MWH UK Ltd v Wise (HM Inspector of Health & Safety) [2014] EWHC 427 (Admin)

[2014] EWHC 427 (Admin)

Case No CO/761/2013

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 24/02/2014

Before

THE HON. MR JUSTICE POPPLEWELL

Between

MWH UK LimitedAppellant

VICTORIA SUSAN WISE (H.M. Inspector of Health & Safety)Respondent

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

Cyril Adjei (instructed by Addleshaw Goddard LLP) for Respondent

Hearing Hearing dates: 18 February 2014

Judgment

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 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” “Schedule 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. Notes The training should include, but is not restricted to, the following elements: [specific asbestos related topics were then enumerated]”

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 “Schedule Notes The training should include, but is not restricted to, the following elements: [specific asbestos related topics were then enumerated]”

The training should include, but is not restricted to, the following elements:

[16]The accompanying letter, with which the Improvement Notice must be read, identified the background circumstances and provided:

“Improvement Notice 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……. Other matters 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; (ii) electricians; (iii) plumbers; (iv) gas fitters; (v) painters and decorators; (vi) joiners; (vii) plasterers; (viii) demolition workers; (ix) construction workers; (x) roofers; (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…….”

Other matters (i) general maintenance staff; (ii) electricians; (iii) plumbers; (iv) gas fitters; (v) painters and decorators; (vi) joiners; (vii) plasterers; (viii) demolition workers; (ix) construction workers; (x) roofers; (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,”

The Regulatory Framework

[17]Section 2(1) of the Health and Safety at Work Act 1974 provides that it shall be the duty of ever employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees. Section 3(1) provides that 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 thereby are not thereby exposed to risks to their health or safety. The material parts of sections 21, 24 and 82 provide as follows:

“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:” (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, (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. (c) “modifications” includes additions, omissions and amendments, and related expressions shall be construed accordingly:”

[18]The CDM Regulations provide in Regulation 14(1) for the appointment of a CDM Co-ordinator. Regulation 4(1)(b) prohibits a person from accepting appointment as a CDMC unless he is competent.

[19]Regulation 10 concerns the duties of the client, in this case NWL, in relation to information. It provides:

“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...” (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 (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]Regulation 20 concerns the duties of the CDMC. It provides:

“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, inparticular, 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 constructionwork. (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….” (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, inparticular, 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 constructionwork. (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 constructionwork. (2) Without prejudice to paragraph (1) the CMD co-ordinator shall — (a) take all reasonable steps to identify and collect the pre construction information: (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….”

[21]The relevant Code of Practice is the Managing Health and Safety in Construction (Design and Management) Regulations 2007 Approved Code of Practice (“ACOP”). It provides as follows:

“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. Providing Information 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.”

What CDM Co-ordinators should do (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.

The Decision of the Employment Tribunal

[22]An appeal was lodged against the Improvement Notice in the Employment Tribunal in Newcastle on 28 November 2011. On an appeal from the imposition of an Improvement Notice, the Employment Tribunal reaches its own decision, paying due regard to the views and the expertise of the Inspector. It decides whether it would have served the Notice at the time at which it was served on the basis of the information which was available to the Inspector or ought reasonably to have been available following such investigation as ought reasonably to have been undertaken: Chilcott v Thermal Transfer Ltd

[2009] EWHC 2086 (Admin)

paras 5-12 and 19-21.

[23]The Tribunal heard evidence over five days in September 2012, followed by further written submissions. Its conclusions and reasoning are contained in the following paragraphs of its judgment:

“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.” “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.” “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.”

[24]MWH appeals to this Court pursuant to s11 (1) and paragraph 16 of Schedule 1 of the Tribunals and Inquiries Act 1992. An appeal lies only for an error of law.

Ground 1: breach of duty

[25]The statutory duty of a CDMC includes the following:(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).

[26]Both counsel submitted that the Tribunal’s decision was to be read as finding a breach of duty by MWH at the PCI stage in failing to advise its client, NWL, to include a full demolition and refurbishment survey in the PCI, and it was on this basis that Mr Adjei on behalf of the Respondent sought to uphold the decision. I will address the arguments on the appeal on that basis, although the language of the judgment at paragraphs 43, 46, 48 and 54 might be thought to support a more general and continuing breach. It follows that the relevant duties are those I have identified at(1) and

(2) above.

[27]Mr Cooper submitted that to require MWH to have advised NWL to obtain a full asbestos survey would be to replace its true advisory role with a role which would require the degree of qualitative analysis which is the badge of a specialist contractor. It would require the CDMC to be an expert in many different disciplines involved in construction, such as for example geotechnical issues or those which relate to silica dust, explosive gases, methane or electricity cabling. It would, in effect, require the CDMC to monitor or supervise the works.

[28]I am unable to accept these arguments. The duty is to check the PCI and advise the client on significant gaps in relation to what is reasonably obtainable. The CDMC is the key safety advisor at this stage of the project and can be expected to be able to identify the nature of the hazards which need to be addressed and in what level of detail. The CDMC is not expected to have the specialist expertise involved in making the detailed assessment of the hazards. But it is expected to have sufficient expertise to understand what hazards need to be addressed and whether they have been addressed. Whether and how hazards fall to be addressed is a matter of fact and degree in each case. There may be some cases in which there is room for debate whether the hazard and the information currently available are such as to leave a gap in the PCI; but this is not one of them. The presence of asbestos is a well known and obvious potential hazard in projects of this kind. Mr Dipper of MWH was aware of the need for a full asbestos survey; indeed it was his evidence to the Tribunal, which was rejected, that he had advised specifically that a full asbestos survey should be undertaken. This did not involve any specialist expertise beyond that to be expected of a key safety adviser at the planning and preconstruction stage, nor the specialist asbestos expertise required of someone carrying out such survey. Nor was it equivalent to requiring MWH to monitor or supervise works.

[29]Mr Cooper submitted that it would have been unrealistic to expect or require MWH specifically to advise NWL of the need for a full asbestos survey in circumstances where(1) the PCI included both the WYGE report, which made such a recommendation, and the note referring to the possible presence of asbestos in bitumen wrapping; and

(2) the CPP issued by BVL indicated that a full survey would be undertaken.

[30]As to the first, mere inclusion in the PCI of the WYGE report and note about bitumen wrapping was not sufficient to fulfil the duty. The relevant passages were parts of longer documents in a lengthy volume of written material. The role of the CDMC is to take responsibility for advising the client of safety information which needs to be obtained. It was for MWH to identify from this material that a full asbestos survey had not been conducted and needed to be, and to tell NWL so in terms; it was not sufficient to rely on NWL picking it up from these references. The role of a key safety adviser at this stage, whose duties are to advise the client what is missing from the PCI which it is collecting, is itself to identify specific gaps itself, not leave it to the client to identify gaps from passages buried in the substantial material which is part of the PCI which already exists. I readily concur with the Tribunal’s conclusions that these references in the considerable volume of material in the PCI were insufficient to comply with the duty.

[31]As to the reference to BVL’s intentions in the CPP, this is irrelevant to the breach of duty under consideration, which is the advice which was required to be given at the prior stage of preparation of the PCI. The PCI has to go to all tenderers, who are entitled to the safety information required by Regulation 10(2).

[32]This is not, as Mr Cooper sought to characterise it, imposing a duty on the CDMC to tell the client what it already knows. There was no finding that NWL knew it should have commissioned a full survey as part of the PCI. On the contrary, the Tribunal recorded the evidence of Mr Watts of NWL that if MWH had advised it to commission a full asbestos survey, it would have done so. Even if MWH had been entitled to assume that NWL had picked up from the PCI that there was no full asbestos survey, which it was not, that still would not have justified the failure to advise NWL specifically that it was NWL which had the duty to commission such a survey, and that it was required to do so as to include it in the PCI at the stage when the contract was being put out to tender.

[33]Mr Cooper submitted that there were practical reasons why a full asbestos survey should not be carried out at the PCI stage. This did not sit very happily with his other submissions, or Mr Dipper’s unaccepted evidence that he had advised that such a survey should be carried out. There was no argument before the Tribunal that practical difficulties prevented a full asbestos survey at the PCI stage and no finding of fact to that effect. This was a submission Mr Cooper sought to make more by reference to projects in general than the particular circumstances of this case. I accept that there may well be aspects of some projects in which particular safety hazard investigations can only reasonably be left to a post PCI stage, for example where substantial opening up needs to be performed before proper testing and assessment can be carried out. But the asbestos survey for this project is not such a case. In reality the practical objections identified by Mr Cooper in this case were no more than that there would be inconvenience and expense in arranging pumping on the surface and sample testing in the tunnel at a stage prior to the main works commencing. But such a survey would obviously have to be carried out by specialist contractors in controlled conditions prior to any risk of exposing those at the site or working on the project to any asbestos hazard. There is no obvious reason why this could not and should not occur at the PCI stage and the Tribunal did not find that there was.

[34]I therefore detect no error of law in the Tribunal’s finding that MWH was in breach of Regulation 20 in failing to advise NWL to obtain and include within the PCI a full asbestos survey.

Ground 2: modification impermissible

[35]Mr Cooper’s submission was that the Tribunal had rejected the Respondent’s conclusion of incompetence and accordingly could not properly replace it with a finding of breach by reason of a systems failure.

[36]In this respect it is important to bear in mind that the decision of the Respondent, reflected in the Improvement Notice, proceeded in two stages. It was first that MWH was in breach of Regulation 20, and second that the explanation for the breach was a lack of competence, amounting to a breach of Regulation 4. The breach of Regulation 20 was specifically referred to by the Respondent at her meeting with Mr Dipper, as the Tribunal found, and a breach of Regulation 20 is recorded in the Improvement Notice itself. In those circumstances the Tribunal correctly proceeded to consider first whether there had been a breach of Regulation 20.

[37]Having concluded that there was such a breach, the Tribunal was bound to consider also what it would have regarded as the cause of the breach, on the information which the Respondent had or ought reasonably to have had following a reasonable investigation. The powers of the Tribunal when hearing an appeal under s. 24 of the 1974 Act include the power to make modifications. This is defined widely in section 82, and its purpose is to promote health and safety at work (see per Eveleigh J in Chrysler United Kingdom Ltd v McCarthy [1978] I.C.R. 939 at 941H-942B). A Tribunal must put itself in the putative position of the inspector and decide what improvement notice, if any, is justified. It must then affirm, modify or cancel the Notice in accordance with its views. That necessarily involves forming its own view as to the cause of any breach of duty which it has found, because the purpose of the improvement notice is to identify what should be done to prevent or minimise the risk of such a breach occurring in the future, so as to fulfil the statutory purpose of promoting health and safety at work. Accordingly in this case the Tribunal was not only entitled but bound to consider modification of the Notice in the way it regarded as best suited to promoting health and safety in the future, by reference to its conclusions on the cause of the breach of Regulation 20.

[38]I have no doubt that the Tribunal was entitled to reach the conclusion that the breach was due to a systems failure rather than incompetence. It was not suggested to me that there was in the particular circumstances of this case a third possible explanation for the failure (paragraph 36 of the Tribunal’s decision refers to a possible reason being a lack of appreciation of the dangers of asbestos, but this is in reality no different from an incompetence finding). It was not suggested, for example, that the failure arose through a conscious decision not to give the advice for some particular reason. In the light of Mr Dipper’s (unaccepted) evidence to the Tribunal that he gave the advice, no such suggestion could have been advanced. The finding of a systems failure is a finding of fact which was open to the Tribunal and is not reviewable on this appeal which lies only for an error of law.

[39]Mr Cooper relied on the decision of Mr Justice Evans-Lombe in BT Fleet Ltd v McKenna

[2005] EWHC 387 (Admin)

, in which he quashed a notice which had been affirmed with modification by the employment tribunal. The case arose out of an incident in which a worker was lifting a transit wheel onto a tyre changing machine. The improvement notice issued by the inspector identified the breach of duty as failing so far as possible to avoid the need for its employees to undertake manual handling. Paragraph 1 of the schedule required the employer to provide mechanical aids for lifting the tyre so as to avoid manual handling; paragraph 2 contained the usual rubric that “Any other equally effective means of complying with the notice my be used”. By the time of the appeal to the employment tribunal, the inspector accepted that it was not appropriate to insist on a mechanical solution to the problem of lifting the wheels onto the machine. The employment tribunal nevertheless affirmed the notice on the basis that whilst the direction that the employer provide suitable mechanical aids as an alternative to manual handling was not reasonable, the phrase “any other equally effective measures” would include ensuring that the employer’s written procedures on manual handling were properly followed and monitored. The tribunal amended the notice by adding words to paragraph 2 of the schedule so that it read “Any other equally effective means of complying with the notice may be used, such as ensuring that adequate training and supervision is in place”.

[40]Mr Cooper relied upon the remarks of Evans-Lombe J in paragraph 19 that “once it became apparent to the Tribunal that the HSE …..was not insisting on a mechanical solution to the problem of lifting wheels onto the tyre changing machine the Tribunal should have realised that the notice was fatally flawed and should not have attempted to put matters right by amendment.”

[41]The case is readily distinguishable. In that case the employment tribunal affirmed the notice on the basis that the expression “any other effective measures” was sufficient to include measures other than mechanical aids, adding clarificatory words to that effect at the end of paragraph 2 of the schedule. But the finding of breach in that case was the failure to use mechanical aids. The ratio of the decision is in my view to be found in paragraph 22 of the judgment, which is that the notice was unequivocally based on the breach being the manual lifting of wheels, which could only be remedied by providing mechanical aids. Once it was accepted that this was no longer a reasonable requirement, the notice “did not properly enable the recipient to know what was wrong, why it was wrong and how the giver of the notice intended that what was wrong should be put right”. The “amendment” being referred to in paragraph 19 of the judgment was an amendment to how the words “any other effective measures” were to be interpreted. It was incoherent because paragraph 1 of the schedule, which was not modified, required the use of mechanical lifts so as to avoid manual handling altogether, not some suitably trained form of manual handling. The amendment proposed by the tribunal could not put right the fatal flaw because the breach consisted in not using mechanical lifts, and the remedy required, as specifically identified, was the avoidance of manual lifting. It was therefore nonsensical to amend the general words at the end of the schedule to treat measures to ensure adequate training and supervision of manual lifting as an equally effective means of ensuring avoiding manual handling altogether; or a means of remedying the breach which consisted in not using mechanical lifts so as to avoid manual handling.

[42]The case turns on its particular facts, and is not authority for any wider proposition. In particular it does not support Mr Cooper’s submission that an employment tribunal which upholds the inspector’s finding of breach is not entitled to consider the cause of the breach and modify the notice so as to require what it considers to be the appropriate steps best fitted to eliminating or reducing the risks to health and safety posed by a repeat of such breach in the future. A tribunal is not only entitled but bound to take such matters into consideration when exercising its appeal functions under section 24 of the 1974 Act.

[43]In this case the Tribunal held that the Improvement Notice should be modified so as to require MWH to put in place an adequate system to remedy what it held to be the cause of the breach. In doing so it was performing a statutory power for its statutory purpose under section 24. There was no error of law in its approach.

[44]Mr Cooper had a narrower point under this ground, which was that the modification to the Notice itself, which the Tribunal proposed in paragraph 57 of its judgment, impermissibly retained the reference to a breach of Regulation 4, which could not be justified given the finding in paragraph 55 that the inspector’s finding that the reason for breach was incompetence was not appropriate. Mr Adjei argued that the Tribunal’s findings should be read as supporting the view that the Respondent was entitled to find incompetence on the basis of the material available to her at the time, including in particular admissions made by Mr Dipper at their meeting on 28 October 2011. I disagree that this is the effect of its findings, which taken as a whole were that, on the Chilcott approach, the breach was due to a systems failure, and not to incompetence. Having so found, the Notice must be modified to remove reference to Regulation 4. Paragraph 57 must have included such a reference by mistake, given the unequivocal terms of paragraphs 55 and 56.

Ground 3

[45]Mr Cooper submitted that in failing to identify what modifications were necessary to the Schedule, the Tribunal left the Improvement Notice in a form which offended the principle that such a notice must tell the recipient fairly and in comprehensible terms what he has done wrong and what he must do to put it right: Miller Mead v Minister of Housing and Local Government

[1963] 2 QB 196

per Upjohn J, Ormston v Horsham Rural District Council [1966] 17 P. & C. R. 105 per Lord Denning MR at 108, BT Fleet Ltd v McKenna

[2005] EWHC 387 (Admin)

per Evans-Lombe J at [22].

[46]To my mind this is not a fair criticism. The Tribunal indicated in paragraph 55 the scope of the requirement and left it to the parties in the first instance to seek to agree the terms of a modified schedule in the light of its findings, rather than doing the drafting itself. In the absence of agreement, the matter can be considered by the Tribunal under rule 34 of Schedule 1 of the Employment Tribunal (Constitution and Rules of procedure) Regulations 2004. There has been no dialogue between the parties to seek to reach agreement because of this appeal, and the Tribunal proceedings have been stayed (for example in relation to costs which have yet to be dealt with) pending this appeal. There is a procedural mechanism for making the modified terms of the schedule sufficiently certain for MWH to know what it has to do to comply, either by agreement or in default of agreement by further decision of the Tribunal.

Conclusion

[47]The appeal will be dismissed.