road, Caol, Fort William, was held at the Sheriff Court at Fort William on the 21^st and 22^nd of October 2010. The Crown was represented by Geoff Main, Procurator Fiscal Depute at Fort William. Mr A. Forsyth Solicitor , appeared for Lorne Developments Limited trading as Lochaber Aggregates (the company). There was no other representation at the Inquiry. Evidence was led from Colin MacKenzie, William MacKenzie, Karen-Anne Wilson and Doctor W S Arnold by Mr Main procurator fiscal depute. A Joint Minute of Agreement was also admitted in evidence. The company, represented by Mr Forsyth solicitor, chose to rely on the witnesses called by the Crown.

 

Colin MacKenzie and William MacKenzie both gave evidence that ColinMacKenzie had been the operator of the L538, at the premises of the company at the Ben Nevis Industrial Estate, Fort William on the 1^st of August 2008 and that William MacKenzie had been in charge of operations at the site that day. William MacKenzie is a director of the company and is also the father of Colin Mackenzie , who is an employee of the company. William and Colin MacKenzie also gave evidence that Alexander (also known as Alistair) Stewart had been working at the site that day and that Alexander Stewart had been the operator of the JS 130. All three had a great deal of experience in working with plant such as the L538 and JS 130.

 

William MacKenzie had made the decision to remove a piece of screening plant from the yard at the Ben Nevis Industrial Estate by attaching 4 chains to it at each corner of the top box of the screening plant and by thereafter attaching those chains to the end of the hydraulic arm of the JS 130 whereby the top box of the screening plant could be lifted by using the JS 130. An initial attempt to do this was unsuccessful and he decided to go on top of the screening plant to check on matters. Alexander Stewart decided to join him. William MacKenzie told Alexander Stewart on two occasions not to join him but ultimately relented and they were both raised to the top of the plant in the shovel/ bucket of the L 538. The chains that were attached to the screening plant were still taut and William MacKenzie shouted to Colin MacKenzie to leave his vehicle, the L 538, and go to the other vehicle, the JS 130, so that the tension on the chains might be lessened. There was clearly some problem with the communication between William MacKenzie and Colin MacKenzie . Colin MacKenzie gave evidence that he was unable to hear his father's instructions properly. Colin MacKenzie did not think that it was safe to leave his vehicle; he was not convinced that the parking brake on the L538 would hold if applied because the vehicle was on a slope; in any event evidence was led that the parking brake had been completely removed from the L 538. The plan was now to remove 2 of the chains and use the bucket/ shovel on the L 538 to assist in the removal of the top box of the screening plant. Unknown to Colin MacKenzie, Alexander Stewart had jumped from the bucket onto the plant. The L 538 has 2 doors. The right hand door is for emergency use only. The joystick which operates the hydraulic arm of the L 538 is situated at the right hand side of the cab. Colin MacKenzie leaned out the right side of the cab so that he could hear the directions being given to him by his father and in so doing his jacket caught on the joystick; ColinMacKenzie had not applied the hydraulic lock prior to leaning out of his vehicle and the hydraulic arm of the vehicle moved and the bucket/loading shovel on the end of it tilted forward. At the same time, Alexander Stewart was in the process of stepping back into the bucket from the top of the screening plant and was tipped against the plant and caught between the bucket and the plant. As soon as Colin MacKenzie realised this he reversed his vehicle and Alexander Stewart slid to the ground. The emergency services were called and Alexander Stewart was taken to the accident and emergency department of Belford Hospital at Fort William. He had evidence of a crush injury across his upper chest, he did not respond to resuscitation treatment and was pronounced life extinct at 1319 hours on 1^st August 2008. According to the post mortem report the cause of death was (a) traumatic disruption of the liver (b) compression injury by a mechanical shovel.

 

Evidence was given by Karen-Anne Wilson, a health and safety inspector with the Health and Safety executive, and Doctor William Stewart Arnold a principal health and safety inspector with the Health and Safety Executive, who has specialised experience in accidents where some sort of mechanical engineering element is present. Both were in agreement that the L 538 should not have been used to lift William MacKenzie and Alexander Stewart onto the screening plant, a ladder or mobile elevated work platform should have been used to access the top of the plant; that Colin MacKenzie should not have leaned out of the right hand side of his cab; that Colin MacKenzie should have applied the hydraulic lock switch in the cab; that the L 538 should not have been used without a working parking brake; that the JS 130 should not have been used to lift the screening plant as it was not intended for such operations and that more detailed information should have been obtained regarding the weight of the screening plant and the maximum lifting capability of the JS 130 prior to the operation taking place, a crane would have been more appropriately used.

 

Finally,I would wish to extend the Court's thanks to all those who participated in this Inquiry and to formally express the court's sympathy to the surviving members of Alexander Stewart's family.