How much for a human life?

"That company has taken my husband's life away, and it has taken mine with it. I don't believe in justice. I know that will never happen."

This woman lost her husband in a site accident last year. He was among the 65 killed in what was statistically a good year for fatalities; it's usually about 70. And she is among the many hundreds of widows who are trying to rebuild demolished lives.

There is nothing that any company can do to make up for a site death to which they have contributed. The loss is absolute, and in that sense justice is inaccessible. Nevertheless, the law makes a cold calculation of the wrong that has been done and expresses it in cash terms, and here that widow's intuition is truer than she knows. In terms of the fines imposed on companies that have been convicted of contravening health and safety law, a construction worker's life is worth considerably less than their counterparts elsewhere in British industry.

Building has analysed the judgments in 18 cases in 2004 and 2005 as part of an investigation into the punishment for fatalities over the past three years. This shows that the average fine levied on construction firms found guilty of a safety breach that led to a death is £30,361. The construction unions and many enlightened employers argue that such a figure is too low to act as a deterrent to unscrupulous firms that are willing to weigh the risk of a fine against the expense of operating proper health and safety procedures. And Building can reveal that that figure is almost 30% lower than the Health and Safety Executive's average penalty for a fatality across all industries. The figure given in the body's Offences and Penalties Report for 2004-05 is £42,795. This pattern has been consistent for the past three years (see "The penalties", below).

The levels of fines are set by individual magistrates and circuit judges in accordance with guidance from the Department for Constitutional Affairs, which sets out maximum fines for specific safety breaches (see "How the figures were calculated", below).

The reason why even these relatively low maximum fines are rarely applied appears to be that the judiciary views construction as inherently risky. Bob Blackman, the T&G's national officer for construction, believes this is the case. "I think that the judiciary feels that construction is a hazardous industry, and that people should expect to be killed or seriously injured," he says. "The same accidents, when they occur in other industries, attract fines that are substantially higher."

Another reason for the low fines handed out by circuit judges is that there is no minimum penalty for safety breaches under the Health and Safety at Work Act. Many statutory offences, such as drink-driving, carry minimum penalties to act E E as a benchmark for judges. The fact that this is not the case for work-related deaths means that judges are able to impose low fines where it is felt the inherent risk to workers mitigates the guilt of a negligent company.

Credit: Martin Parr/Magnum photos

The arguments

That message is galling to bereaved families. This is felt by Denise Lynch, whose husband Dougie died on the Channel Tunnel Rail Link project last August after his maintenance engine caught fire (see "The human cost", opposite). The loss of her husband marked a double tragedy for Denise:

16 years earlier, her brother was killed in a construction accident on the Channel Tunnel project itself.

Although Denise is still awaiting the outcome of the investigation into her husband's death, she believes that she is unlikely to receive restitution through the courts. "I find the punishment for companies an absolute disgrace," she says. "No man goes to work to be killed."

The courts' assumptions about the inherent danger of the industry are questionable on a number of grounds.

First, there is the view that unavoidable danger mitigates avoidable negligence. The implication is that an employer has only to be a bit negligent to cause death on a building site, compared with a factory, a kitchen or an office. So, because a great deal of construction work is carried out at height, and a falling body reaches a speed of 40 mph after travelling 20 m, a contractor is less culpable if it fails to install proper fall arrest systems. It is equally possible, of course, to argue that the risky nature of the work actually places greater importance on the employer's conduct, and that fines should be correspondingly higher.

The proposition that people who go to work on a building
site in the morning are entitled to return in the evening is one that much of the industry has united around in the past five years

Second, even if the courts' view is philosophically justifiable, it does not take into account recent improvements in the industry's safety awareness, and may even undermine them.

The proposition that people who go to work on a building site in the morning are entitled to return in the evening is one that much of the construction industry has united around in the past five years. Once upon a time, employers suspected that unions used complaints about

site safety as a way of pursuing industrial action by other means, and unions suspected that employers did not really take the issue seriously. That's all changed: both sides now treat the subject with the gravity it deserves.

In retrospect it is clear that things changed after the 2001 safety summit. This was gathering, chaired by John Prescott, was called in response to a spike in the industry's death rate. That brought unions, employers and government together in a commitment to address, once and for all, the issue of site deaths. Since then there has been a marked improvement in the industry's awareness of safety, and leading companies such as Bovis Lend Lease and Stanhope have devoted a great deal of thought to improving site culture.

The judiciary's discount on the value of a construction worker's life undermines this process because it creates the impression that the industry has an institutionalised risk culture that is accepted by government. It also fails to deter rogue firms from taking shortcuts on safety - and judging by the number of pictures of dangerous practices sent to Building's letters pages, these are still plentiful.

Credit: Martin Parr/Magnum photos

The movement for change

Both the T&G and UCATT have pushed the government to reform the fining system, and the HSE agrees that the situation should be addressed. Stephen Williams, chief inspector of construction at the executive, says: "The level of fines does not always fully reflect the seriousness of the offence."

The HSE is helping the Home Office to create an offence of corporate manslaughter, which would attract tougher penalties. One option currently under discussion at the Home Office is to link the level of fines to a company's turnover. This proposal, put forward by the House of Commons' Work and Pensions Select Committee in response to comments on the government's draft corporate manslaughter bill in February, would calculate fines as a percentage of turnover. Courts would be given access to firms' accounts and health and safety records before sentencing.

It is unclear whether such a move would be a deterrent, but it would at least offer parity between industries. The Construction Confederation recognises this. A spokesperson says: "There's no problem with substantial fines being levied; anything that raises awareness of health and safety in the boardroom has to be welcome. Of course, the size of the fines should be appropriate to the size of the company. It is also essential that fines be levied evenly across the industry and not just the regulated sector."

The unions agree with the employers on this issue. "I don't like the idea that any fine can be lost in a company's books," says Alan Ritchie, general secretary of UCATT, who like the T&G's Blackman is a fierce supporter of custodial sentences for individual directors - a measure that has been rejected by the government, for the time being at least. "But if that's what the legislators say, we'd welcome any stronger position than that which is currently in place."

Blackman agrees: if custodial sentencing is not an option, he is behind any measure that will place greater - and equal - value on the lives of all workers. He believes that anything else will indirectly lead to more site deaths. "At the moment, the system is flying in the face of how the industry is trying to portray itself," he said. "The situation is laughable."

Or at least it would be, if it weren't so tragic.