All fall down

I was on my way to the gym. It was lunchtime on the Tuesday before Easter. It was raining. There were some pretty strong winds, too, and a brolly wasn't much use. I was passing by a construction site near my office. It was the Jurys Inn in Milton Keynes, and it was going up apace. As a construction lawyer, I like seeing new buildings. The design and the speed at which these things get built never ceases to amaze me. There were workers everywhere. Then: a rumble of thunder. Except, it wasn't thunder. It was the scaffolding from the northern elevation of the building. Fifteen floors of metal poles, standard walkway planks, rivets and fixings. All of it was collapsing like a deck of cards. It was an awesome sight. I stood stock still, 100 yards from the scene. There were then sounds of shouting and general panic. I thought of dialling 999. Before I could do so, there were sirens blaring and the emergency services were on the scene. From my perspective the whole thing seemed to last far longer than it really did.

It is probably quite rare for a construction lawyer to witness an accident on site as it takes place. I have relived the event a number of times, first for the media who assembled with remarkable speed and also privately. Three thoughts have struck me since. The first is that having worked in Hong Kong for six years, I saw countless scaffoldings, with not an ounce of steel in them: all scaffolding (as on countless building sites in Asia) is made of bamboo and twine.

The second thought concerns the nature of human memory when confronted with traumatic events. In my past life I was a psychologist, versed in the experimental data that tells us the recall of events is often inaccurate and incomplete. I can now testify to that. I felt confident at the time that the failure was from the top downwards, but revisiting the events I am no longer so sure. I was hopeful there were no workers on the scaffolding: I certainly saw none. But the injuries and now the fatality show my hope was forlorn.

The third thought is that construction sites are inherently dangerous places. This is trite: it is an expression that I have allowed to trip off my own tongue in the past. It is only now that I see the true extent of that danger. By and large, the industry has improved its safety record. There are many places in the world where construction activity kills more of its workers than in the UK. But any death or injury is unacceptable.

How then does the law regulate the reality? The Health and Safety Executive is now investigating the events that took place that day. Each witness will have his or her own story. And as with me, each will be susceptible to mistakes in their recollection. In reconstructing the collapse the inspectors will try to establish a version of what happened that will by necessity be a conglomeration of different viewpoints. They will be assisted by documentary site records and forensic examination of the debris.

It wasn't thunder. It was scaffolding from the northern elevation of the building. Fourteen floors of metal poles, standard walkway planks, rivets and fixings...

It would of course be wrong to speculate too much as to the cause of the collapse before the HSE's investigation is complete. What is clear is that there must have been a failure somewhere. Once liability is known, prosecutions may well follow. The requirements for safe scaffolding are clear. All scaffolding should be designed, erected, altered and dismantled by competent people under the supervision of competent people. Scaffolding must be regularly inspected by a competent person. Such inspections must be made before first use, after alteration, following any event likely to have an effect on stability and in any case at least every seven days. Where fault lies in this case remains to be established. Those found to be at fault may face unlimited fines.

Take as an example the scaffolding collapse that took place in October 2002 at Lower House Lane, west Derby. The contractor was repairing the gable wall of a shop, when a section of it suddenly collapsed into the road. Three workers were injured, two seriously. The scaffolding subcontractor was fined £75,000 with costs of £58,920. This was for its breach of section 2(1) of the Health and Safety at Work Act 1974. Among other things, this section states that employers must provide and maintain plant and systems of work that are safe and provide information, instruction, training and supervision to ensure that employees can carry out their jobs safely. The contractor was fined £6000, having pleaded guilty to a breach of section 2(1) of the same act.

If prosecutions are to follow the Milton Keynes collapse it can be expected that fines higher than those for Lower House Lane will result. There is also - and much here depends on the facts - the possibility of prosecution for manslaughter, whether individual, corporate or both.

All of which leaves two abiding questions: what price should we put on life in the construction industry? And is it high enough to prevent catastrophes such as this in the future? I have an answer to neither.