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

A CDM co-ordinator must identify significant gaps in pre-construction information and give the client specific advice where further safety information is reasonably obtainable. It is not enough for relevant warnings to be buried in existing documents or for the client to be expected to identify the gap unaided.

The co-ordinator need not possess specialist expertise to perform the detailed hazard assessment, but must understand what hazards require investigation and whether they have been addressed. On an appeal against an improvement notice, the tribunal must form its own view of the breach and its cause, and may modify the notice to promote future health and safety. A systems failure may justify modification even where incompetence was not established.

MWH was appointed as construction design and management co-ordinator for a refurbishment project involving a tunnel. The pre-construction information contained earlier asbestos surveys and references to possible asbestos in pipe wrapping, but no full refurbishment and demolition survey covering the tunnel.

An inspector served an improvement notice alleging breaches of the Health and Safety at Work etc. Act 1974 and the Construction (Design and Management) Regulations 2007. The Newcastle Employment Tribunal affirmed the notice with modifications, finding that MWH had failed to advise the client that construction should not begin until a further survey had been obtained, although the underlying cause was a systems failure rather than lack of competence. MWH appealed on three grounds: breach of duty, the permissibility of the modification, and uncertainty in the notice.

1. Appeal dismissed. The tribunal was entitled to find that MWH breached Regulation 20 by failing to advise the client to obtain and include a full asbestos survey in the pre-construction information.

2. The CDM co-ordinator had to take reasonable steps to identify and collect relevant information, including information reasonably obtainable, and to advise the client of significant gaps. The duty included advising the client on compliance with its obligation to provide compliant pre-construction information to designers and contractors. It also extended, where appropriate, to co-ordination with other contractors.

3. The co-ordinator was a key safety adviser, but was not required to possess the specialist expertise needed to undertake the detailed asbestos assessment. The required expertise was sufficient understanding to identify the hazard and recognise that the existing information did not address it. The presence of asbestos was an obvious potential hazard in this project. Including a recommendation in a lengthy report and a general warning about bitumen wrapping did not discharge the duty.

4. The principal contractor’s later intention to obtain a survey did not cure the earlier breach. The pre-construction information had to be adequate before tendering, and the client was entitled to receive specific advice identifying what was missing and what it had to commission.

5. Under sections 24 and 82 of the Health and Safety at Work etc. Act 1974, the tribunal had to put itself in the inspector’s position, decide what notice was justified, and affirm, cancel or modify it. That required consideration of the cause of the breach because the notice’s purpose was to prevent or minimise recurrence. The tribunal was therefore entitled, and obliged, to substitute a systems-failure basis for the inspector’s incompetence finding.

6. BT Fleet Ltd v McKenna [2005] EWHC 387 (Admin) was distinguishable. It concerned a notice whose identified breach and specified remedy were irreconcilable. It did not establish that a tribunal could never modify a notice after finding a breach. The reference to Regulation 4 nevertheless had to be removed because the tribunal had found that incompetence was not the cause of the breach.

7. The schedule could be settled by agreement or, failing agreement, by further tribunal decision under rule 34. The notice was not therefore unlawfully uncertain. The modified notice was to remain directed to requiring an effective system ensuring that appropriate advice was given and that work did not begin before the necessary survey.

• Newcastle Employment Tribunal: on 12 December 2012, affirmed the improvement notice with modifications.
• High Court (Administrative Court): dismissed MWH’s appeal on all three grounds. The reference to Regulation 4 was to be removed, but the tribunal’s systems-failure modification was lawful.