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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 >> MWH UK Ltd v Wise (HM Inspector of Health & Safety)  EWHC 427 (Admin) (24 February 2014)
Cite as:  EWHC 427 (Admin)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| MWH UK Limited
- and -
VICTORIA SUSAN WISE (H.M. Inspector of Health & Safety)
Cyril Adjei (instructed by Addleshaw Goddard LLP) for the Respondent
Hearing dates: 18 February 2014
Crown Copyright ©
The Hon. Mr Justice Popplewell:
(1) The Tribunal was wrong as a matter of law to hold that MWH was in breach of duty in failing to give sufficient and suitable advice;
(2) Having concluded that lack of competence was not a reason to uphold the Improvement Notice, the Tribunal could not reasonably conclude that modification was appropriate;
(3) The nature of the modifications are unclear, so as to make the modified Improvement Notice unworkable.
"Prior to demolition or major refurbishment it is recommended that a fully intrusive WYGE Type 3 asbestos survey be conducted under controlled conditions where appropriate."
"Bitumen Enamel Wrapping -The external surface of each pipe is protected with bitumen enamel wrapping, above which the pipe is painted.
Note: Some bitumen based coal tar enamel pipeline wrapping materials have been known to contain hazardous material (asbestos fibres)."
"…I… give you notice of my opinion that…you….are contravening the following statutory provisions:
Health & Safety at Work etc. Act 1974, Section 2(1) & 3(1)
Construction (Design and Management) Regulations 2007, Regulation 4 & 20
The reasons for my said opinion are
You, having been appointed in the role of CDM Coordinator by the Client, have identified and collected the pre-construction information, namely the asbestos survey report, without having the necessary level of competence to be able to give suitable and sufficient advice to the Client as to whether the information provided was adequate in relation to the construction work being undertaken.
and I hereby require you to remedy the said contraventions or, as the case may be, the matters occasioning them, by…6 January 2012 …
and I direct that the measures specified in the Schedule which forms part of this Notice shall be taken to remedy the said contraventions or matters"
Measures to be taken to achieve compliance with this notice include:
1. Provide adequate training to those persons you employ who are or who are liable to have to make an assessment on the adequacy of the asbestos survey report provided at the pre construction phase of those projects in which MWH UK Ltd have been appointed as the CDM Co-ordinator
2. The training should be provided by someone who is competent to do so, who has had adequate personal practical experience
3. Achieve compliance with this notice by some equally effective means.
The training should include, but is not restricted to, the following elements:
[specific asbestos related topics were then enumerated]"
8. HSE's investigation has identified that MWH identified and collected the pre-construction information, namely the asbestos survey report, without having the necessary level of competence to be able to give suitable and sufficient advice to NWL as to whether the information provided was adequate in relation to the construction work being undertaken. As such I am serving MWH UK Ltd with Improvement Notice, serial number IN/VSW/O3/O71111/1, which requires MWH UK Ltd to provide adequate training to those persons they employ who are or who are liable to have to make an assessment on the adequacy of the asbestos survey report provided at the pre construction phase of those projects in which MWH UK Ltd have been appointed as the CDM Co-ordinator, by the required due date of 6 January 2012.
9. Please note: failure to comply with an Improvement Notice is an offence as provided by section 33(1)(g) of the Health and Safety at Work etc Act 1974…….
10. I was informed that engineers, surveyors and other such professionals employed by MWH visit site, premises, buildings etc as and when required. The Control of Asbestos Regulations 2006 states "every employer shall ensure that adequate information, instruction and training is given to those of his employees who are or who are liable to be exposed to asbestos, or who supervise such employees".
11. Furthermore, the Approved Code of Practice (L143) (ACOP) states "asbestos awareness training is required to be given to employees whose work could foreseeably expose them to asbestos. In particular, it should be given to all demolition workers and those workers in the refurbishment, maintenance and allied trades where it is foreseeable that their work will disturb the fabric of the building because ACMs may become exposed during their work. Exemption from this requirement would apply only where the employer can demonstrate that work will only be carried out in or on buildings free of ACMs. This information should be available in the client's asbestos management plan."
12. The ACOP goes on to state "Asbestos awareness training. This is for those persons who are liable to disturb asbestos while carrying out their normal everyday work, or who may influence how work is carried out, such as:
(i) general maintenance staff;
(iv) gas fitters;
(v) painters and decorators;
(viii) demolition workers;
(ix) construction workers;
(xi) heating and ventilation engineers;
(xii) telecommunications engineers;
(xiii) fire and burglar alarm installers;
(xiv) computer installers;
(xv) architects, building surveyors and other such professionals;
(xvi) shop fitters,"
13. You should ensure that those persons you employ who fall within the scope of a'fore mentioned Regulations, as defined in the ACOP, have received the necessary level of information, instruction and training.
14. Please see the following links to organisations that provide asbestos training……."
The Regulatory Framework
"21. If an inspector is of the opinion that a person—
(a) is contravening one or more of the relevant statutory provisions; or
(b) has contravened one or more of those provisions in circumstances that make it likely that the contravention will continue or be repeated,
he may serve on him a notice (in this Part referred to as "an improvement notice") stating that he is of that opinion. specifying the provision or provisions as to which he is of that opinion, giving particulars of the reasons why he is of that opinion, and requiring that person to remedy the contravention or, as the case may be, the matters occasioning it within such period (ending not earlier than the period within which an appeal against the notice can he brought under section 24) as may be specified in the notice."
"24. (1) In this section "a notice" means an improvement notice or a prohibition notice.
(2) A person on whom a notice is served may within such period from the date of its service as may be prescribed appeal to an [employment tribunal]; and on such an appeal the tribunal may either cancel or affirm the notice and, if it affirms it, may do so either in its original form or with such modifications as the tribunal may in the circumstances think fit.
82. (I) In this Act—
(c) "modifications" includes additions, omissions and amendments, and related expressions shall be construed accordingly:"
"10. (1) Every client shall ensure that
(a) every person designing the structure; and
(b) every contractor who has been or may be appointed by the client,
is promptly provided with pre-construction information in accordance with paragraph (2).
(2) The pre-construction information shall consist of all the information in the client's possession (or which is reasonably obtainable), including-
(a) any information about or affecting the site or the construction work;
(b) any information concerning the proposed use of the structure as a workplace;
(c) the minimum amount of time before the construction phase which will be allowed to the contractors appointed by the client for planning and preparation for construction work; and
(d) any information in any existing health and safety file.
which is relevant to the person to whom the client provides it for the purposes specified in (3).
(3) The purposes referred to in paragraph (2) are-
(a) to ensure so far as reasonably practicable the health and safety of persons-—
(i) engaged in the construction work,
(ii) liable to be affected by the way in which it is carried out, and
(iii) who will use the structure as a workplace..."
"20. (1) The CDM co-ordinator shall -
(a) give suitable and sufficient advice and assistance to the client on undertaking the measures he needs to take to comply with these Regulations during the project (including, in particular, assisting the client in complying with Regulations 9 and 16);
(b) ensure that suitable arrangements are made and implemented for the co-ordination of health and safety measures during planning and preparation for the construction phase, including facilitating-
(i) co-operation and co-ordination between persons concerned in the project in pursuance of regulations 5 and 6, and
(ii) the application of the general principles of prevention in pursuance of regulation 7: and
(c) liaise with the principal contractor regarding-
(i) the contents of the health and safety file.
(ii) the information which the principal contractor needs to prepare the construction phase plan, and
(iii) any design development which may affect the planning and management of the construction work.
(2) Without prejudice to paragraph (1) the CMD co-ordinator shall —
(a) take all reasonable steps to identify and collect the pre construction information:
(b) promptly provide in a convenient form to —
(i) every person designing the structure, and
(ii) every contractor who has been or may be appointed by the client (including the principal contractor).
such of the pre construction information is his possession as is relevant to each…."
"84 The role of CDM co-ordinator is to provide the client with a key project advisor in respect of construction health and safety risk management matters. They should assist and advise the client on appointment of competent contractors and the adequacy of management arrangements; ensure proper co-ordination of the health and safety aspects of the design process; facilitate good communication and co-operation between project team members and prepare the health and safety file.
85 Through early involvement with clients and designers, a CDM co-ordinator can make a significant contribution to reducing risks to workers during construction, and to contractors and end users who work on or in the structure after construction.
What CDM Co-ordinators should do
90 CDM Co-ordinators must:
(a) Give suitable and advice and assistance to clients in order to help them to comply with their duties, in particular:
(i) the duty to appoint competent designers and contractors; and
(ii) the duty to ensure that adequate arrangements are in place for managing the project;
(c) co-ordinate design work, planning and other preparation for construction where relevant to health and safety;
(d) identify and collect the pre-construction information and advise the client if surveys need to be commissioned to fill significant gaps;
(e) promptly provide in a convenient form to those involved with the design of the structure: and to every contractor (including the principal contractor) who may be or has been appointed by the client, such parts of the pre-construction information which are relevant to each;
(f) manage the flow of health and safety information between clients, designers and contractors:
(g) advise the client on the suitability of the initial construction phase plan and the arrangements made to ensure that welfare facilities are on site from the start;
(h) produce or update a relevant, user friendly, health and safety file, suitable for future use at the end of the construction phase.
93 Clients must provide designers and contractor who may be bidding for the work (or who they intend to engage), with the project - specific health and safety information needed to identify hazards and risks associated with the design and construction work. (the pre-construction information). For notifiable projects, clients are required to provide this information to the CDM co-ordinator. The CDM co-ordinator should check the information to ensure that it is complete, advise the client if there are any significant gaps or defects, and ensure that these are filled by commissioning surveys or by making other reasonable enquiries. The CDM co-ordinator should then provide designers or contractors who may be bidding for or preparing to carry out construction work on site, with such parts of the pre-construction information that are relevant to each."
The Decision of the Employment Tribunal
"40 The Tribunal has considered the position with regard to whether the respondent was right to reach the opinion that the appellant, as the co-ordinator, bore the legal responsibility of advising the client that a refurbishment and demolition survey should be carried out.
41 Two reports were included within the pre-construction information. Volume 4 of the PCI is dated 23 March 2010. The two surveys referred to were dated 2005, 2006 and there was a further survey dated 2008. These were what were then referred to as "type 2" surveys. It was clear from those that, before the work was carried out, a fully intrusive survey should be conducted. This was referred to as a type 3 survey which is now a refurbishment and demolition survey. The report from White Young Green Environmental stated
"Prior to demolition or major refurbishment it is recommended that a fully intrusive WYGE type 3 asbestos survey be conducted, under controlled conditions where appropriate."
This was within a lengthy type 2 asbestos survey which was an appendix to a lengthy Pre- Construction Information document. The Tribunal is not satisfied that the inclusion of these reports in this way shows that the appellant was complying with its duties under the regulations.
42 The Tribunal accepts that it is not the duty of the co-ordinator to commission a survey and that there was no legal duty upon the appellant to prevent exposure. However, it is clear that an important part of the role of co-ordinator is to advise the client if there are any significant gaps or defects and ensure that these are filled. This is made clear in the code of practice.
43 With regard to the reference in the Pre-Construction Information where there is contained a note that some bitumen based wrapping materials have been known to contain hazardous material (asbestos fibres), this is a general comment and it is not sufficient to fulfil the appellant's duties, It was submitted that the risk of exposure by others' negligence was too remote and that the appellant took all reasonable practicable steps. However, the breach by the appellant is the failure to advise the client, and others concerned, that no work should start until a survey had been carried out.
44 The evidence of Mr Dipper that discussions took place at several meetings and at a pre-tender presentation was not evidence before the respondent at the time the Improvement Notice was issued. The evidence of Mr Dipper was vague in this regard and the Tribunal does not accept that the answers given by Mr Dipper during his interview with the respondent and Ms McGarry would lead them to carry out further investigation.
45 The presentation to tenderers given by Mr Dipper was by reference to slides and each of those slides had a final section which stated missing information. This was a general heading and the Tribunal is not satisfied that Mr Dipper gave specific information with regard to the need for a further survey at the time of the presentation. This was not raised by Mr Dipper during the meeting with the respondent. Also, it was not specifically stated by Mr Dipper in his witness statement or supplementary statement that, on this occasion he had indicated that a further survey should be commissioned.
46 The Tribunal also finds that the appellant has not discharged its duty under the regulations by showing that the principal contractor indicated, at the Construction Phase Plan stage, that a survey was to be carried out. The Tribunal finds that appellant did not give suitable and sufficient advice in the Pre-Construction Information and during the planning and preparation for the construction phase in accordance with Regulation 20.
47 It was also submitted on behalf of the appellant that Nigel Watts [of NWL] had referred to a discussion when the Principal Contractor was present and everyone was in agreement as to what was required. The Tribunal does not accept that this would have complied with the duty, and Mr Watts' evidence was that the client relied on the CMD co-ordinator and that he expected it to advise the client if it needed to commission a refurbishment and demolition survey. The Tribunal is satisfied that it was appropriate for the respondent to conclude that the appellant had failed to comply with its duties under the regulations.
48 It is notable that four Improvement Notices were served. The Principal Contractor appeared to accept some blame in its report. In a complex contractual chain where there are a number of sub-contractors involved, it is not sufficient to absolve the CDMC contractor from its duty for it to rely on the fact that it thought, or even knew, that others were aware that an intrusive survey should be carried out. The Tribunal finds that, in these circumstances, it was the duty of the appellant to specifically inform the client and the principal and other contractors that a further survey should have been carried out before work commenced in the tunnel. The information available to the respondent, at the time the Improvement Notice was issued, was that there had been a failure by the appellant to perform this duty. There have been references to the fact that Mr Dipper was on his own and under some pressure and that further investigation should have been carried out. The Tribunal is satisfied that on the information before the respondent, she was right to conclude that the appellant was in breach of its duty. Even if further investigations had been carried out, the Tribunal has seen nothing that would lead the inspector or the Tribunal to conclude that the appellant had complied with its duty.
49 The references to Northumbrian Water as an 'intelligent client' and the fact that it was in possession of the reports from some years before the events in question do not alter the position. It was still the appellant's duty to provide the advice.
50 With regard to the fact that the client had an Appointed Person pursuant to the Control of Asbestos Regulations 2006 and that Mr Dipper had requested the asbestos management report, once again, this does not fulfil the appellant's duty under the regulations. It was submitted on behalf of the Appellant that the role of an Appointed Person is to advise the client on the asbestos surveys required to manage all of its assets. The role of the appellant was a specific role as the CDMC co-ordinator on this project. If there were gaps then it was the duty of the co-ordinator to ensure these gaps were filled and it cannot rely on alleged defects on the part of the client and, indeed, the principal contractor to absolve it from its duty.
51 The Tribunal was concerned about the precise terms of the Improvement Notice. The issue of competency was raised on many occasions and was of significance. The appellant was appointed by the client and was engaged on a framework contract, part of which was with regard to CDMC co-ordinator duties. A summary of CDM co-ordinator competences is set out for the client in the academic and professional qualifications of five people within the appellant including Stefan Dipper. The Tribunal heard evidence with regard to the NEBOSH (National Certificate in Construction, Health and Safety) and within that there is clear reference to the Control of Asbestos Regulations and other information in respect of asbestos. It may be that Stefan Dipper's answers during the investigation meeting were not entirely satisfactory with regard to the asbestos training he and his colleagues had undertaken. However, the Tribunal is not satisfied that this demonstrated a lack of competency to understand the requirement for a further survey to be carried out. The Improvement Notice referred to collecting the information without having the necessary level of competence to be able to give suitable and sufficient advice to the client as to whether the information provided was adequate in relation to the construction being undertaken.
52 It was clear on the face of the earlier reports within the Pre-Construction Information that a further survey should be carried out before the construction work commenced. The second report of White Young & Green noted that the tunnel was one of the areas not accessed and therefore not covered and it includes the comment that prior to demolition or major refurbishment it is recommended that a fully intrusive type 3 asbestos survey be conducted, under controlled conditions where appropriate. The Tribunal is not satisfied that any further training in respect of the adequacy of the asbestos survey reports would have led to any improvement in the position. The Tribunal finds that this was an issue that would be more appropriately dealt with by way of an Improvement Notice in respect of the systems failure by the appellant.
53 There was a lot of evidence and discussion with regard to the definition and standards of competency. The Tribunal heard that competency could be assessed by experience and qualifications. The respondent determined that there was a lack of competence as a result of the appellant's performance in the co-ordinator role. This was justified at the time in the light of the evidence that there was a lack of competence.
54 It could be concluded that the appellant had the required competencies on paper by way of experience and training but had performed incompetently on this occasion. The Tribunal has some difficulty in seeing how such a conclusion would be any different to the systems failure identified in the Improvement Notice served on the principal contractor save that the appellant was the co-ordinator and not involved in undertaking the project. There is little doubt that there was awareness of the need for a further survey to be carried out but the purpose of the requirement to appoint a CDM co-ordinator is that such co-ordinator should ensure that this does not get lost in the multiplicity of contracts and sub-contracts. Black and Veatch as principal contractor were aware and there was some confusion between them and Pyeroy. Northumbrian Water should have been aware that a further survey was necessary but they say they rely on the CDMC to ensure that this is in place. The point is that MWH should advise Northumbrian Water that no construction work should be carried out until the survey has been done and this should be made clear to everyone involved.
55 The Tribunal is entirely satisfied that it was appropriate to issue an Improvement Notice. However, identifying the reason as the appellant not having sufficient competence is not appropriate. The Tribunal is not satisfied that any further training with regard to asbestos surveys would lead to an improvement in the appellant's performance as the CDM co-ordinator. The Tribunal is satisfied that this is, in reality, a systems failure. There should have been measures in place to ensure that those carrying out duties or behalf of the appellant as the CDM co-ordinator ensured that the client had been given the appropriate advice and assistance as required within the regulations.
56 The Tribunal is satisfied that the appellant should have been required to put in place an appropriate and effective system whereby it was ensured that the client and all the contractors involved had been given sufficient advice and assistance at the Pre-construction Information stage that the construction work should not commence without the client having ensured that a refurbishment and destruction survey had been carried out in respect of the tunnel.
57 In the circumstances, the Tribunal's judgment is that the Improvement Notice issued by the respondent is affirmed with modifications, The Tribunal finds that it was appropriate for the improvement notice to be issued indicating that the respondent was of the opinion that the appellant as an employer was contravening the health and safety at work etc. Act 1974, Sections 2(1) and 3(1) Construction (Design and Management) Regulations 2007 Regulation 4 and 20 and the reasons for that opinion are modified as follows (using the respondents phraseology),
"You, having been appointed in the role of CDM co-ordinator by the client, have identified and collected the pre-construction information, namely the asbestos survey reports and have failed to give suitable and sufficient advice to the client as to whether the information provided was adequate in relation to construction work being undertaken."
58 The Tribunal has not felt it necessary or appropriate to complete a schedule to accompany the modified Improvement Notice and, should they wish, the parties can discuss the contents of any such schedule between themselves."
Ground 1: breach of duty
(1) The CDMC must take reasonable steps to identify and collect the PCI and supply it to all designers involved in the project and any contractor who is or may be appointed by the client (Regulation 20(2)). The PCI has to be prepared before putting the main contract out to tender. The content of the PCI must comply with Regulation 10(2) so as to include any information affecting the site or the construction work which is relevant to ensure so far as reasonably practicable the health and safety of persons engaged in the construction and of persons using the site as a workplace (Regulations 10(2) and (3)). This is the specific health and safety information needed to identify hazards and risks associated with the design and construction work (ACOP paragraph 93). It is not confined to such information as is already in the client's possession but includes also information which is "reasonably obtainable" (Regulation 10(2)). This duty to identify and collect relevant information which is not within the client's possession but is reasonably obtainable requires the CDMC to advise the client if surveys need to be commissioned to fill significant gaps (ACOP paragraph 90(d)). The CDMC should check the information is complete, advise the client if there are any significant gaps or defects, and ensure that these are filled by the client commissioning surveys or by making other reasonable enquiries (ACOP paragraph 93).
(2) The CDMC also has an obligation to give suitable and sufficient advice to the client on undertaking the measures the client needs to take to comply with the Regulations (Regulation 20(1) (a)), including the client's duties to ensure that all those concerned in the design and those tendering for the principal contract are provided with compliant PCI (Regulation 10(1)). This obligation also requires the CDMC to check the information and advise on significant gaps as set out in paragraphs 90(d) and 93 of ACOP.
(3) The CDMC also has an obligation to ensure that suitable arrangements are made and implemented for the co-ordination of health and safety measures during planning and preparation for the construction phase (Regulation 20(1) (b)). This obligation is not confined to the content of the PCI. It is capable of requiring the CDMC to communicate not only with the client and main contractor but in appropriate circumstances with all contractors whom it knows to be involved or potentially involved in the project.
(4) In these respects the CDMC is a key project adviser to the client in respect of construction health and safety risk management matters (ACOP paragraph 84).
Ground 2: modification impermissible