Practical Law

With yet another tower crane collapse (this time on a retirement living project in Kent – thankfully no one was injured), we must ask ourselves “is the current crane safety regime in the UK adequate?”.

Sadly, crane-related incidents in the UK aren’t rare enough. There have been several accidents with fatal consequences in the last ten years:

• In 2014, a construction worker was hospitalised after a crane jib collapsed.
• In 2017, three men were killed while a crane was being erected.
• Most recently, a crane collapsed in East London, resulting in one death and a hundred people being evacuated from their homes.

With the scarcity of land and new residential or office developments literally growing upwards, cranes are an everyday sight in urban areas. They provide height and lifting capacities for constrained sites while occupying only a minimal footprint. However, working in densely populated areas also means that there can be catastrophic consequences in the event of failure.

Competency and training

The competency and training of those operating and supervising cranes could be considered as an area in need of regulatory change. For example:

• In the Battersea crane collapse in 2006 (in which two men were tragically killed), the crane operators used the manual for a different model of crane to the crane in operation. In following the wrong instructions, the operators loaded a counterweight far heavier than was required, putting excessive strain on the slew bolts and causing the crane to collapse.
• In Seattle in 2019, the contractor was not adequately trained in the dismantling procedure, which when combined with winds that should have led to a managerial decision to cease operations, resulted in the crane’s collapse. Three companies were fined for a variety of violations in relation to this incident, all relating to either an absence of qualification (one company did not have a qualified supervisor on site during the disassembly) or inadequate training (workers did not know the manufacturer’s procedures nor did they understand their assigned duties).

On the facts, both of these disasters could potentially have been avoided if the training requirements for operators were more stringent, both in terms of general health and safety practices and also the specific procedures for the crane they were operating.

Building on the general duty to ensure the health, safety and welfare of employees at work under the Health and Safety at Work etc. Act 1974 (HSWA), the Provision and Use of Work Equipment Regulations 1998 (PUWER) requires the crane user to have received adequate information, instruction and training, yet the definition of “adequate” is not expanded upon, leaving it open to duty-holders to interpret and apply as they see fit.

Similarly, the Lifting Operations and Lifting Equipment Regulations (LOLER) requires that a lifting operation is planned by a competent person, which is further defined as someone with “appropriate practical and theoretical knowledge and experience of the lifting equipment to be thoroughly examined”. This language is inherently vague. It is not clear exactly when this threshold of “practical and theoretical knowledge” will be satisfied, thereby leaving an important element of crane safety to a subjective standard. In Denmark, for example, crane operators must undertake a two-year apprenticeship to qualify to drive a crane. In Germany, there is a formalised industry training scheme and in Norway and Sweden, a licence is required. But, in the UK, there is no such qualification, apprenticeship or licence.

Interestingly, the disparity between mobile crane qualifications across Europe has been recognised by the European Operator Licensing System (ECOL), yet tower cranes have not been included in the initiative. ECOL sets an objective standard of training programmes that can be accepted by member states and taught by various licencing bodies. Multi-national crane manufacturer Liebherr has remarked on the importance of the initiative given the disparity in training requirements across the globe (varying from a few days to three years) and the “real need for statutory regulations”. These learnings and initiatives can be, and should be, applied to the operation of tower cranes.

Clearly, adherence to PUWER, LOLER and the HSWA is in the interests of all parties involved as a serious failure to comply can lead to imprisonment and/or substantial fines. Saying that, the above provisions do not provide sufficient rigidity in relation to the certification, qualification and training of tower crane personnel and are therefore a low barrier to entry.

The responsibility to address competency is two-fold. Firstly, it may be time to consider the introduction of a formal qualification in the UK or, at least, an independently regulated training programme for crane operators. This should be introduced, and enforced, at national level and should apply to all crane operators, as well as erection and dismantling teams. In addition, we must learn from the tragedies in Battersea and Seattle – crane operating companies should be legally required to hold regular and up-to-date training for their staff to educate employees in relation to the specific machinery they are operating (and when operations should cease due to poor weather conditions).

Thorough examinations

As required by LOLER, cranes must be thoroughly examined at specified intervals by a competent person who must then complete a written report – a “crane MOT” as it were. The purpose of the report is to detect any defects and, where serious defects are found, to communicate this to the duty-holder. If a serious defect is found, the duty-holder and/or the competent person is required to take action to manage the risk and ensure the equipment is not used until the defect is remedied (or, if impossible to remedy, to remove the crane from use altogether).

The legislation necessitates that the person is independent and impartial though does not specify that the examinations should be carried out by a third party. The reality of this is that crane users are carrying out examinations in-house and firms are self-monitoring themselves for compliance. A guide, produced by the Tower Crane Interest Group (TCIG) in 2008, commented that thorough examinations following erection of the crane carried out by any member of the erection team (including the supervisor) would not have the required degree of independence. Again, this raises questions of adequacy – if a person is working for a company and the duty-holder is their line manager, can that person truly be regarded as “impartial” and “independent”?

Clearly, there is a need for an independent body to carry out these inspections. Since 2010, the Health and Safety Executive’s (HSE) budget has been cut by over 40% so the possibility of the HSE being able to provide third party engineers to test and inspect, in its current state, seems remote. However, with the reoccurrence of crane-related deaths and serious injuries, regulation and funding in this area are desperately needed. If additional funding for the HSE was available (though evidently has not been available in recent years), the HSE could teach and maintain an experienced and accredited team of independent experts to carry out these “thorough examinations”, testing and inspections.

Another option is to introduce a third-party certification process that would operate in the private sector, completely independent of a government department (similar to the role of an approved inspector in the building control field). The cost would ultimately be another cost borne by the developer (though initially funded by the crane operating company and consequently reimbursed).

Of course, both concepts come with constraints. The regulations and standards to be applied to inspections and testing would first have to be universally agreed by the industry, a process that would take time and extensive consultation. Once agreed, engineers would have to be adequately and uniformly trained. The upfront costs would be substantial, as would ongoing training costs, but it would (if adequately managed) greatly assist with and standardise the varying degrees of care used when examining the condition of tower cranes in use. It would also remove the possibility of bias being applied – an inevitable, if only occasional, occurrence when inspections are carried out in-house.

Notification of use

After a two-year campaign by a leading construction industry magazine for safer skylines, the Notification of Conventional Tower Crane Regulations 2010 were introduced. The Regulations required any person with control over a tower crane to notify the HSE of its use of on a construction site. Such notification would then be recorded on the associated Tower Crane Register, together with details of the crane used and results of examinations. With all the accidents preceding the introduction of the Register, it was thought that it would provide the public with some (much needed) reassurance in relation to crane safety.

However, a governmental review published by Professor Ragnar E Löfstedt determined that the register had not shown a demonstrable improvement to safety (in other words, there was no evident reduction in injury or ill health) and that it was costly for the HSE to administer and the crane industry to abide by. The report further concluded that a statutory requirement was not necessarily the most appropriate way to provide public assurance and that, if needed, the HSE should explore alternative, non-regulatory methods to give the public reassurance. It was therefore revoked and as of 6 April 2013, there is no longer a duty to notify HSE of tower crane usage.

At the time of revocation, there was widespread industry concern and confusion – with tower crane accidents not on the decline, why was the government removing regulatory requirements rather than maintaining them, or even increasing them? Tony O’Brien, secretary of the Construction Safety Campaign, commented that the revocation was being “suffocated at birth” and had not been given sufficient time to improve its effectiveness. He stated that the register assisted in making sure cranes were safe and “put firms on their toes”.

As mentioned above, a substantial reason for the revocation appears to be the HSE’s lack of funding and resources. The revocation was not borne from complaints of unaffordability from crane companies – Construction Safety Campaign supporters have commented that the £20 registration fee was “peanuts” and could have easily been carried by the industry. Furthermore, the Regulations were not onerous or administratively burdensome on the HSE – the information required was limited and easy to provide. Unions have since urged the government to bring back the Register, stating that rather than being scrapped, it should be strengthened and extended to include all types of crane.

One such example of how the Register could be strengthened is to monitor the age and condition of cranes. Following the collapse in Bow, the Construction Safety Campaign pressed for laws to impose a “shelf-life” on cranes after which they must be scrapped. As the Register previously required the age of the crane to be recorded, the HSE could use the register to ensure that cranes past their “best-before” date are scrapped and no longer used on construction sites. The Campaign has also pushed for a restriction on the number of hours crane drivers can work to prevent fatigue.

Conclusion

The suggested changes discussed in this post are just a drop in the ocean. Against a backdrop of failures and under-regulation in respect of cladding and combustibility, it is clear from the number of crane-related accidents and the glaring loopholes in the legislation that current laws and guidance are not adequate, and something needs to change. People are losing their lives, yet little or no action is being taken. At the very least, crane users should be required to undertake formal training; third party examiners should be made mandatory and, vitally, the HSE needs to fulfil a meaningful role, which can only come with greater funding.