I am looking for a second opinion on a potential RIDDOR reportability case involving a member of the public.

I’ve reached a conclusion but want to ensure my interpretation of Regulation 5 (Non-workers) is robust.

The Incident:

Setup: A site team completed an excavation on a public footpath. Before leaving at 14:00, they secured the area with barriers (clipped and taped) and recorded the secure state via digital video.

The Event: 7.5 hours later (21:30), a resident returning from holiday allegedly stepped into the excavation (no witnesses or CCTV recording). It was dark, and the weather conditions were adverse, according to the claimant, who had already instructed his solicitor.

Status at Incident: On the site team's arrival, the barriers on one side were found displaced. Our historical data shows the site had been secure for over a week prior to this event.

Injury/Treatment: The individual sustained lacerations and self-presented to A&E later that night stating that he has spend 4 hours there. No ambulance was called to the scene, and the person was not taken directly from the site to the hospital. Not clear his he drove into the A&E or was taken.

Current Assessment: We have classified this as Not Reportable under RIDDOR Regulation 5 based on two main factors:

Causation: Digital evidence confirms the "work activity" was left in a safe, compliant state. The displacement occurred during a 7.5-hour unsupervised window, likely due to external variables (third-party interference) rather than a failure in the work itself. Video recordings of previous days clearly evidence vehicles parking in the area.

Hospital Requirement: The individual was not taken from the site to a hospital for treatment; they self-presented later. No evidence of any treatment.

The Question: Do you agree that the "taken from the site to a hospital" threshold has not been met? Furthermore, if the work was left in a compliant state and external factors displaced the barriers, would you agree the accident did not arise "out of or in connection with the work activity" at the time of the fall?

Looking forward to your professional insights.

RIDDOR is immaterial - there is a claim in progress and unless you can find evidence to the contrary your company (insurers) will be paying. The incident does appear to fail the taken for treatment test.

To me however a "completed" excavation is one that has been back-filled and remediated so there should be no need for fencing, nor a hole being present for the i.p. to have fallen in.

Your comment about site security for over a week indicates that activity was on-going - absence of a team does not magically mean there is no work being undertaken merely that it has been paused.

As to the site being "compliant & secure" interference by third party variables appears to have been overlooked otherwise how did/could the fencing move?

Hi bxuxa

I agree with Roundtuit that, in so far as any civil claim is concerned whether or not it is RIDDOR reportable is immaterial.

However, your question is specifically about RIDDOR, so to that.

As you know the relevant part of RIDDOR says:

"5. Where any person not at work, as a result of a work-related accident, suffers—

(a) an injury, and that person is taken from the site of the accident to a hospital for treatment in respect of that injury;....."

If the injured person has taken themselves from the site of the accident to a hospital, have they been "taken"?

Since RIDDOR doesn't specifically indicate that someone else has to be doing the taking, then I think the answer is YES.

Unless you can prove on the balance of probabilities that the injured person:

1. hasn't fallen into the excavation or come to some other misfortune at the site OR

2. didn't get get injured as a result OR

3. didn't got directly to hospital, may be popping into the pub on their way, or otherwise breaking the causal chain OR

4. didn't need any hospital treatment, however minor

Then I think that arguing about any of these points is simply going to irritate a Court.

Which leaves you with a potential debate about whether the accident and associated injury were "work related".

Given that what is usually put in place as "signing and guarding" around holes in the road to comply with NRSWA and the "Red Book" is nowhere near as robust as the measures recommended in HSE guidance HSG 151 and that plastic barriers even with enough sandbags or other means of securing them to avoid them being overturned or otherwise dislocated can and do get moved, then I am in the camp that says that this was probably "work related".

Very much doubt that the loss adjusters or defence solicitors will be interested in RIDDOR or not RIDDOR.

Instead they will be considering whether all reasonably practicable precautions were put in place.

There was a time as an HSE Inspector I was regularly visiting refurbishment sites in a deprived area of a major city.

The Contractor would often comment on how difficult it was to keep the kids and others off site.

My retort was standard. You should have known what to expect and should have built adequate security measures into your tender.

Then one October evening, I parked outside a primary school on my way to interview an accident victim. We had a complaint about a site adjacent to the primary school.

From the car I could see that the entire site was secured with Heras-type fencing and that ladders had been removed from the lower lifts of scaffolds and that security guards were patrolling in the evening. OK, I thought best secured refurb site I have ever seen round here.

Got into the office the following morning. Piece of paper marked top right had corner with my initials and the letters "INV".

Told my boss that I had been at this site about 16 hours earlier and everything looking fine.

"Peter, child, head injury, could end up fatal, get out there."

So, off I went.

Got the usual stuff about how difficult it was to keep the kids and others off site, but this time with a difference!

One night six teenagers had broken in. Security staff saw them off.

The following night more teenagers, this time armed with machetes. Security guards had decided to look after their own safety. Teenagers had broken into the site office and had vandalised the new fangled computer.

...and seemingly on the night of the accident the teenager who was now in hospital had managed to shin up the scaffold, then up the remaining ladders to the top lift, before falling off, about 10 metres.

I wasn't that impressed that apparently one of the security guards had ALSO shinned up the scaffold in pursuit, but said security guard was not top of my concerns at this point in time.

Concluded that this site HAD passed the threshold for doing what was reasonably practicable and that the likelihood of a successful civil action if robustly defended was next to none.

BUT of course your insurance company's loss adjusters, along with defence solicitors may well recommend settling any action Out of Court and if that happens your advice is unlikely to have much weight.