Philip McDonald had been hired by Birch Brothers (Kidderminster) Ltd to help with the construction of a concrete overflow weir structure at Monks Pond, near Ashbourne in Derbyshire.

The 48-year-old man was with colleagues on a road above the work area on 5th September 2017, waiting for the excavator to remove sand from trench boxes, when it rotated clockwise and crushed him.

The case has taken more than five years to get to court. In the meantime, the contractor has folded.

Kidderminster Magistrates Court heard that Birch Brothers, as principal contractor, had hired steel fixers and joiners to undertake the work before tragedy struck

An investigation by the Health & Safety Executive (HSE) found that the work had not been adequately planned. No instructions had been given to the digger operator or to pedestrians who were working in the area. The risks associated with the work had not been adequately assessed, and there was no segregation of pedestrians and plant in this area of the site.

Birch Brothers had not appointed a banksman to ensure the safety of pedestrians while the vehicle was in operation and there was also nobody to oversee this element of the work to ensure it was carried out safely.

Following the incident, the HSE served a prohibition notice to stop further work involving mobile plant and vehicles until the site had been better organised. 

Birch Brothers (Kidderminster) Ltd of Sandy Lane Industrial Estate, Stourport-on-Severn, pleaded guilty to breaching Regulation 27(1) of the Construction (Design and Management) Regulations 2015. It was fined £146,000  and ordered to pay costs of £4,621.90.

In September 2022 the company appointed liquidators, owing unsecured creditors £300,000. (Parent company Birch Brothers Holdings Limited remains extant, however.)

HSE inspector Katherine Cotton said, “This was a tragic incident that was easily preventable.  Those in control of work have a responsibility to organise their sites and devise safe methods of working, in relation to vehicles and pedestrians, and ensure they are implemented.

“Construction site vehicle incidents can and should be prevented by the effective management of transport operations throughout the construction process.

“Companies should be aware that HSE will not hesitate to take appropriate enforcement action against those that fall below the required standards.”

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