A UK court has concluded the investigation and subsequent legal process that began on June 5th, 2013 when a newly delivered Genie Z-135/70 platform from the Kimberly Access rental fleet overturned rearwards with its basket landing on the side of the M-25 motorway, near Heathrow Airport.
The operator Richard (Rick) Jaeger-Fozard, 29, the foreman at Kimberly’s Iver depot, was killed.
The investigation quickly identified an error in the calibration of the sensors on the boom lift’s lower telescopic boom, which allowed the four section boom/riser to be fully telescoped even when it was elevated at a lower angle than was safe - around 76 degrees or more. Telescoping the lower boom below the minimum angle created a serious rearward stability issue, particularly when the lower boom was fully telescoped, and the upper boom was elevated to a high angle. This was exactly what happened on that fateful day in June 2013, as Jaeger-Fozard ran the machine through a full test cycle, unaware that the lower boom elevation was six degrees short of the minimum safe angle.
The investigation went on to find that it was possible to mis-calibrate the angle sensors, so that the safety interlocks, which ensure that the machine could only operate within its safe working envelope, were not triggered. Following the incident, Genie issued a safety notice alerting owners to check and verify the calibration of the lower boom angle sensors Genie issues Z-135/70 Safety Notice this was followed in early 2014 by a software modification to prevent such cases of ‘human error’ from occurring.
It took the UK’s Health & Safety Executive nine months to issue a notice of its own, and when it did so in February 2014, the bulletin was non-committal simply stating:
“The emerging findings from the HSE investigations indicate that the operational stability of a Genie Z135/70 mobile elevated work platform may be compromised by the incorrect measurement of the boom angle sensors.” See: HSE issues Z-135/70 bulletin
More recently the HSE wrote to the directors of Kimberly Access stating that they and the company would not be subject to any prosecution, effectively exonerating them of having done anything that contributed to the incident. While all three parties involved agreed that human error involved with calibrating the machine was to blame for the overturn, there was debate over who, when or how the calibration error was made.
A Genie UK service engineer had worked on the machine 15 days prior to the incident occurring on May 20th, although it was apparently unclear if that was when the unit was mis-calibrated or not.
The HSE has now issued a statement which says: “The mis-calibration occurred through incorrect data being manually manipulated and uploaded onto the machine via a laptop using password protected WebGPI software. The carrying out of warranty repairs on the machine during this period, including granting access to the WebGPI software, fell within the conduct of Genie UK Ltd’s undertaking.” It has though avoided placing any blame on any individual.
Genie pleaded guilty under Section 3 (1) of the Health and Safety at Work Act 1974. The plea was described as a “mitigated plea deal”, possibly on the basis that prior to the modifications it was possible for a trained individual to incorrectly calibrate the lower boom angle sensors?
As a result, Genie was issued with a £270,000 fine plus £165,175 in costs, and the case has now been closed.
Genie has issued a statement regarding the incident which is published in full below:
“On 27 June 2022, a mitigated plea was agreed to by Genie UK with the UK Crown Court bringing a conclusion to the legal proceedings arising from a tragic accident that occurred on June 5, 2013. On that date, a 2012 Genie Z-135/70 overturned, tragically causing fatal injuries to the operator, Mr. Rick Jaegar-Fozard. A thorough and timely investigation was conducted following the accident, which determined that the machine had been mis-calibrated at some point during maintenance. The investigation also confirmed that Genie Z-135/70 machines are safe to use as intended provided the machine is in proper calibration/working order, and other safe use requirements are followed."
"Shortly after the accident, Genie issued a 29 July 2013 Safety Notice to address proper calibration of Z-135/70s. In the Spring of 2014, Genie introduced upgraded software to mitigate against the chances of mis-calibration. This software was implemented on new machines and through a Service Advisory was offered as a retrofit to existing machines in the field. Safety, and our Zero Harm Safety Culture, have always been the top priority for Genie. This includes the health and safety of operators, individuals who work on and around our machines, and the team members who manufacture our equipment. That said, any accident where there is a loss of life is a tragedy. Our thoughts continue to be with the family and friends of Mr. Jaeger-Fozard.”
NB: The assets and goodwill of Kimberly Access were acquired by AFI in 2017, with the Kimberly Access corporate entity remaining open until either the case came to court, or the company was cleared, the closure process began early this year.
Regardless of the finer details of this incident, all of the parties have refrained from placing any blame of responsibility on any single individual, because (a) Irrefutable evidence is apparently not available and (b) highlighting an individual for making a genuine error, serves no purpose, unless they were grossly negligent, which no one believes for a second. Instead, the case has focussed on the fact that such an error was possible in the first place, or that a company - either the manufacturer, the dealer - Genie UK - or the rental company might have been negligent in some way.
However, the real scandal here is the length of time that this case has taken to be concluded. Nine years, almost to the day, is a shocking, disgusting and inexcusable time frame. It must have become apparent within days - possibly a few weeks at most - of this incident what had happened. After that, it was a case of how could it have been possible? Or who committed the human error or were there other contributing factors? But does it matter who made the inadvertent error? Unless it was carried out maliciously, which is more the stuff of fiction than the real world, then who made the mistake is not really that important. What is always far more important is to clearly alert owners, service engineers and other interested parties of the risk that this could have happened and what to look out for. The most effective way to do that is for the official safety regulator to state clearly and openly exactly what happened, without finger pointing. Then it should suggest solutions to prevent any further such incidents.
Fortunately, in this case, warnings and some important information was circulated fairly quickly, both by Kimberly and by Genie. Kimberly almost immediately withdrew all of its machines from service until it understood what had happened and it has taken steps to prevent any recurrence. It even went on to have a third party engineering company design and install a fail-safe, bolt-on system before putting its units back into to service in May 2014.
Taking this amount of time to reach a conclusion in such a case leaves the threat of prosecution and serious costs hanging over all of the parties involved - the companies, their directors and their employees - for a major part of their lives. In the interim the HSE usually refuses to issue any detailed or clear-cut information on what happened, on the basis that IF the decision is taken to prosecute, the legal case is not jeopardised. This can prevent lessons from being learnt, while also being a cruel and inhumane punishment for those involved. At the same time the family of the deceased is prevented from having final closure on their grief, while the legal case remains open. The UK bans the extradition of serious criminals to those states in the USA that have the death penalty for their crime, on the basis that the excessive time between justice being handed down and execution is a cruel and inhumane punishment. Yet this principal is ignored when it comes to cases like this.
In the aviation world the importance of a fast and open investigation was learnt early in the last century, and more recently was adopted in the UK rail industry. And yet, we ignore the benefits of such a process when it comes to serious accidents at work. This must change.