MWH UK Ltd v Victoria Susan Wise (HM Inspector of Health & Safety)

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeThe Hon. Mr Justice Popplewell
Judgment Date24 February 2014
Neutral Citation[2014] EWHC 427 (Admin)
Docket NumberCase No: CO/761/2013
Date24 February 2014

[2014] EWHC 427 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

The Hon. Mr Justice Popplewell

Case No: CO/761/2013

Between:
MWH UK Limited
Appellant
and
Victoria Susan Wise (H.M. Inspector of Health & Safety)
Respondent

John Cooper (instructed by S V Armstrong Ltd) for the Appellant

Cyril Adjei (instructed by Addleshaw Goddard LLP) for the Respondent

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

The Hon. Mr Justice Popplewell The Hon. Mr Justice Popplewell

Introduction

1

This is an appeal against the decision of the Newcastle Employment Tribunal dated 12 December 2012, modifying an improvement notice dated 7 November 2011 issued by the Respondent inspector of health and safety pursuant to s.21 of the Health and Safety at Work Act 1974 ("the Improvement Notice").

2

The Appellant ("MWH") was the construction design and management co-ordinator for a project of refurbishment carried out for Northumbrian Water Limited ("NWL") known as the Jarrow Inlet and Siphon project. The project involved the refurbishment of services connecting NWL's facilities on the south of the River Tyne at Jarrow with those on the north at Howdon. During the course of the project it was found that asbestos was present to which employees of those involved in construction had been exposed. The Improvement Notice found that MWH had collected the pre-construction information 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 risk of presence of asbestos. The Improvement Notice required training by way of remedy.

3

The Employment Tribunal upheld the Improvement Notice but with modifications. It found that MWH had been in breach of its duties under the regulations in failing to advise NWL that no construction work should have been carried out until a full refurbishment and destruction asbestos survey had been obtained. It attributed this breach not to a lack of competence, but to a failure to have any system in place to ensure that such breach did not occur. The Tribunal did not amend the schedule to the Improvement Notice so as to identify the particular steps required of MWH in relation to such systems failure. It left the contents of the schedule to be discussed and agreed by the parties in the light of its judgment.

4

On this appeal MWH advances three grounds for overturning the Tribunal's decision and cancelling the Improvement Notice:

(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.

The Facts

5

The following facts were found by the Tribunal or were common ground before me.

6

NWL engaged MWH to undertake planning duties in relation to two projects which became combined into the single project of refurbishment of the Jarrow service tunnel, which connects the Jarrow primary treatment works and the Howdon waste water treatment works through two 50 metre shafts on either side of the River Tyne and a 500m tunnel beneath it. Prior to contracts going out to tender, MWH was appointed as construction and design management co-ordinator ("CDMC") in accordance with the Construction (Design and Management) Regulations 2007 ("the CDM Regulations"). Under the Regulations, the client, NWL, is responsible for providing pre-construction information ("PCI") to all designers involved in the project and any contractor who is or may be appointed by the client. The PCI therefore has to be prepared before putting the main contract out to tender. The PCI was collected by MWH and initially provided by it to contractors in September 2009. Revised versions were supplied by MWH to contractors on 19 February 2010 and 23 March 2010.

7

The PCI included three relevant asbestos surveys. Two were by Lucion one dated March 2005 in respect of the Siphon part of the project and one dated 18 November 2008 in respect of the management of asbestos during the general occupation of the above ground buildings at Jarrow. Both were what were then called "type 2" surveys, which are now called "management surveys". Such surveys are of a less comprehensive nature than what were then called type 3 surveys, which have now been replaced by "refurbishment and demolition surveys". Neither Lucion report made reference to the tunnel.

8

Also within the PCI was a report by White Young Green Environmental ("WYGE") dated April 2006 in respect of the Jarrow inlet. That was also a type 2 survey, within which it was 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."

9

Also within the PCI was a reference to "siphon pipelines (external)" stating the following:

"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)."

10

Shortly after the second revision of the PCI had been provided, on 26 March 2010 Black and Veatch Limited ("BVL") was appointed as the principal contractor. Shortly thereafter BVL issued its construction phase plan ("CPP"). This referred to an intention to carry out a more detailed asbestos survey. The CPP went through two further revisions before 10 May 2010 when BVL instructed a specialist asbestos contractor, Pyeroy, to perform a walk through inspection of the tunnel for asbestos. MWH and NWL were told of this on 19 May 2010. Pyeroy tested three expansion joints (this being BVL's decision) which they notified had given negative asbestos results, but with a specific email note recording that access had only been gained to the top level.

11

BVL, as principal contractor, subcontracted work to Merit Process Engineering Ltd ("MPEL"). MPEL subcontracted the shotblasting of some pipe fittings to UTS Engineering Ltd ("UTS"). After work had commenced at MPEL's workshop in 2011, it was found that the pipes which were being shotblasted had bitumen lining containing asbestos fibres. Work was stopped in the tunnel and at UTS on or about 5 May 2011. Samples were taken from fittings which might be contaminated with asbestos. These were analysed on 11 May 2011 and found to contain asbestos fibres. Asbestos was found not only in the pipe wrappings but also in the brackets.

12

Improvement Notices were issued to UTS, MPEL and BVL. Those to the two subcontractors, UTS and MPEL, found that they did not have an effective system in place to ensure a suitable and sufficient assessment (as to whether asbestos, what type of asbestos, contained in what material, and in what condition was present or liable to be present) was carried out before undertaking work which exposed or was liable to expose their employees to asbestos. Each notice required the subcontractor to introduce an "auditable effective system of management and control to ensure that a suitable and sufficient assessment as to whether asbestos, what type of asbestos, contained in what material and what condition is present or is liable to be present, is carried out before you undertake any work which exposes or is liable to expose your employees to asbestos".

13

The Improvement Notice issued to BVL as the main contractor found that it had undertaken the construction project without ensuring a suitable and efficient assessment for asbestos had been carried out which enabled construction work to be started, so far as reasonably practicable, without risk to health from exposure to asbestos fibres. The schedule to BVL's Improvement Notice referred to consideration being given to numbered points relating to BVL having a system in relation to the carrying out of asbestos surveys.

14

On 28 October 2011 the Respondent, Ms Wise, attended a meeting at the offices of MWH together with a colleague from the Health and Safety Executive. She held discussions with Mr Stefan Dipper, who was the CDM contact on the project. Ms Wise concluded that MWH had failed in its duty to give suitable and sufficient advice to the client on undertaking the measures it needed to take to comply with the client's duties within the Regulations, and stated that in her opinion MWH did not have the necessary level of competence to perform the requirement imposed by Regulation 20, by virtue of which it was in breach of Regulation 4.

15

In consequence, the Improvement Notice dated 7 November 2011 was served on MWH. The Improvement Notice itself provided:

"…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...

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