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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Chilcott v Thermal Transfer Ltd  EWHC 2086 (Admin) (17 July 2009)
Cite as:  EWHC 2086 (Admin)
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QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
London WC2A 2LL
B e f o r e :
|THERMAL TRANSFER LIMITED||Defendant|
WordWave International Limited
A Merrill Communications Company
165 Fleet Street London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7404 1424
(Official Shorthand Writers to the Court)
MR J MAXWELL-SCOTT (instructed by ASB LAW) appeared on behalf of the Defendant
Crown Copyright ©
"(1) This section applies to any activities which are being, or are likely to be carried on by or under the control of any person, being activities to, or in relation to which, any of the relevant statutory provisions apply or will if the activities are so carried on applied. (2) If, as regards any activities to which this section applies, an Inspector is of the opinion that, as carried on or likely to be carried on, by or under the control of the person in question, the activities involved, or as the case may be will involve, a risk of serious personal injury, the Inspector may serve on that person a notice in this part referred to as a Prohibition Notice. (3) A prohibition notice shall a) state that the Inspector is of the said opinion; b) specify the matters in which, in his opinion, give, or as the case may be, will give rise to the said risk; c) whether in his opinion any of those matters involves, or as the case may be, will involve a contravention of any of the relevant statutory provisions, state that he is of that opinion, specify the provision or provisions to which he is of that opinion, and give particulars of the reasons why he is of that opinion; and d) direct that the activities to which the notice relates shall not be carried on by or under the control of the person on whom the notice is served unless the matters specified in the notice, in pursuance of paragraph B above and any associated contraventions of conclusions so specified in pursuance of paragraph C above, shall have been remedied."
I do not think I need read on for present purposes.
"(1) In this section, a notice means an Improvement Notice or a Prohibition Notice. (2) The person on whom a notice is served may, within such period from the date of its services may be to prescribe, appeal to an Employment Tribunal, and on such an appeal the Tribunal may either cancel or affirm the notice. If it affirms it, it may do so in either its original form or with such modifications as the Tribunal may in the circumstances think fit. (3) Where an appeal under this section is brought against the notice in the period allowed under the preceding subsections, then a) in the case of an Improvement Notice, the bringing of the appeal shall have the effect of suspending the operation of the notice until the appeal is finally disposed of or, if the appeal is withdrawn, until the withdrawal of the appeal; b) in the case of a Prohibition Notice, the bringing of the appeal shall have the like effect if, but only if, on the application of the appellant, the Tribunal so directs, and then only from the giving of the direction. (4) One or more assessors may be appointed for the purpose of any proceedings brought before an Employment Tribunal under this section."
"In the light of those factors, and of the authorities cited in De Smith Woolf & Jowell's Judicial Review of Administrative Law (1999), pp 251-252, paragraph 6-010, I expressed the provisional view during the course of argument that a Tribunal hearing an appeal under section 24 of the 1974 Act was not limited to reviewing the genuineness and/or the reasonableness of the Inspector's opinions. It was required to form its own view, paying due regard to the Inspector's expertise, see in particular Sagnata Investments Ltd v Norwich Corporation [1971} 2QB 614."
"1. This is an appeal under section 42(1) Health and Safety at Work Act 1974 against a prohibition notice under section 22. The facts as we find them are as follows.
2. The appellants are the main contractors fro the Catalent Zydis site in Swindon. They engaged sub-contractors, the AA Group, to carry out platform steelwork. The platform was a steel platform about 4m in height which was to be used for installing cooling towers and which, we believe, was to remain as part of the final structure as a means of access to the cooling towers.
3. The two parties agreed a "Task Specific Risk Assessment/method Statement". The Assessment identified "falling from height" as a hazard to be addressed. Part 6 of the document sets out the Sequence of Works. The last part of this Method Statement dealt with erecting the handrails. This stated-
"With all steel erected handrail will be fitted from the mewp."
"Mewp" is an acronym for a mobile platform.
4. Mr Cade was the appellant's Site Manager. On the Morning of 29 July he had walked around the site and saw that Mr Campbell, who was employed by the AA Group as a working supervisor, was working from the platform with his assistant. This practice was contrary to the Method Statement agreed with the sub-contractors, which provided for all such work to be done from the mewp without standing on the platform, but Mr Cade was not aware of this provision in the Method Statement and took no action.
5. At about midday on 29th July Mr Campbell fell through a hole in the platform and broke both his ankles.
6. By coincidence Mr Chilcott, one of Her Majesty's Health and Safety Inspectors, had decided to make an unplanned visit to the site that day. On arrival he was informed of the accident by the security guard at the gatehouse. He decided to investigate.
7. At about 17.30 he issued a Prohibition notice in the following terms -
'I...hereby give you notice that I am of the opinion that the following activities namely:
Work at height on the access platform for the new cooling towers which are under your control at
Catalent Pharma Solutions, Frankland, Rd. Blaygrove Rd, Swindon
involve or will involve a risk of serious personal injury, and that the matters which give rise/will give rise to the said risks are:
there is a risk of death or serious personal injury from persons falling from height as there is not suitable and sufficient edge protection or a safe system for installing it and there are gaps in the floor
and that the said matters involve/will involve contravention of the following statutory provisions:
Health and Safety at Work etc. Act 1974 section 3
Work at Height Regulations 2005, Regulation 4
you have failed to ensure so far as is reasonably practicable that work at height is planned to avoid the risk of persons falling from height
and I hereby direct that the said activities shall not be carried on by you or under your control immediately unless the said contraventions have been remedied'.
8. Once such a Prohibtion Order has been made it cannot be revoked by the Inspector, but the next day Mr Chilcott said that he was happy to 'lift' the Prohibtion Notice."
"19. We can understand Mr Chilcott's concern faced with an actual accident, an apparent danger and a main contractor whom he did not know. It may well have been the right decision then, but when, the next day, he expressed himself satisfied with the precautions put in place by the appellants it became apparent that his decision had been premature and excessive.
20. The tools available to an Inspector are limited. A 24 hour temporary order would have been legitimate, but that cannot be done. He had the choice of either making a permanent order, with all the ramifications for the appellants, or doing nothing with the risk that the appellants would allow the sub-contractors back on the platform.
21. It is our view, with hindsight, that there was no real risk that the AA Group would go back on the platform that night. Mr Campbell, who was the working supervisor, was in hospital. His assistant had taken him to hospital. Mr Chilcott could have obtained an assurance, if necessary in writing, that no-one would work on that handrail at all for 24 hours and that, thereafter, it would be done in accordance with the method statement."