Strakers Ltd, a firm of estate agents, has been fined £200,000 after house-hunter Lucy Driver fell down a 30ft well whilst viewing a property in Malmesbury, Wiltshire.
Whilst attempting to view the neighboring property over the garden fence Mrs Driver stepped on a piece of boarding which then gave way causing her to fall to the bottom of the well. Mrs Driver was submerged in water for over an hour before being rescued by the Fire Service. She had been able to stay afloat thanks to the assistance of a hosepipe provided by neighbours as a flotation device.
Strakers Ltd pleaded guilty to breaching section 3 (1) of the Health and Safety at Work Act 1974 by failing to discharge their general duty to a person other than an employee. The prosecution informed the court that, three days before the incident, a different prospective buyer had alerted Strakers to the presence of the well under the boarding but no further action had been taken after a brief assessment. It appears that it was assumed there was a metal grill protecting the opening beneath the boarding, although the board had not been lifted to check.
In this instance the owner of the property was deceased and so there had been nobody available with whom to check possible risks at the site. However, the Health and Safety Executive ("HSE") were concerned during their investigations and subsequent prosecution that Strakers had no systems in place for the risk assessment and that other serious risks such as asbestos or electrical faults could also not be identified or controlled.
Despite the Defence alleging that the culpability for this incident was low, Judge Simon Cooper disagreed and found the company's culpability and risk of harm under the 2014 sentencing guidance to be High.
This finding was made on the basis that there were no health and safety procedures in place to ensure the safety of any visiting members of the public and "as a result of the breach a number of people were exposed to very significant harm". Falls from height are one of the most common incidents causing serious injury or death; a 30ft fall could easily have resulted in a fatality.
Strakers accepted that the inspection carried out on the 19 April should have been more thorough but also submitted that despite there being no written process for assessment of risks that Strakers had instilled in all of their agents an industry standard process of assessment. This is complicated by the fact there are no HSE recommendations or guidance relating to properties listed for sale nor special rules for the management of property being sold on behalf of a deceased estate.
After the hearing the managing director for Strakers said "[we] are deeply distressed by the incident which took place in April 2016 and Mrs Driver's well-being is of continuing concern, we wish to make it known that Strakers have carried out extensive internal investigations and have fully cooperated with the Health and Safety Executive throughout… our aim and wish is to ensure everything possible is done to avoid any similar incident occurring in the future".
A reduced fine of £200,000 and an order to pay the HSE costs of £2,474 was made by the judge in accordance with the reduction arising from Strakers early guilty plea.
Despite the judge making it clear that he had no wish of putting Strakers out of business as a valued local supplier there was a clear motive to ensure that the fine was sufficient to have a real impact. Despite there being no specific guidance for risk assessment of properties sold on behalf of a deceased estate, nor any HSE guidance on what to include in such assessments, a strong responsibility rests with the estate agents to ensure the safety of visitors to properties during house viewing events.
After the hearing HSE inspector Matthew Tyler said: “This incident could have easily become a fatal tragedy. If, when warned of the unsafe well, the company had properly checked to see if it was secure the trauma this individual has gone through could have been prevented… Employers must check the risks associated with their work to protect their workers and members of the public they have contact with. Once they have identified any risks they can take practical steps to control them".
As a result it would seem that there is a strong need for estate agencies to ensure any risks identified at properties are thoroughly assessed and appropriately secured. This will be especially difficult in cases where there are no surviving individuals from which to ascertain the safety of the site.
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