The Health & Safety Executive found that the employee was not properly supervised in his workplace, but as the Highways Agency is a government department it has immunity from criminal proceedings.
Instead, all the HSE could do was issue a crown censure, which is the maximum sanction that the HSE can bring against a government body.
The HSE determined that the Highways Agency had failed in its duty to ensure, as far as reasonably practicable, the health and safety of its employees.
However, the Highways Agency does not accept that it was in any way to blame, even indirectly.
John Walmsley, 59, was an experienced traffic officer from Gravesend in Kent. He was killed on 25th September 2012 when he was struck and killed by a car that went out of control on the M25. With a colleague, he was responding to a road traffic incident between junctions 4 and 5 of the motorway. A car had spun after heavy rain, ending up pointing in the wrong direction in a live lane on the motorway. The two traffic officers had towed the vehicle to the hard shoulder and, along with the car’s driver who was unhurt, were waiting for a recovery vehicle.
Mr Walmsley then walked down the hard shoulder to keep his eye out for the rescue truck when a second car went out of control on the same bend, skidded across the carriageway and hit him. He died at the scene. That driver was subsequently convicted of causing death by careless driving.
The HSE identified failures in the Highways Agency’s quarterly supervision checks at the Dartford outstation. It found that despite the introduction in July 2011 by the Highways Agency of formal quarterly supervision checks of traffic officers by a team manager, these quarterly supervision checks had not been carried out with Mr Walmsley since more than a year before his death. While the Highways Agency had in place other health and safety training and policies, including informal supervisory checks, more than half the traffic officers based at the Dartford depot had also not undergone any quarterly supervision checks.
HSE inspector Guy Widdowson, who investigated, said: “Mr Walmsley, who had worked as a traffic officer for seven years, was killed because he was not standing behind the safety barrier when a car crashed on the motorway. If the Highways Agency had conducted the necessary supervisory checks between July 2011 and his death the following September, it may have ensured he followed the correct safety procedures and prevented him from working the way he did.”
HSE regional director Tim Galloway added: “Without proper supervision, companies have no way of knowing if their specified control measures are up to date and are being properly used. It is a vital step in controlling risks in the workplace. This is the case for staff who work for the Highways Agency, or indeed any other similar organisation out on the UK road network, just as much as it applies to those who work within a more traditional environment.”
It is likely to be the last time that the Highways Agency escapes prosecution for any health and safety management failures. Government-owned companies like Network Rail and the BBC have no such immunity and the status of the Highways Agency is being changed this year to bring it into line with these.
However, depite accepting the censure, the Highways Agency denied that its management shortcomings identified by the HSE had anything to do with the death of Mr Walmsley. A Highways Agency spokesperson said: "It is not accurate to report that the Agency is culpable for the death. The driver of the vehicle which struck Mr Walmsley was convicted of causing death by careless driving.The HSE concluded there was no direct link between the supervisory checks and Mr Walmsley’s very sad death. However we have taken steps to ensure our procedures are appropriate to the health and safety of our staff and that we all follow those procedures."
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