Dacorum Sports Trust Ltd (A company Ltd by guarantee) v Ms R Connolly (Environmental Health Officer, Dacorum Borough Council): 3301877/2020 and 3302639/2020

EMPLOYMENT TRIBUNALS

Case No 3301877/2020, 3302639/2020

Between

Dacorum Sports Trust Limited (A company limited by guarantee)Claimant

Ms Rebecca Connolly (Environmental Health Officer, DacorumRespondent

Before

Employment Judge Bedeau

Mr I Wright (instructed by Counsel) for claimant

Mr G Menzies (instructed by Counsel) for respondent

Date 14 July 2021

JUDGMENT

The claimant’s application for proceedings before this Employment Tribunal to be stayed pending the outcome of criminal proceedings, is refused.

REASONS

[1]The appellant, Dacorum Sports Trust Limited, is a charity and a company limited by guarantee. It operates sports facilities, including a climbing wall and a sports development service, from premises referred to as the XC, Jarman Park, Hemel Hempstead.

[2]This case is about climbing activities carried out by the respondent.

[3]In its claim forms presented to the tribunal on 22 January 2020 and on 21 February 2020, it appeals against the issue of a Prohibition Notice and an Improvement Notice issued on 6 January 2020 and 8 January 2020, respectively, by Ms Rebecca Connolly, Environmental Health Officer, employed by Dacorum Borough Council. She is the respondent in these

[4]In the response presented to the tribunal on 18 March 2020, the respondent maintains that both the Prohibition Notice and Improvement Notice were correctly issued.

[5]At the preliminary hearing, in private, held on 9 April 2020, before Employment Judge R Lewis, the case was listed for a final hearing over four days from 5-8 July 2021 before a full tribunal. In addition, the case was listed for a second preliminary hearing, in public, for three hours, which is now before me. The issues for me to hear and determine are set out as follows:5.1 any application to stay in the event that criminal proceedings are then live;

5.2 the respondent’s application to strike out paragraph 13 of the Details of Claim, on grounds of being misconceived having no reasonable prospects of success;

5.3 to set the case management timetable required to bring the matter to hearing, and

5.4 to deal with any preliminary or case management issues.

[6]Orders were issued to ensure an effective preliminary hearing today.

[7]The parties stated that they did not wish to call any oral evidence at this preliminary hearing.

[8]Fortunately, I have the benefit of the same counsel who were present at that hearing. In accordance with the Employment Judge’s order, they served their written submissions.

Background

[9]The Prohibition Notice was issued under section 22 Health and Safety at Work Act 1974, “1974 Act” prohibiting certain activities carried on under the control of the appellant which involves the risk of personal injury.

[10]The Improvement Notice was issued under section 21, in respect of the unreasonable and inadequate risk assessments having been carried out by the respondent.

[11]The appellant appeals under section 24, 1974 Act.

[12]It is not disputed that on 9 July 2017, a climber fell 8 metres from the climbing wall onto the ground suffering skin burns and a fracture. Over one year later, on 5 October 2018, another climber fell 13 metres while climbing the wall sustaining a broken pelvis, broken leg, broken lumber vertebrae, broken ribs, and sternum.

[13]I understand that the wall is fitted with eight, of what is described as, autobelay lines. These lines allow climbing to take place on the higher parts of the wall without the need for a climbing partner. By means of a magnetic braking system, the belay lowers the climber when they let go of the wall and automatically controls the descent to the ground.

[14]To use the belay the climber has to clip onto it. To climb without being clipped on is called “free climbing”.

[15]In response to the Prohibition Notice, the appellant contends that it no longer allows for free climbing. Its case is that both incidents in question, occurred when experienced rope competent climbers fell from the climbing wall sustaining injuries. They fell because they did not clip themselves onto an auto-belay device which would have provided a line controlled automatic descent to the ground. No other incidents have occurred on the climbing wall at the XC.

[16]Under section 22, 1974 Act, in relation to a Prohibition Notice, this applies to any activities being or likely to be carried on by or under the control of any person. As the appellant has already stated free climbing is expressly prohibited at the XC, its first ground of appeal is that it is not carrying on nor likely to carry on the described activity by itself or under its control and has taken measures to prevent such an activity.

[17]The second ground of appeal is with reference to the breach of section 3(1) of the 1974 Act and whether it is relevant and necessary for the appellant to adduce evidence in relation to the “reasonably practicable” requirement? This issue was resolved during the course of the hearing before me to the extent that, without prejudice to the respondent, reference in the Prohibition Notice to breach of section 3(1) will be removed. The respondent will ask the tribunal to affirm the notice without reference to s.3(1). The parties agreed the wording to be used.

[18]The above paragraph, for the sake of clarity, is referred to as second ground of appeal in paragraph 13 of the claim form, which is no longer an issue for me to determine in accordance with Employment Judge Lewis’ directions.

[19]The third ground of appeal is that there is no risk of serious personal injury arising from the activity which is not being permitted to be carried on in any event.

[20]The tribunal is required to focus on the circumstances on the ground at the date of service of the notice.

[21]In relation to the Improvement Notice, the appellant will rely on the reviewed risk assessments at the full hearing and the expert advice from its consultants. I am told that two risk assessments were carried out and considered to be suitable and sufficient by the appellant and its advisers.

[22]The respondent, in considering the first ground of appeal, contends that the free climbing activity is an activity carried on under the control of the appellant as it controls activities on its own wall. The extent of its control is such that it could have prevented such a dangerous activity but did not do so. It was in a position to control such an activity by locking the auto-belay and deploying staff to ensure that climbers do clip on when unlocking autobelay or otherwise, by increased supervision. It was able to exercise sufficient control to ensure that children were clipped on before they attempted to climb the wall. Further, it avers that such an activity involves the risk of serious personal injury. The Prohibition Notice, therefore, was properly issued.

[23]The approach in relation to the second ground appeal has been resolved as set out above.

[24]In relation to the third ground of appeal, the assertion by the appellant that the element of risk of serious personal injury was not present, is denied. Falling from a height off the wall resulted in serious personal injury on two occasions. It was an obvious risk and the fact that an enforcing officer may seek to avoid taking formal enforcement action by attempting to engage with the duty holder, initially, does not change the fact that falling from a height poses a risk of serious personal injury. Therefore, it submits that the condition for the service of a Prohibition Notice, is met.

[25]In relation to the Improvement Notice, the grounds of appeal refer to the two risk assessments being suitable and sufficient. The respondent contends that the assessments are required by virtue of Regulation 3(1)(b) of the Management of Health and Safety Regulations 1999, which should be suitable and sufficient for the purpose of identifying the measures which need to be taken to comply with the requirements of relevant statutory provisions, that is, health and safety legislation. The respondent challenges the two risk assessments on the basis that while they do identify the hazard, that is, climbers not clipping on, they do not identify the risk associated with the hazard, namely serious personal injury or death; they do not go and evaluate the likelihood of such serious personal injury or death occurring; further, the risk assessments do not identify that existing control measures have not been effective in bringing the risk down to the lowest, reasonably practicable level, which would be locking the auto-belays and providing more comprehensive supervision by staff; and the assessments further fail to identify how climbers can be safely brought to the ground.

[26]I am told that on or around 7 December 2020, a draft summons was prepared by the respondent which will charge the appellant with the offence of breach of section 3(1) of the 1974 Act. The appellant was informed of intended criminal proceedings on or around 8 December 2020. This was anticipated by Employment Judge Lewis at the earlier preliminary hearing.

[27]The appellant’s legal representatives were informed on 2 September 2020, by Dacorum Borough Council, that following the Council’s investigation into alleged breached of health and safety legislation, it intended to pursue criminal charges against the appellant. This led the appellant’s legal representatives to write to the Tribunal on 2 October 2020, informing the Tribunal of the Council’s intention. In their letter they applied for a stay of these appeal proceedings pending the outcome of the criminal case.

[28]The application was opposed by the Council in its letter dated 21 October 2020. The statutory provisions

[29]An Improvement Notice is suspended pending the outcome of an appeal, section 24(3) of the 1974 Act.

[30]It is useful to cite the relevant provisions: “3 – General duties of employers and self-employed persons other than their employers(1) It shall be the duty of every employer to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment who may be affected are not thereby exposed to risks to their health or safety.

(2) ………………… (2A) A description of undertaking included in regulations under subsection (2) may be framed by reference to - (a) The type of activities carried out by the undertaking, where those activities are carried out or any other feature of the undertaking; (b) Whether persons who may be affected by the conduct of the undertaking, other than the self-employed person (or his employees), may thereby be exposed to risks to their health or safety.

(3) In such cases as may be prescribed, it shall be the duty of every employer and every self-employed person, in the prescribed circumstances and in the prescribed manner, to give to persons (not being his employees) who may be affected by the way in which he conducts his undertaking the prescribed information about such aspects of the way in which he conducts his undertaking as might affect their health or safety.” “Section 21 Improvement notices 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 and appeal against the notice can be brought under s.24) as may be specified in the notice. 22 Prohibition notices (1) This section applies to any activities which are being or 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, apply. (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 involve 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 which in his opinion give or, as the case may be, will give rise to the said risk; (c) where 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 as 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 provisions so specified in pursuance of paragraph (c) above have been remedied.

(4) A direction contained in a Prohibition Notice in pursuance of subsection (3)(d) above shall take effect - (a) at the end of the period specified in the notice; or (b) if the notice so declares, immediately.”

[31]Section 20 deals with the powers of the inspector.

[32]Regulation 3, Management of Health and Safety at Work Regulations 1999, sets out the duty and content of a risk assessment. It provides: “(3) Risk assessment (1) Every employer shall make a suitable and sufficient assessment of- (a) the risks to the health and safety of his employees to which they are exposed whilst they are at work; and (b) the risks to the health and safety of persons not in his employment arising out or in connection with the conduct by him of his undertaking, For the purpose of identifying the measure he needs to take to comply with the requirements and prohibitions imposed upon him by or under the relevant statutory provisions…” Relevant cases

[33]Should the appeal be stayed pending the outcome of criminal proceedings? Both parties have referred me to the case of Akciné Bendrové Bankas Snoras (In bankruptcy) v Mr Vladimir Antonov , Mr Raimondas Baranauskas

[2013] EWHC 131 (Comm)

. This is a judgment of the Commercial Court of the Queen’s Bench Division of the High Court of Justice. Civil proceedings were brought by the bank against Mr Antonov and, at the time, there were extradition proceedings. He applied for a stay of the civil proceedings until after the final determination of the extradition proceedings against him.

[34]This came before Mrs Justice Gloster, DBE. In relation to the issue of whether to grant a stay of the civil proceedings, Her Ladyship referred to the relevant legal principles. First, whether to grant a stay involves the exercise of a court or tribunal’s discretion which is a power that has to be exercised with “great care and only where there is a real risk of serious prejudice which may lead to injustice.” Second, the discretion has to be exercised by reference to the competing considerations between the parties and the court has to balance justice as between the two parties; the claimant has a right to have its civil claim decided; the burden lies on a defendant to show why that right should not be delayed. Third, a defendant must point to a real, and not merely notional, risk of injustice. In this context her Ladyship referred to the judgment in the case of Panton v Financial Institution Services Limited

[2003] UKPC 8

at page 11, that is: “A stay would not be granted simply to serve the tactical advantages that the defendants might want to retain in criminal proceedings. The accuser’s right to silence in criminal proceedings was a factor to be considered, but that right did not extend to give a defendant as a matter of right the same protection in contemporaneous civil proceedings. What had to be shown was the causing of unjust prejudice by the continuance of the civil proceedings.”

[35]Fourth, the fact that a defendant has a right to remain silent in criminal proceedings and would, by serving a defence in civil proceedings, be giving advance notice of his or her defence, carries little weight in the context of an application for a stay of civil proceedings. There is no right to invoke the privilege against self-incrimination in relation to putting in a defence as compared with the right in civil proceedings to invoke the privilege where a defendant is being interrogated, being compelled to produce documents or cross examined, V v C [2002] C.P. Rep. 8, Waller LJ, at paragraphs 37 and 38.

[36]Fifth, in criminal proceedings, in England and Wales, a defendant is expected to outline a positive defence at an early stage.

[37]The disclosure of a defence in civil proceedings is unlikely to disadvantage a defendant in criminal proceedings.

[38]Sixth, it is also legitimate, when balancing the competing considerations between the parties, to take into account that a positive defence is likely to exculpate, rather than incriminate, a defendant, Waller LJ, paragraph 39.

[39]Seventh, it is not enough that both the civil and criminal proceedings arise from the same facts, or that the defence in the civil proceedings may involve the defendant taking procedural steps such as exchanging witness statements and providing disclosure of documents which might not be imposed upon them in the criminal proceedings.

[40]Eighth, the defendant has a choice between remaining silent in the civil proceedings or risk giving an indication of his defence which may be used by the prosecuting authorities. Harshness of such a choice did not provide a god ground for staying civil proceedings.

[41]Ninth, in the event that the court were to be satisfied that there would be a real risk of serious prejudice leading to injustice if the civil proceedings continued, then the proceedings should nevertheless not be stayed if safeguards can be imposed in respect of the civil proceedings which provides sufficient protection against the risk of injustice.

[42]In the earlier case before the Employment Appeal Tribunal, His Honour Judge McMullen QC, in the case of Mindimaxnox LLP v Gover and Ho

UKEAT/0225/10/DA

, a case in which the Employment Judge decided not to stay employment proceedings and to allow them to run concurrently with similar High Court proceedings, the judgment was overturned on appeal.

[43]In paragraph 41 HHJ McMullen stated: “Generally, Crown Court proceedings will take precedence over other proceedings but the implication is that there would be some sort of concurrent proceedings would go on together.”

[44]In paragraph 45 he stated the following: “45. In my judgment it is not in accordance with the overriding objective to have concurrent proceedings over exactly the same factual territory except for the unique tort of unfair dismissal in the employment tribunal. The factual territory and the legal principles relating to the dismissal, but not the unfairness of it, are the same or at least substantially the same. It cannot be right that there are two sets of proceedings on foot, each requiring teams of lawyers to be respectively in the London Central Employment Tribunal and in the Queen’s Bench Division on different days. Take this very case. In the employment tribunal there is to be a case management discussion then a PHR on one of the issues, if not more, and then in the High Court there is a PHR on the confidentiality issue and then a trial. It cannot be in accordance with the overriding objective that duplicate proceedings are on foot.”

[45]The Mindimaxnox LLP case was decided before the Snoras case and it is not referred to in Snoras. Snoras is the more relevant as it concerns extradition proceedings and staying civil proceedings whereas Mindimaxnox LLP was about concurrent civil proceedings.

[46]Section 11(1) Civil Evidence Act 1968 allows for a subsisting conviction to be admitted in evidence in civil proceedings “where to do so is relevant to any issue in those proceedings.”

[47]By virtue of a conviction, a person is taken “to have committed the offence unless the contrary is proved”, section 11(2) Submissions

[48]Mr Wright submitted that the tribunal should take into account eight factors which he adumbrated in his written submissions. He submitted, firstly, that the overriding objective of the tribunal rules is to enable the tribunal to deal with cases fairly and justly which includes dealing with cases proportionately and saving expense. It is undesirable to have two sets of closely linked proceedings running concurrently, therefore, one set of proceedings should be stayed. He was referred to paragraph 41 by His Honour Judge McMullen QC in the Mindimaxnox LLP case in support of this submission.

[49]Secondly, he submitted, that the criminal courts are more appropriate to consider the complaints first. Any criminal conviction is serious, and it is appropriate that the appellant should have a first opportunity to defend the charges whether at the Magistrates Court what the Crown Court. It is a matter of reputational and commercial damage for the appellant if it is convicted which supports the criminal proceedings being heard first.

[50]Thirdly, it is common ground that there is a significant overlap between the issues to be decided in the two sets of proceedings. He submitted that the investigation of the facts and matters which give rise to the service of the notices are the same as that which give rise to the issue of any summons. Further, that the breaches of statutory duty included in the two enforcement notices are very likely to be the breaches of duty alleged in the criminal proceedings. The criminal court and the tribunal must both decide whether the appellant was in breach of regulation 3 and section 3(1).

[51]Fourthly, any finding by the criminal court of breach of statutory duty by the appellant will determine that issue because of the differences in the standard of proof between the criminal court and the tribunal. It is not the case the other way round. A finding of breach by the tribunal may influence the decision on that issue but it will not be decisive.

[52]Fifthly, the doctrine of res judicata will apply to proceedings regarding the issue of breach and any facts found relating to the activities carried on, or not carried on by the appellant. Even if the doctrine does not strictly apply, the earlier findings will impinge on the tribunal hearing the case second which will find it difficult not to be bound by the findings. He submitted that the criminal court with stricter rules of evidence, is the more appropriate forum to find facts and decide mixed questions of fact and law than the tribunal. This is not the case where the tribunal has particular expertise to decide proceedings, such as a discrimination claim first.

[53]Sixthly, there is no particular urgency to hear the appeals at this stage. The Prohibition Notice remains in force until it is cancelled by the tribunal at the full appeal hearing.

[54]Mr Wright further submitted that, in relation to the degree of complexity of the issues arising between the two sets of proceedings, there is a substantial overlap. Both the tribunal and the criminal court will have to consider the nature and extent of the activities carried on by the appellant. They will have to consider breach of statutory duty. It is to be preferred that the criminal case would go first as there are strict rules concerning evidence in the court and the respondent would serve its documents and evidence first. The appellant would, therefore, be informed of the case it has to meet. If the tribunal proceeds first, it would be usual for documents and evidence to be exchanged thereby giving the respondent a “dry run” at the case before criminal proceedings commence.

[55]Mr Wright went on to submit that it is more appropriate that the criminal courts consider the matters complained about first. A criminal conviction is a serious matter, and it is appropriate that the appellant should have a first opportunity to defend the charges in the criminal court. It is a matter of reputational and commercial damage for the appellant if it is convicted. He referred to the Mindimaxnox case and cited paragraph 41 of HHJ McMullen who stated that Crown Court proceedings will take precedence over other

[56]In addition, Mr Wright submitted, that if the summons is shortly to be issued, then it is to be expected that a first hearing will be listed by the Magistrates Court before July 2021. This should be contrasted with the possibility that the case, already listed for hearing on 4 July 2021, may not take place due to the frequency at which tribunal hearings are postponed.

[57]He submitted that there is a strong case for staying the appeals until after the determination of criminal proceedings. Accordingly, the appellant’s application should be granted.

[58]I have taken into account the submissions by Mr Menzies, counsel on behalf of the respondent, and after considering all relevant matters, I accepted his submissions in my judgment.

Conclusion

[59]Neither the Prohibition Notice nor the Improvement Notice was included in the joint bundle of documents. I gave instructions to the clerk that the parties be asked to send to the tribunal, for my benefit, the notices but as at the date this judgment has been signed by me, I have not had sight of the notices. I have, however, been given sufficient information from counsel to determine their content.

[60]The appellant’s position has changed slightly, in that, the section 3, 1974 Act provision has been removed from the Prohibition Notice. The tribunal will, therefore, not be concerned about whether the appellant did all that was reasonably practicable? This will be considered during the criminal

[61]The issues the tribunal will be considering in relation to the Prohibition Notice, section 22(2), are whether the activities were under the control of the appellant, and was there a serious risk of personal injury? The respondent does not have to show a breach of the law.

[62]In relation to the Improvement Notice, section 21, the issue is whether there is a contravention of relevant statutory provisions?

[63]I am satisfied that the issues before a criminal court are: whether the appellant adopted a hierarchical approach to prevention; could it have extended its safety provisions to everyone including children and noncompetent climbers; was it reasonably practicable to have in place a system whereby all climbers were permanently supervised; the provision of mechanical equipment for ascending and descending; the provision of a facility for users to give comments on safety; the monitoring of closed-circuit television; regular risk assessments; and the removal of risks on the ground, amongst others.

[64]The issues in the Prohibition Notice and Improvement Notice will be different from what the criminal court and tribunal will consider.

[65]I am satisfied that res judicata will only arise if criminal proceedings took place first, section 11 Civil Evidence Act 1968. Having regard to Tolley’s Health and Safety handbook, at page 63, that “The fact that an employment tribunal has upheld a notice is not binding on the Magistrates court hearing a prosecution under the statutory provision of which the notice alleged contravention; it is necessary for the prosecution to prove all the elements in the offence.”

[66]Even if the tribunal hear the appeal first, the requirements of section 3 would have to be proved by the respondent in criminal proceedings as the standard of proof is different and much higher than before a tribunal where it is on the balance of probabilities. In any event, the tribunal will no longer be concerned about breach of section 3.

[67]I accept that the appellant will be calling witnesses who are likely to be the same witnesses to be called criminal proceedings, as well as the same or substantially the same documentary evidence, and will be calling expert evidence in relation to the Improvement Notice and may do so in relation to section 3 in criminal proceedings. I can quite understand its reluctance to disclose its hand in tribunal proceedings some time prior to the criminal case. I bear in mind that in criminal proceedings a defendant is required to give an outline of a positive case prior to the start of the trial. In Snoras, it was held that the disclosure of a defence in civil proceedings is unlikely to disadvantage a defendant in criminal proceedings. Further, a positive defence is likely to exculpate, rather than incriminate, the appellant.

[68]I do not accept that there is a risk of self-incrimination before a tribunal in this case as self-incrimination only arise as if the witnesses are compelled to produce evidence and that the production of that evidence is likely to give rise to the risk of self-incrimination. That had not been demonstrated before me. What the appellant will be doing would be to adduce evidence which would be purely exculpatory and not self- incriminating. In any event, a tactical reason for choosing to disclose evidence at the criminal trial but not before the tribunal, according to Snoras, is not a good reason for a stay. Further, I was not told what questions the appellant’s witnesses, which, if answered, may incriminate them.

[69]The burden is on the appellant, who is seeking a stay, to show why a party’s right to have a claim decided, should be delayed? Granting a stay would be to deny the respondent the opportunity to have the case brought against it dealt with in a suitable timescale.

[70]The appeal is listed for hearing over 4 days from 5 to 8 July 2021 before a full tribunal. I am told that the criminal trial is likely to take place in the Crown Court and may either by in late 2021, in 2022 or early 2023. Given the current Covid-19 pandemic, I am aware that the criminal courts are not operating at full capacity due to restrictions preventing the possibility of infection. There is, therefore, a consequent delay in cases being heard.

[71]I am satisfied that a criminal trial in this case is likely to take place either in late 2021 or sometime in early 2022.

[72]The appellant must show a “real risk, and not merely in notional, risk of injustice”. The appellant has not produced evidence of a real risk of injustice. I have come to the conclusion and do apply the judgment of Mrs Justice Closter in Snoras, that there is not a real risk of serious prejudice which may lead to injustice were I to allow the appeal hearing to proceed first.

[73]Paragraph 41 of HHJ McMullen judgment in the Mindimaxnox case is, in my judgment, a general rule and is not applicable in every case. The Snoras case is more on point as it requires a tribunal to engage in a balancing exercise.

[74]Accordingly, the appellant’s application for a stay is refused.

[75]Having regard to my judgment, I have, consequently, issued further case management orders for the final hearing, in a separate document.

[76]There are no further preliminary issues to hear and determine.

The Facts

[77]In response to the Melvin Incident, an initial visit to the XC premises was undertaken by the Respondent on 10 October 2018 with her Team Leader. During this visit information was gathered and the accident site was inspected. A copy of the preliminary Arrampica report was provided to her during the visit. She became aware that for a person climbing by themselves, no checks were done by staff to ensure that person was clipped into an autobelay (though 2 hourly floor walking did take place).

[78]She sent a letter to Mr Melvin on 19 October, and received the response we have referred to above. Further information was requested and received from the Appellant and the final Arrampica report and relevant risks assessments were received in December 2018. A case review was undertaken around 16 January 2019, and the information received to that date was reviewed. The Respondent formed the opinion (and we agree) that the Arrampica (preliminary and final) reports identify that the risk of failing to clip into the auto belay was known by the Appellant and within the industry.

[79]She noted the control measures which had been discussed as possibilities within Step 3 of the Arrampica final report, and that only reshuffling signage had been adopted.

[80]In February 2019, the Appellant was invited to an interview under caution. It elected instead to submit the voluntary statement to which we have referred, and supplied the Respondent with the document which appears at pages 220 to 224 32 of 50 of bundle. The Respondent formed the opinion (and we agree) that this version of the risk assessment had not adopted (and did not mention) the further control measures suggested in the Arrampica reports.

[81]In April 2019, the Respondent’s team leader emailed Dan Middleton, Technical Officer for British Mountaineering Council (“BMC”). Mr Middleton’s response included the following extracts (our emphasis):81.1 Operators “should ensure that users of any autobelays understand their correct use and how to climb safely using one, and this should be conﬁrmed prior to use as part of the registration process. If the facility is a roped climbing facility, it is generally deemed sufﬁcient to provide best practice advice next to the autobelays, as roped climbers will already know how to put on a harness and safely operate a locking carabiner.”

81.2 “Climbers using autobelays climb alone and therefore cannot use buddy checks as roped climbers can do, which are proven to be a very effective method of preventing accidents caused by human factors. Therefore it is considered good practice to either take steps to warn users in case they have made an error and failed to connect themselves to the autobelay, and/or to prevent them from accessing the climb until they have.”

81.3 Having referred to control measures including signage, line of sight from reception, and auto-belay barriers, he noted: “Floorwalking. This is considered a main line of defence within the industry to help mitigate risk and can act as an additional source of training for users, if the floorwalking staff are knowledgeable and suitably trained”.

[82]In May 2019, having requested them, the Respondent received the spreadsheets including notes of floorwalking and maintenance checks (only brief extracts from which have been included by the parties in the bundle).

[83]In June 2019, the Respondent attended the premises with her team leader, and spoke to Mr Kirkpatrick about floorwalking, her notes of which appear in the bundle.

[84]A further invitation to an interview under caution was made, and the Appellant responded with its October 2019 statement. Some more information about the autobelays was requested and received, and, in December 2019, a decision was made to issue the notices which – in due course – were issued in January 2020.

[85]The time taken between October 2018 and January 2020 to move from first site visit to issuing of notice was not because the Respondent had formed the opinion at any stage that the conditions for serving a notice were not met.

[86]Furthermore, our finding is that there was no failure on the Respondent’s part to alert the Appellant to the fact that she was concerned that the measures which they had in place might not be – in her opinion – adequate.

[87]Her covering letter, as well as discussing the legalisation, the contents of the Appellant’s statements, and other documents, stated: “Given the reluctance of the business to modify their practices despite the two aforementioned incidents, the risk of significant person injury still exists. This is the reason for the health & safety 33 of 50 notice prohibiting free climbing on the walls at the XC Jarman Way and an improvement notice is being served on the business to review and Improve the risk assessments.” Experts

[88]We will largely confine our comments on what the experts told us to the analysis section of our decision. We note that of the two, Mr Petherick had more knowledge of climbing and the climbing wall industry. His extracts from the ABC and BMC documentation were very helpful. He was also able to give additional background information on incidents that had resulted in serious injuries or death in the last few years, including those mentioned in the Arrampica reports (which Ms Hemmant confirmed had come to her attention each time via trade updates).

[89]We accept that, as described in 2.7 of Mr Petherick’s report (and mentioned in the Appellant’s statements to the local authority) the Appellant has (since around 2015) used the services of Arrampica Ltd as technical adviser to review procedures and provide training in accordance with industry standards. We note that the risk assessments used by the Appellant are on the stationery of another (more generalist) adviser, and they do not include the matrix shown at figure 1 of paragraph 2.4.6 of his report, which is a matrix “recommended by Arrampica”.

[90]We note that Mr Petherick’s report, at para 4.5, mentioned the following: I am aware that subsequent to both the above accidents, but especially as a result of the incident involving Mr Melvin, a review of procedures took place and various changes implemented, including:  Re-emphasising the need for no free climbing activities (other than within the bouldering areas) and the need to ensure ‘competent’ classified climbers are reminded of the need to clip in to the cable when using auto-belays;  Increasing the frequency of floor walking activities throughout the climbing hall to ensure that all areas are visited at least hourly (rather than two-hourly as previously);  Daily pre-opening checks to include pull tests and karabiner function check of all auto-belay devices; and  An increased number of ‘Are you clipped in?’ signs on walls, with changes in colour of signage (see Figure Five D, page 25 above, for examples) with every re-setting of climbing routes.

[91]Within paragraph 4.11, there is the following comment: If detailed explanations of how control measures will be implemented were to be recorded in risk assessments the document would become overly prescriptive. In fact, since the ‘December 2015’ risk assessment was last reviewed in December 2018 it is my understanding that one of the control measures has changed, with regularly trained floorwalkers checking each climbing area at least hourly.

[92]So, to paraphrase, what the Appellant has told Mr Petherick is that(a) a review of procedures took place and

(b) it was as a result of “both” accidents but “especially” 34 of 50 the October 2018 incident and

(d) the most recent risk assessment review was December 2018 and

(e) that the increase in floor-walking is not mentioned in that review. Floor-walking

[93]In fact, Ms Hemmant’s evidence to the tribunal was that the increase in floorwalking from 2 hourly to 1 hourly did not happen until after the service of the notices, which was in January 2020. She was unable to specify the date of the increase, and we did not see any version of a floor walking policy (either 2 hourly or 1 hourly).

[94]We had 2 pages extracted from a spreadsheet of the Appellant’s records of the floor walking spot checks. We had the sheet for checks recorded between around 3pm on 13 September 2017 and around 3pm on 28 September 2017 (page 533) and around 3pm on 2 October 2017 and around 8pm on 27 October 2017 (page 532). These sheets do not show an entry for every 2 hour interval within those period.94.1 An entry for 14 October shows someone having been “caught” without being clipped in by 3rd clip, and being able to climb down safely.

94.2 An entry for 14 September shows someone was stopped when they were about to climb, with their autobelay harness being worn incorrectly.

94.3 On 17 September, a belayer was found not to have buckled up correctly.

[95]We accept that each instance of floor-walking would take a variable amount of time depending on numerous factors, and especially the number of people using the facility at the time. We accept that the purpose of the floor-walking included making a check to see if anything needed action (which could include telling a climber that they were doing something unsafe or in breach of the rules) and that, selfevidently, the length of time between the start of the floor walk and the end of it would partially depend on how many issues were found that needed to be fixed on the spot (or recorded for later fixing). The Respondent’s estimate was that potentially a floor walk might be around 10 to 15 minutes. We accept that as a reasonable estimate (subject to the caveats mentioned earlier in this paragraph) based on the totality of the evidence. It follows, therefore, that a 15 minute floor walk done 2 hourly, would mean that around 12.5% of the time, a floor walk was in progress, and around 87.5% of the time there was not. The 15 minutes is not spent exclusively looking at the unsupervised climbers.

[96]The Appellant has failed to prove what the floor walkers were specifically told to do in terms of(a) checking that someone on an autobelay climb was clipped into the autobelay for that climb;

(b) checking that someone on a climb that was not an autobelay climb was or was not clipped into an autobelay;

(d) otherwise checking what each unsupervised climber was intending to use as a method to arrest a fall (ie whether they were going to be autobelaying or using a partner). 35 of 50

[97]If the sample in the bundle (pp 532-533) is typical, then most floor walks resulted in either a blank entry in the spreadsheet or no entry at all in the spread sheet. We have no reason to doubt that the reason for that was that most floor walks did not result in anything that needed to be put in writing. However, the Appellant has failed to prove what instructions were given to staff about what the precise check they needed to do on each floor walk, and what did need to be logged (whether in the general floor walk spreadsheet, or the file of an individual customer, or at all). Analysis and conclusions

[98]We make the following preliminary observation. For someone who is not using any belay mechanism or any other device to prevent a fall or arrest a fall, then the potential reasons for their leaving their position at height on the wall, and freefalling to the ground include:98.1 They made a deliberate decision to climb the wall using autobelay, thought that they had done so (when they had not) and deliberately let go of the wall incorrectly expecting their descent to be controlled by the autobelay.

98.2 They made a deliberate decision to climb the wall using a partner as a belayer, thought that they had done so (when they had not) and deliberately let go of the wall expecting their descent to be controlled by their partner.

98.3 They made a deliberate decision to climb the wall using autobelay, thought that they had done so (when they had not) and unintentionally came away from the wall because of their own mistake, or for another reason.

98.4 They made a deliberate decision to climb the wall using a partner as a belayer, thought that they had done so (when they had not) and unintentionally came away from the wall because of their own mistake, or for another reason.

98.5 Having made a deliberate decision to climb the wall without using any belay mechanism or any other device to prevent a fall or arrest a fall, through force of habit they deliberately let go of the wall expecting their descent to be controlled, having forgotten that, in this occasion, they were not attached to anything which would control the descent.

98.6 Having made a deliberate decision to climb the wall without using any belay mechanism or any other device to prevent a fall or arrest a fall, they unintentionally came away from the wall because of their own mistake, or for another reason.

[99]This list is not intended to be exhaustive. The Appellant’s position is that both the Cook Incident and the Melvin Incident were examples of the first of these 6. As a matter of logic, that means that they do not believe it to have been any of the other 5, or any other possibility not listed by us in the preceding paragraph.99.1 For Cook, no written record of how the Appellant came to their conclusion is included in the bundle. We have been provided with no evidence that they took a written statement from him. It appears that believe they have information about where he fell from [12 July 2017 XC Team Meeting minutes say “Climbing area incident, guy fell off overhang autobelay. Open fracture to 36 of 50 leg”], but the source of that belief and the specific reasons for asserting that he deliberately let go because he thought he was “clipped in” are not noted.

99.2 For Melvin, we have noted what is said in the Arrampica report, including under the headings (341) “What Activities were being carried out at the time?”; (343) “Analysis, what happened and why?” and (344) “Skill based errors (a slip or lapse of memory)?” and “Mistakes, errors of judgement, rule based, or knowledge based?” We also note what Melvin wrote to the Respondent. We have not seen where it states that he deliberately let go, or where he says that he believed himself to be clipped in to the autobelay (for climb 1, or otherwise) or where he was questioned about what caused him to be on climb 2 (a route without an autobelay) if his intention and belief was to use an autobelay for the ascent in question. We have not seen the CCTV, and so do not know why the inference from the CCTV was that he was “waiting” to use climb 1. Paragraph 8.5 of the voluntary statement says that the period in which it is claimed he was “waiting” to use climb 1 included his talking to other people and using the bouldering wall. So we do not know why the fact that he was not climbing in that interval is judged to be “waiting” as opposed to choosing to other things. It is not clear if Melvin was actually asked if he was “waiting” to use climb 1.

[100]We note that the Respondent accepted, in cross-examination, that she was not seeking to challenge the Appellant’s assertion that Cook and Melvin had each intended to clip in, and had simply accidentally overlooked the fact that they had not done so before starting their climb (and before deliberately letting go).

[101]We are content to make our decisions below on the basis of assumed facts that the Cook and Melvin Incidents each occurred as per the Appellant’s position in the voluntary statement of February 2019 (summarised at paragraph 10.1 for Cook and 8.6 for Melvin {8.4 is not necessarily consistent with the Arrampica report, and we rely on the Arrampica report}). We certainly do not think it would be appropriate for us to decide that either Cook or Melvin deliberately intended to flout the rules, or was ignorant of the rules, when(a) neither party argued that and

(b) we have not heard from them as witnesses. However, the fact that we are making our decisions on those assumed facts should not be taken as an indication that we think that the Appellant or anybody else carried out a sufficient investigation such that a court or tribunal could be satisfied, based on the evidence in this bundle, that Cook or Melvin deliberately let go thinking that they were clipped into anything, still less that they thought they were using the autobelay on their climb. We know that for Melvin there was a vacant autobelay on an adjacent climb, and we know that he was able to start his climb without bypassing the autobelay barrier (because there was none on his climb) or noting that the autobelay webbing was at tension and was between him and the wall (because it was not; it was on the adjacent climb). We have no similar information for Cook. We do not know if he was using a climb with an autobelay (and, if so, whether the webbing was fully retracted to the device, or connected to the gate, and, if the latter, how/why he climbed past the gate without being alerted to the need to detach the gate and connect the autobelay to himself) or if, like Melvin, he was also on a climb that did not have an autobelay (and, if so, why it is believed that he thought he was using the autobelay). 37 of 50

[102]We are satisfied that we can make our decisions in this case on an assumption that both Cook and Melvin(a) knew the rules and

(b) intended to follow them. Furthermore, we will base our decision on the assumption that they intended to use the autobelay and therefore the particular rules which they intended to follow included the rules for use of the autobelay.

[103]It is convenient for us to address Item 2 from the list of issues first. If the Appellant was carrying on or in control of the activity described as ‘free climbing (not using any belay mechanism or any other device to prevent a fall or arrest a fall) on the climbing walls’ at the XC on 6.1.20

[104]The Appellant’s undertaking includes the operation and control of climbing walls at XC (as well as the bouldering walls). Access to the climbing walls is controlled by the Appellant and is only available to its customers (whether those who pay on the day, or who pay via a membership scheme, or who have some other payment arrangement with the Appellant). Customers must first report to reception on each visit before being allowed to go to the wall, and it is the Appellant which decides whether the customer can be “unsupervised” or must be “supervised”.

[105]There is no dispute that both climbing while attached to another human being as belayer (lead climbing and top climbing) and climbing while attached to the autobelay are permitted by the Appellant as part of its business arrangement with customers. None of the Appellant’s customers are obliged to do any of these activities – and they sign a waiver to acknowledge that it is their own free choice to do them – but the whole point of visiting the climbing walls is to climb, and the methods just mentioned are expressly authorised methods. It is also clear from the evidence that customers are permitted to descend from height by pushing off from the walls and having a controlled descent. The documents signed by the users encourage them to descend by climbing down instead, but it is not argued by the Appellant that relying on the belay or autobelay for a deliberate descent is forbidden by the rules or that it only occurs when its staff are not watching. In answering the panel’s questions, Mr Kirkpatrick accepted that it is a common method of descent.

[106]It is not in dispute that there have been a minimum of 2 occasions on which a climber was “not using any belay mechanism or any other device to prevent a fall or arrest a fall”. That is the Cook Incident and the Melvin Incident, for which the Appellant’s own findings were that the climber was(a) climbing and

(b) not using any belay mechanism or any other device to prevent a fall or arrest a fall.

[107]In addition to those occasions, we have also mentioned incidents from the logs on pages 532 and 533, which cover only a comparatively small time period. Our decision is that one of those was an incident where the climber was(a) climbing and

(b) not using any belay mechanism or any other device to prevent a fall or arrest a fall. The other two were examples of attempting to use a device to prevent a fall, but doing so incorrectly.

[108]We were not shown any evidence that any of the incidents had been logged as a rule breach, which (either of itself, or if repeated) might lead to exclusion from the facility. The Appellant’s own account was that Cook had resumed use of the wall. 38 of 50 (By the phrase “rule breach”, in this paragraph we are not limiting it to either accidental breaches only or to deliberate breaches only).

[109]We note that in the Board Meeting in July 2017, Ms Hemmant referred to advice stating that “the most common cause of accidents when climbing is people forgetting to clip themselves on”. We also note the descriptions of the Cook and Melvin incidents in the RIDDOR reports, the Arrampica reports, the Appellant’s own report for the Melvin Incident, and Mr Melvin’s answer to the Respondent’s questions. Melvin and Cook are described as having been “climbing”. It is not suggested anywhere that they became trespassers at some point as a result of what they did.

[110]We are satisfied that the Appellant grants access to its walls so that people can climb. It is aware that some of the time, some people will climb in a way which is contrary to best practice and/or contrary to the Appellant’s rules and/or dangerous. Customers should not do any of those things, but they do do them. One particular example of something which is contrary to the Appellant’s rules (as well as being bad practice and, as we will discuss below, dangerous) is climbing while not using any belay mechanism or any other device to prevent a fall or arrest a fall and this is something which the Appellant knew would happen from time to time as a result of its allowing customers access to its walls (especially the “unsupervised” access granted to those who passed the rope competency test and signed the waiver.)

[111]The Appellant had the ability to control this activity as of 6 January 2020. There is an unlimited range of methods of control it could exercise. One method which it did in fact adopt was informing customers that they were not allowed to climb while not using any belay mechanism or any other device to prevent a fall or arrest a fall. Another method which it did in fact adopt was the 2 hourly floor walking checks. Various other methods such as CCTV, improving line of sight from reception, increasing the staff members monitoring the wall, were all in things which the Appellant had the power to adopt to control the activity. “Controlling” the activity would include methods to prevent customers leaving the ground in the first place if not using any belay mechanism (or any other device to prevent a fall or arrest a fall), as well as method to bring the person back down to the ground in a controlled and safe manner if the lack of belay mechanism is not discovered until the customer is already at height.

[112]We therefore go on to consider item 4 from the list of issues. If the Appellant was carrying on or in control of the activity described then whether the activity involved a risk of serious personal injury on 6.1.20;

[113]Falling from height can cause serious injury or death. Each of Cook (fall from 8m) and Melvin (fall from 13m) suffered serious injury.

[114]Climbing while not using any belay mechanism (or any other device to prevent a fall or arrest a fall) means that a fall to the ground can happen if (for example): the climber makes an error and loses their grip; suffers a sudden onset of illness and loses their grip; is struck by another climber or object which dislodges them; or if the foothold or handhold fails. Alternatively, according to the Appellant (and not disputed by the Respondent), a person not clipped in could also deliberately push 39 of 50 off from the wall incorrectly believing themselves to be attached to an autobelay or a belayer, and expecting to have a slow descent, but instead having a freefall.

[115]As well as the injuries that can be suffered from impacting the ground (on the rubber mats) with force, injuries could occur from attempts to grab onto the wall and/or from body parts striking the wall on the way down.

[116]It is not necessarily the case that every time a climber uses the wall while not using any belay mechanism (or any other device to prevent a fall or arrest a fall), they will suffer serious personal injury. They might fall from a very low height. Alternatively, they might not fall off at all. However, each time someone begins an ascent without using any belay mechanism (or any other device to prevent a fall or arrest a fall) there is a danger of serious personal injury which is significantly greater than if they began the same ascent while “clipped in” to the auto-belay, or with the appropriate assistance of a human belayer.

[117]It is next convenient to consider item 6 from the list of issues. If the Appellant was in breach of Regulation 3(1)(b) of the Management of Health & Safety at Work Regulations 1999 as contended in the opinion of the Respondent, or at all, on 8.1.19 (sic) - 8.1.20;

[118]One thing that the risk assessments do not do is include any matrix or any other numerical evaluation of the risk. Although there was a lot of cross-examination of the experts on the topic (which we do not need to repeat in full), it was ultimately common ground (and we agree) that it is not a legal requirement that a risk assessment must include a matrix (or any other assignment of a purported numerical value to different risks).118.1 Each of the experts acknowledged that one way (not the only way) that a risk assessment might demonstrate that the “duty-holder” (a term found in the Enforcement Management Manual) had evaluated the risk was to use a method which identified possible hazards, and then, for each hazard assign a particular integer (commonly in the range 1 to 5, but it could just as easily be 1 to 3, or something else) to each of

(a) the likelihood of it happening and

(b) the severity of the consequences if it did happen. The more likely the chances of occurrence, the higher the integer; the more severe the consequences, the higher the integer. Multiplying together gives a product which can be treated as a tool to at least rank the risks associated with each identified hazard.

118.2 Dr Cooper said (and we agree) that if this method is to be used, it is absolutely essential that the definitions that are used are in writing and clear and easily applicable so that different individuals do not develop their own systems for deciding to allocate a “2” or a “4” etc. He also noted that a risk factor of (say) 5 could be the product of likelihood = 1 and consequences = 5 or of likelihood = 5 and consequences = 1, and he cautioned that that might be too blunt an analysis. More is required.

118.3 The experts agreed that if matrices were used, their purpose was to assist the “duty-holder” to recognise which of the hazards might need further control 40 of 50 measures put in place to reduce the risk (whether by reducing the likelihood, or the severity, or both). The matrix itself does not reduce the risk.

[119]In 2.5, of the joint statement, the experts say: We DISAGREE as to whether any review of the RAs took place following the accidents in July 2017 and October 2018. AJP believes that reviews took place, including with the appoint Technical Adviser. MJC DISAGREES in the absence of documentary evidence.

[120]After the 2017 incident, there was no review of the “XC Auto Belay Competent Climber” until May 2018 (in our findings of fact, we have said why we think the third review was 14.05.18 rather than, as typed, 14.05.19). Ms Hemmant’s oral evidence was that someone had reviewed it prior to then, but she could not say who, or when, or why the review was not mentioned on page 5. We do not accept the Appellant’s claim that there was a review. There was a review of “Auto-Belays (and routes)” assessment on 10 October 2017. However, our analysis based on the timing of the other reviews mentioned on pages 4 and 5 of that document, is that the October 2017 review was done because it was 12 months since the previous review, not because of the Cook Incident some months earlier. There is no record of what changes (if any) were made in October 2017 (or any other date) and the Appellant accepts that Mr Thomas could not have been looking at a written report of the Cook Incident when he did his review (because there was no such written report). In summary, neither of risk assessments that are the subject of the improvement notice was reviewed to take account of any lessons learned from the Cook Incident.

[121]We have found that there was a review “XC Auto Belay Competent Climber” in December 2018 and the resultant document is at pages 220-224. The changes compared to the 14 May 2018 version (215 to 219) are noted in our findings of fact. (We accepted there was also a review in October 2018, but there is no way to telling which, if any, changes were made in October and which, if any, were made in December.) There was a review of “Auto-Belays (and routes)” assessment in October 2018, but that was the date it was due for its annual review in any event. There is no direct evidence about whether any changes were made, although we do note that it was Ms Dealey who did this review as well, and the document in the bundle (225-229) does not include similar additions to column 1 (eg adding reference to “injury”) as appear in the amended version of the “XC Auto Belay Competent Climber”. The similarity of the wording when pages 225-229 are compared to 215 to 219 leads us to infer that there were no changes made to the “Auto-Belays (and routes)” document in October 2018.

[122]We do not infer that Arrampica was directly involved in the review of the risk assessments. Their stationery is not used, their methodology is not used, and the suggestions in Step 3 and recommendations in Step 4 of their report are not addressed.

[123]We have noted paragraph 2.13 of the joint statement, and the cross-referenced parts of Dr Cooper’s report. It is our decision that the Appellant’s approach to seeking to avoid/reduce instances of falls from height by persons not using any belay mechanism (including the auto-belays provided), or any other device to 41 of 50 prevent a fall or arrest a fall, relies pretty much exclusively on the climber themselves doing this.123.1 There are signs in place to remind them, but our view, like that of Dr Cooper (and, we infer, Arrampica), is that regular customers are not going to read the signs on every visit; their attention is no longer piqued as a result of their familiarity.

123.2 The risk assessments mention “Auto Belay Induction” which is not something expressly dealt with in Mr Kirkpatrick’s written statement. As mentioned in our findings of fact, he refers to both 4.15 and 4.16 as being part of “rope competency assessment, and we have not been shown any documents that specifically record that “auto belay induction” (or the things that Mr Kirkpatrick said orally were part of the checks mentioned in paragraph 4.15 of his statement) has been done for a given climber. However, and in any event, even on the Appellant’s own account, after the initial check which allows someone to be given permission climb unsupervised, there are no further scheduled checks or reminders.

123.3 The floor-walking is nothing like constant supervision or monitoring. Reception does not have line of sight to the entire wall and, as Mr Kirkpatrick pointed out, the receptionist’s job is to serve customers in reception, not to keep an eye on the wall. Experienced and qualified instructors may well be in the climbing wall area at a given time, but only if they are there to supervise a group; while they are encouraged to keep an eye on the wall, that is not at the expense of closely watching the group they are with.

123.4 The difference of opinion between the experts as to whether the existing triangular barrier was sufficient (Petherick) or a wider rectangular barrier was needed (Cooper) is something of a red herring given that there are climbs (such as climb 2, from which Melvin fell) which have no barriers at all. At least part of the reason for their difference of opinion, it seems to us, both on the barrier issue and the foothold issue, relates to whether the unsupervised wall user should be considered as someone who

(i) knows how to clip in and

(ii) knows all the risks of not clipping in, and therefore the importance of clipping in and

(iii) is deemed to be someone who wants to avoid those risks and wants to clip in, and needs only reminders so that they do not accidentally forget, OR whether significant impediments should be put in the wall users way to make it difficult for them to ascend it not clipped in, whether as the result of forgetfulness or choice. Neither the wider rectangular barrier nor the removal of footholds on the autobelay climbs would necessarily prevent a determined person from using an autobelay climb without being clipped into the autobelay, but would potentially make it more obvious to others in the vicinity that that is what they were attempting to do. We do not know if Cook accidentally climbed on an autobelay route while the triangular sign/barrier was in place (because the Appellant did not document any investigation of what happened); we do know that Melvin accidentally climbed while the triangular sign/barrier was in place; he was able to do so because he ascended an adjacent climb to the autobelay climb, one which had no barrier. Therefore, even on the assumption that wall users should be deemed to be people who will always 42 of 50 clip in if they remember to do so, the barrier does not prompt them to remember to clip in on every route.

[124]We note what paragraph 2.12 of the joint statement says and we will consider that alongside paragraph 2.4, which reads: We AGREE that the RA was basic, met industry standards, but might have benefitted from a risk rating score. We DISAGREE that in this case industry standards were insufficient. MJC believes that the industry standard fell below the legal requirement.

[125]We note that “industry standard” refers to the ABC and BMC position, and we have considered the appendices to Mr Petherick’s report as well as the email from Mr Middleton.125.1 A difference between climbing with a partner and solo climbing using an autobelay is that the former means that there will be two pairs of eyes from the climbers themselves (without the need for a staff member, in other words), but the latter would only have one pair of eyes, unless a particular arrangement is made, eg that the climbing wall operator insists on attachments being checked either by a staff member or another user. Mr Kirkpatrick’s comment that “The XC offers unsupervised climbing experience to rope competent climbers who wish to recreate an authentic climbing experience indoors,” (our emphasis) does not take account of the fact that autobelays are not part of the “authentic” experience elsewhere. The autobelay is not only allowing the activity to take place indoors, it is removing the need for a partner, and therefore removing the second pair of eyes. It is a different “experience”.

125.2 Mr Petherick, at paragraph 4.4 states: “This is not a case where Mr Cook and Mr Melvin were being allowed to climb free of any belay devices or the activity was permitted or condoned. This is an important consideration which should be borne in mind when considering the management and operating procedures together with the relevant risk assessments.” (Our emphasis). In the context of the paragraph, the reference to the BMC manual appears to be used to suggest that accidents “where users have failed to clip in to the cable”, are an inevitable outcome of the use of autobelays.

125.3 We note the statistics in the BMC manual which are said to show in Chart 1 a breakdown by “activity being undertaken at the time of the accident”. The document does not make clear if a failure to clip into an autobelay is part of the activity of using an autobelay. (We have rejected the Appellant’s argument in this case that it would be a different activity, but it is unclear whether BMC adopted our approach, or that of the Appellant). The BMC manual whose extracts are appended to Mr Petherick’s report is a 2008 document (written before climbing walls became as widely available as they were in January 2020, and before the injuries and fatalities referred to in the Arrampica report and Mr Petherick’s and Ms Hemmant’s oral evidence, and before the Cook and Melvin Incidents). Therefore the comment in 5.1 of the manual that “very few major accidents occur at climbing walls” has to be treated with some caution. In context, this remark is part of the justification for the comment in the previous paragraph that “Experienced climbers can be left to conduct their own affairs without direct supervision”. (A sentiment echoed by Mr 43 of 50 Kirkpatrick’s analogy to drivers with a licence being able to drive unsupervised).

125.4 The comment in the manual that “As long as facilities have not contributed to an accident, sports facility managers are not responsible for injuries that arise from the normal pursuit of sport” is juxtapositioned to the recommendation to use the BMC participation statement, which includes the sentence “Participants in these activities should be aware of and accept these risks and be responsible for their own actions and involvement”. These sentences are not specifically addressed to autobelays (only) as the manual refers to various activities on climbing walls, including those where experienced climbers act as a team, looking out for each other.

125.5 We also note the ABC manual, including paragraph 2.1.1 (page 157 of bundle). We also note that it states: “For experienced roped climbers, it is sufﬁcient to provide best practice guidelines next to the autobelays. This is because the key risk with autobelays lies with users not clipping In to the autobelay and roped climbers will already know how to put on a harness and operate a locking carabiner safely. We also note the contents of “2.10 Monitoring”.

125.6 Under risk assessments, the ABC manual includes comments that the assessment should consider the likelihood of a hazardous occurrence and the severity of it and that control measures put in place to lower the level of risk wherever possible. It should be reviewed at least annually and whenever there are changes to procedure. The Health and Safety Policy and Operational Procedures should be based on the risk assessments and reviewed (annually, when there are changes and) “in the event of a major incident”. It refers to the HSE website for further information.

[126]Our decision is that the risk assessments which were current in January 2020 titled "Auto-belays (and routes)” (pages 225 to 229) and "XC Auto Belay Competent Climber” (220 to 224) are not suitable and sufficient. They do not evaluate the risks at all (either before the Cook Incident, or between the Cook Incident and the Melvin Incident, or) after the Melvin Incident.126.1 “Barriers” as a means to prevent accidental use of an auto belay route without clipping in is not mentioned as a control measure (or at all).

126.2 The possibility of someone using an auto belay route without seeing the barrier because the webbing was fully retracted to the device is not mentioned.

126.3 The possibility of someone ascending without being clipped in, and not seeing the barrier because they were not on an auto-belay route, but on some other climb, is not mentioned.

126.4 Measures to address the possibility of someone deliberately choosing to ignore the rules and/or deliberately circumvent the barrier are not discussed.

126.5 The possibility of someone deliberately letting go because they thought they were clipped in is not mentioned, even though, according to the Appellant, 44 of 50 that was the actual reason for Cook and Melvin falling from height and suffering their injuries (and therefore was a possibility known since 2017).

126.6 More generally, the various possible causes of a “fall” while not being clipped in are not addressed. Injury due to “spinners”, or wall fixing failure, or PPE failure are discussed, but not linked to whether, at the time, the user was or was not “clipped in”. The risks to other people caused by a climber freefalling from a significant height are not addressed expressly (and certainly not evaluated).

126.7 While “attaching to the auto belay correctly” is mentioned in column 1 (meaning it is seen as a significant hazard), there is no mention in that row that the outcome might be serious injury or death. There is no assessment of the likelihood. We agree with Dr Cooper that 2 separate incidents in 2 consecutive years would, in itself, be something which ought to have alerted the Appellant to consider the likelihood. The Appellant had not assessed the likelihood previously, and so there was no estimate to increase, but even if there had ever been a justification for regarding the likelihood as “low” (and that is not our opinion), the Cook Incident removed that justification, and the Melvin Incident was further reinforcement.

126.8 Similarly, we also think that the incidents elsewhere in the country, including fatalities, were a reason that the Appellant should have reviewed its risk assessments, and assessed the likelihood of a climber falling when they were not attached to something to arrest their fall. Different likelihoods might apply depending on whether the user was in the process of top rope climbing, lead climbing or intending to climb with auto-belay. One reason that there might be different likelihoods is that the risk might be greater for the types of climbing that do not necessitate a partner. The risk assessment documents show no evidence of the Appellant addressing its mind to the likelihoods. (In passing, we comment that we do not agree with Mr Wright’s suggestion that – based on the number of users who do not fall without being clipped in, the likelihood should be treated as 1 in a few thousand, etc. That methodology would only make sense if a different risk assessment was to be done for each user for each visit to the centre. However, in a risk assessment intended to be reviewed annually, and to inform procedures and policy, our view is that the Appellant should actually be assessing the likelihood that, over a period of time, at least one climber might fall from height while not attached to – as the case may be – the autobelay device, or whatever other measure they were should have been using at the time to arrest their fall. However, the Appellant did not address the issue at all, regardless of methodology).

126.9 While referring to “staff vigilance and training” as a control measure, that is extremely vague and does not address how that measure will assist to reduce the risk. The same applies to “Area checked every two hours on the daily log sheet”. The Appellant’s view is that if it notices that a climber is not clipped in, it will speak to the climber about that, but the two measures just mentioned do not suggest that the Appellant will proactively check an “unsupervised” climber is secured. On the contrary, the Appellant’s position is that its users do not want it to do that, and that it does not want to do that. 45 of 50

[127]The fact that “Free climbing (not using any belay mechanism or any other device to prevent a fall or arrest a fall) on the climbing walls”, is not something which the Appellant’s customers are allowed to do by the Appellant’s terms and conditions is not a reason to fail to include it in risk assessments, or to implement control measures. On the contrary, one of the reasons that the Appellant’s terms and conditions inform customers not to do this is that it is known to be very dangerous. The likelihood/consequences of persons breaching the terms and conditions(i) deliberately and

(ii) accidentally should be evaluated, and appropriate control measures considered.

[128]In other words, the assessments in question do not satisfy the obligation in regulation 3 of the regulations, even taking account of what ABC say, what BMC say, and what we have found to be the Appellant’s procedures, and its opinions of what its customers want it to do.

[129]We turn now to item 1 of the list of issues. The Tribunal will decide whether to cancel or affirm each notice and, if it affirms it, will decide whether to do so either in its original form or with such modifications as the Tribunal may in the circumstances think fit. Following submissions made at the Preliminary Hearing which took place on 11th December 2020 it is agreed the Prohibition Notice PRO U000822 can be modified by removing the reference to a breach of s3(1) of the Health and Safety at Work etc. Act 1974 as it is not necessary to show a breach of the law to issue such a notice.

[130]We do affirm each notice, though with modifications. We are assessing the situation as of January 2020, and therefore not taking into the account the restrictions imposed because of Covid on various leisure activities, including those offered by the Appellant.

[131]As of 6 January 2020, climbing on the Appellant’s climbing walls without the use of using any belay mechanism or any other device to prevent a fall or arrest a fall was something which the Appellant’s customers had done in the past and were likely to do in the future. It was an activity under the Appellant’s control, albeit an activity which the Appellant told its customers not to perform when they registered, and which customers were reminded not to do by signage (and occasionally by floorwalkers or other staff, if noticed). There had been a gap of around 15 months from the Cook Incident to the Melvin Incident. So the fact that there had been a gap of 15 months from the Melvin Incident to the date of service of the notice did not imply that the risk of serious personal injury had gone away. The Respondent was entitled to conclude that the risk of serious personal injury still existed as of 6 January 2020 and we agree that it did. Service of the prohibition notice was appropriate. The amended wording offered by the parties still included the phrase “unless the said contraventions have been remedied”, which no longer made good sense, as the amendments were to remove details of the contraventions.

[132]We have modified it to replace that wording with “until you have complied with Improvement Notice U000834 (as modified) and implemented the control measures which have been identified in compliance with paragraph 4 of the Schedule of Works forming part of that Notice”, which we are satisfied retains the spirit of the original. At the risk of stating the obvious,(i) the amended notice does 46 of 50 not imply that, once it has complied with the condition, the Appellant will be free to authorise users to climb without being clipped in and

(ii) we are not seeking to prevent the Respondent from serving a further prohibition notice in the future if that becomes necessary. Our modified notice is at Schedule A.

[133]We have also made additions to the Improvement Notice as shown at Schedule B, and we consider these to be self-explanatory. As stated previously, we are happy to assume that each of Cook and Melvin accidentally failed to comply with the rules. However, the Appellant’s existing approach seems to rely entirely on the users wanting to comply with the rules, provided they do remember. As well as extra measures to help people remember, and to monitor/rectify forgetfulness, the Appellant should open its eyes to the possibility that some people ignore rules if they do not think the rules are being enforced. We note:133.1 that locking autobelays so that the customer needs a member of staff to unlock would not necessarily have prevented the Melvin Incident. And

133.2 that a rule which required a climber to have a member of staff check their attachments before the ascent (at least, for those ascents which do not involve another climber as partner) would require there to be at least one member of staff (and more than one at busier times) to be at the in the vicinity of the wall ready to be called over by the customer to do the check (and to monitor compliance with such a rule if introduced). However, we do not agree with the Appellant that such a rule would require there to be one such member of staff dedicated to each autobelay route. We make these latter two observations purely out of respect for the arguments that were addressed to us. It will be for the Appellant, when complying with the Improvement notice, to consider what control measures to adopt to address the risks once those risks have been sufficiently evaluated.

[134]The notice should have been dated 8 January 2020, and we modify it to that extent also, as well as including a date for compliance.