Responsibility for unsafe construction work following a fatality

Following the sentencing of two construction companies and a contracts manager after a worker was killed in an unsupported trench.

Charles Mather, solicitor in our regulatory and compliance team, considers the court’s approach and the practical lessons for those responsible for construction work.

The sentencing decision in R v O’Connor and others provides a stark reminder that responsibility for health and safety cannot be delegated away or left to paperwork. Where those managing a project know that work is being carried out in obviously dangerous conditions, the Court will expect immediate and effective intervention.

The circumstances of the fatal trench collapse

Gheorghita Arsene was working at a construction site in Banstead, Surrey, when a deep trench collapsed on 24 June 2020. He was buried beneath approximately two tonnes of soil and died at the scene.

The trench was around three metres deep and had no supports to prevent its walls from collapsing. Excavated soil had also been deposited immediately beside the trench, adding to the pressure on its sides. Mr Arsene had been working at the bottom of the excavation to replace a damaged pipe when the collapse occurred.

Appledorn Developments Limited was the principal contractor for the project. T Vaughan Limited was a subcontractor, and Anthony O’Connor was its contracts manager.

Following a trial at the Central Criminal Court, Appledorn and T Vaughan Limited were convicted of failing to discharge duties under the Health and Safety at Work etc. Act 1974.

The jury was unable to reach a verdict on a manslaughter charge against Mr O’Connor. He subsequently pleaded guilty to failing to discharge his duty as an employee under the 1974 Act.

How the court assessed responsibility 

When sentencing health and safety offences, the court considers the offender’s culpability, the seriousness and likelihood of the harm risked, and, for an organisation, its turnover or equivalent financial resources.

The court placed all three offences in harm category 1. The work exposed those entering the trench to a high likelihood of death, and the risk was not confined to Mr Arsene. Other workers had also been exposed to the same dangerous conditions.

Appledorn’s culpability was assessed as high; the court found that deep excavation work had been carried out without a suitable risk assessment or method statement and that cost-cutting had taken priority over safety. It also found evidence of deliberate concealment.

T Vaughan Limited was assessed as having medium culpability, with an upward adjustment. Although the company had systems in place and a generally good health and safety record, the court found that those systems had not been sufficiently followed or implemented on this project.

Mr O’Connor’s culpability was assessed as high; he had attended the site approximately an hour before the collapse, had seen the unsupported trench and had actual foresight of the risk of harm. Despite having the authority and opportunity to stop the work, he failed to do so.

What sentences were imposed?

Appledorn Developments Limited was fined £500,000. T Vaughan Limited was fined £650,000 and ordered to pay £40,000 towards the prosecution’s costs.

Mr O’Connor was sentenced to 10 months’ imprisonment, suspended for 18 months, and ordered to complete 150 hours of unpaid work.

The sentences demonstrate that liability does not stop with the corporate employer. An individual manager who sees an immediate and serious danger but permits work to continue may face personal prosecution and a custodial sentence.

Practical lessons for construction businesses

The central lesson is that health and safety arrangements must operate in practice. A written policy or generic risk assessment will provide little protection if unsafe work is visible on site and those with authority fail to intervene.

Principal contractors, contractors and subcontractors should consider the following practical steps:

• Plan excavation work before it begins: a suitable and sufficient risk assessment and method statement should address ground conditions, trench depth, support systems, access, spoil placement and emergency arrangements.
• Inspect excavations properly: inspections should be undertaken by a competent person at the required intervals and after events that may affect stability, including adverse weather or changes in ground conditions.
• Define who has authority to stop work: managers and supervisors should understand that they are expected to intervene immediately where there is a serious risk. Commercial pressure, delay or uncertainty about contractual responsibility should never prevent work from being stopped.
• Check that subcontractors follow agreed controls: appointment of a competent subcontractor does not remove the need for coordination, monitoring and supervision.
• Record decisions and action taken: briefings, inspections, changes to methods and stop-work decisions should be documented. Records should reflect what is happening on site, rather than simply repeating standard wording.

Putting health and safety arrangements into practice

This case involved a danger that was obvious, well understood and readily preventable. The absence of trench support, the position of the excavated soil and the failure to stop work created a foreseeable risk of death.

The sentencing decision reinforces that courts will look beyond the existence of policies and procedures. They will examine what those responsible knew, what they saw and what they did in response.

Charles qualified as a solicitor in our regulatory, compliance and licensing and insolvency and restructuring teams in 2024. He advises individuals and organisations on a wide range of contentious and non-contentious issues, including regulatory and local authority investigations and prosecutions, insolvency and data protection.
If your business is facing a Health and Safety Executive or police investigation, has received an enforcement notice, or requires advice on managing construction health and safety risks, our regulatory and compliance team can help. Please contact on 01772 258321.

Charles Mather