Evidential Presentation re the death of Lee Balkwell
0100hrs 18.7.2002. Baldwins Farm, Dennises Lane, Upminster, Essex.
Background Information
(References: - Police & HSE interview Transcripts/resumes S. Bromley MG11 's Mitchinson & Humpish Hymix Instruction Booklet. Soc photos & aerial photos of scene).
Upminster Concrete is a company trading in the mixing, handling and delivery of ready mixed concrete to customers, operating from Baldwins Farm, Dennises Lane, Upminster, Essex.
This address consists of a private track leading from Dennises Lane to an area consisting of two adjacent residential bungalows, cement hoppers and areas for the mixing and discharging of concrete. The premises including the entrance track are covered by a CCTV system.
The company is run on a sole-trader basis by Simon Bromley, who also resides in one of the bungalows at the address.
By the year 2002 Simon Bromley had run the company for approximately 7-8 years having taken over the business from his father David Bromley, who began the business in 1985.
Mr Bromley Snr. no longer took an active part in the business other than occasionally driving one of the lorries on a casual basis when the need arose.
The company operated two Iveco Hymix cement mixer lorries, including M 624 RKE, the vehicle involved in the incident of 18.7.02.
This lorry consists of an Iveco chassis with a Hymix mixer drum mounted on the rear, the mixer being operated by mean of a Sauer Danfoss hydraulic system.
Within the mixing drum there are metal 'blades' fixed to the inner skin in such a position that if the drum is revolved in one direction the contents will be mixed together and if revolved in the opposite direction the contents will be discharged.
The vehicle is equipped with standard mixer controls namely two devices, one sited at the rear nearside consisting of a 'throttle' handle to control the engine revolutions, a second handle to control the speed and direction of the mixer drum, both surmounted by a third tightening handle serving as a locking device.
The second device is situated in the vehicle cab and consists of a handle to control the direction and speed of the mixer drum and a tightening handle to lock the setting of the first handle, there is no throttle handle as in the first device as when operating the mixing drum from the cab the vehicle throttle is controlled via the accelerator pedal.
The vehicle itself was regularly serviced and maintained, although at the time of this incident the 'in-cab' device was not working, the connecting mechanism having been broken.
(Simon Bromley states he was not aware of this defect, he did not think to use the 'in- cab' device at the time of the incident).
The vehicle's engine needed to be running for the mixer unit to work. Having been
started up as normal by turning the ignition key it required a cut-off switch (sited on the floor of the cab) to be depressed in order to turn off the engine.
The cut off switch required sufficient pressure to have been built up in order to operate which depending on the use of the vehicle could take a short time.
To switch off the engine before sufficient pressure had been built up, the method was to put the engine in gear and stall it.
Simon Bromley had other people (one at a time) working for him as delivery drivers when required, one of these being the deceased Lee Balkwell who he had known amicably for a number of years since the early 1980's.
To Simon Bromley's knowledge Lee Balkwell was an experienced person in the mixing, handling and delivery of ready mixed concrete, they had both in the past worked in the same capacity for a much larger company called 'Mix and Lay'.
Because of Lee Balkwell's perceived experience, no formal training was given to him or considered necessary.
Since the beginning of 2002 Lee Balkwell had worked from him on two occasions, the first in February/March for a short time prior to leaving and going to work for his uncle. The second occasion being when he returned to Upminster Concrete in May/June 2002 when he remained there until the incident of 18th July.
Although an employee in the sense of being under the control of Simon Bromley, being paid by him, allocated jobs and using company vehicles to do them, Lee Balkwell remained responsible for his own tax and National Insurance payments and so from that perspective he was self-employed.
Apart from mixing and delivering concrete it was usual following such deliveries to clean or wash out the mixing drum.
On occasions, described by Simon Bromley as once or twice a year, it was necessary to 'gun out' the drum and that he and Lee Balkwell had both carried out such procedure whilst working for Mix and Lay. 'Gunning out' refers to a process where individuals climb inside the drum from the open end and use 'Kango' hammer drills to break up built-up or dried residue, the drum is then revolved to discharge accumulated debris.
Events of 17/18th July
(References: - Police & HSE interview transcripts/resumes - S. Bromley. MG11's Hall, Saunders, Weald, Wojcik, Scammell, Mitchinson, Taplin, Philips, Williams, Humpish, Hennessy, Whiteford & Ambulance/Fire. Hymix Instruction Booklet. 999 call tape & CD. Tachograph sheet. Telephone record sheet, Scene photos & video. CCTV).
Lee Balkwell had been at work since about 8-9am that day. Mid afternoon whilst out on the road with a full load (estimated 13 tonnes) to be delivered to two separate jobs at Woodford and Rainham respectively he discovered a problem on the vehicle in that one of the mixing drum rollers had broken and wasn't operating correctly.
Having notified Simon Bromley, on instructions he drove the vehicle and load to the regular HGV service and repair garage (Scammell Commercial) at West Thurrock arriving at 3:30 -4 pm.
Having had the vehicle successfully repaired which took about two hours, the load was starting to dry out so Lee Balkwell added some water to it and leaving the garage at approximately 5:15pm delivered half the load to the Rainham destination. Having completed this part delivery he returned to Baldwins farm between 7-7:30pm, at this point the remaining load estimated at 6-7 tonnes of concrete was well advanced in the process of hardening up.
It was decided that this concrete was in such state as to require Simon Bromley and Lee Balkwell to 'gun out' the drum, the basis being that if left the load would have solidified by the next morning and an entire new drum required, Further deliveries were due to be made the following morning, There was no one else other than Simon Bromley & Lee Balkwell to do the job anyway.
The pair embarked on this process at about 8pm, the method used for approximately the first 1-2 hrs was for both to get inside the drum via the main opening with electrically powered 'Kango' hammer drills and break up the hardening concrete. Because of the weight of the drills it was only feasible to drill sections below the level of the operators feet.
On two or three occasions they stopped drilling, one would exit the drum, start the vehicle's engine and then revolve the drum slowly via the rear nearside drum controls, whilst the other called out when the next appropriate section to be drilled was in place. This aspect is clearly physically risky and in contravention of recommended and obvious safety precautions.
Both persons performed each of the described roles, during the course of the operation darkness fell and a portable electric lead light was used to illuminate the immediate work area in addition to security lighting outside of the residential bungalows. Because of the amount and condition of concrete in the drum the procedure thus far was ineffective with hardening concrete built up behind the internal blades.
To address this, after the described hour or two, the two inspection hatches sited on opposite sides at the bottom (closed end) of the drum were unbolted, allowing them to get inside the drum base and continue drilling and shovelling the concrete straight out of the hatches having done an initial amount from outside to facilitate their entry.
Should the drum need turning to access the next appropriate section to be drilled then they repeated the earlier practice i.e. one exited to start the engine and slowly revolve the drum on the shouted instructions of the one remaining inside.
During the course of the afternoon and evening there were a number of telephone calls between Lee Balkwell and his partner Lorraine Mitchinson confirming the breakdown of the vehicle, the need for 'gunning out' and cancellation of his usual evening meal.
From latter conversations at approximately 10:30 & 11:45pm it was clear that Lee Balkwell was tired and hungry and the remedial procedure was more difficult and lengthy than first envisaged.
At approximately 1:00am both were inside the drum when Simon Bromley got out through a hatch and went to the offside of the vehicle's cab intending to start the engine and then go to the rear nearside control device to move the mixing drum around slowly.
Having started the engine he got out of the cab but the drum had immediately begun moving. He saw Lee Balkwell's legs protruding from the offside inspection hatch of the drum being dragged towards the point where the drum met the vehicle chassis. Having tried unsuccessfully to stop the engine by pressing the cut out switch, he ran to the rear control device and stopped the drum revolving.
It was clear to him by this time that Lee Balkwell was dead.
In the heat of the moment it had not occurred to him to try and utilise the cab control, which as previously indicated was not in working order anyway
He reversed the drum and then stopped it again, although any attempt to alleviate the situation was clearly fruitless, it was clear that Lee Balkwell was deceased.
Simon Bromley shut down the vehicle by returning to the cab, putting the engine in reverse gear and stalling it
He then ran to his father's bungalow nearby, waking him from sleep and explaining what had occurred, his father then telephoning the emergency services.
The 999 call was timed between 01:03 and 01:08am 18.7.02. (London Ambulance Service timings). The vehicle tachograph shows two minute traces of vehicle motion without distance or speed traces, shortly before 1:00am apparently confirming the timing of the incident.
From available evidence the only people concerned in the gunning out procedure were Simon Bromley and the deceased, shadows and security light activations can be seen on CCTV film obtained at appropriate times.
During the course of the previous evening of 17l July there are a number of vehicular movements to and from the site of no apparent relevance to the work in progress.
Expert Evidence
(Reference sources: - MG11 's Heath, Rouse, Suman, Humpish, Henessy, Whiteford, Scammell, Wojcik & Bainbridge. VSRC report. Video of Vehicle Demo. Soc photographs).
Action Taken.
Post Mortem examination by a Home Office Forensic Pathologist, later confirmed by
a second opinion obtained from another Home Office Forensic Pathologist.
Forensic examination of blood samples by Forensic Toxicologist;
Consultation with Vehicle Safety Research Centre (VSRC) Loughborough University
Examination of the vehicle operation with consultants from: -
Iveco (Vehicle manufacture), Hymix (Mixer Drum manufacture and assembly), Sauer-Danfoss (Mixer hydraulic system manufacturer)
VSRC (Vehicle Safety, Accident & Injury Source Investigation Consultants)
Conclusions have been formed in the following categories: -
a) The Deceased:
There was no evidence of natural disease that could have caused or contributed to death.
There was no pathological evidence of: Defence wounds. Restraint wounds. Scuffle injuries. Offensive injuries.
The cause of death was multiple injuries.
Those injuries were consistent and typical of crushing caused by being entangled or
drawn into moving machinery.
At some time prior to Lee Balkwell's death he had used Cocaine, however it was not possible to say when, how much or whether he was under the influence of the drug at the time of his death.
b) The Vehicle:
The vehicle was regularly serviced and was in a reasonable state of repair.
The engine cut-off button was in a reasonable state of repair for the age of the vehicle.
The cut-off system works on air pressure, over time the system's efficiency will reduce and thus the ability to maintain and build up pressure will deteriorate.
During a demonstration on 24.10.03 the button worked properly - this maybe because the engine had been running for some time and thus the pressure had built up sufficiently.
The mixer's forward control device situated in the vehicle cab was not in working order.
The neutral position of the drum handle on the mixer's rear control device was difficult to find, possibly due to wear in the linkage, when found it was not in the usual upright position.
When in the neutral position the handles moved slightly when the locking handle was applied. If neutral was selected, the engine turned off and the locking nut then applied, it could be possible for the levers to have been moved sufficiently so that when the engine was restarted the drum would rotate.
Although the drum would not normally move without the vehicle's engine running, the drum was seen to move involuntarily during a demonstration of the vehicle on 24 October 2003. This could have been attributable to there being an amount of set concrete in the drum that may, if offset, have occasionally pulled the weight down by gravity.
c) The Incident:
That Lee Balkwell was killed as a result of a tragic accident.
The main reason for the accident concerns the sudden and unexpected rotation of the mixing drum occurring whilst the deceased was exiting from the drum.
That from the orientation of the deceased's body and the size of the inspection hatch, he would have been about halfway out (feet first) when the drum started rotating.
There is no evidence to suggest the drum was deliberately rotated, or that the deceased was completely inside the drum at the time it was rotated, in fact it would have been practically impossible for him to fall through the hatch feet first.
The deceased's injuries are entirely consistent with him being trapped and crushed between the drum and vehicle chassis, the main injuries through contact with the top side of one of the hatches, the drum itself and the chassis.
Legal Opinion
Initial and subsequent submission of evidence to the Crown Prosecution Service for advice as to whether a charge of murder or manslaughter could properly be preferred resulted in the following opinion: -
There is no evidence of murder or assault prior to the tragedy, nor any motive for such conduct.
There is clear evidence of unsatisfactory working practices. That would be true of both Mr. Bromley and Lee Balkwell.
The standard to be met is a high one, regretfully it is not met and one cannot be satisfied that Mr. Bromley was so negligent as to be guilty of manslaughter.
Proceedings cannot be advised.