Scottish Court of Session Decisions

FIRST DIVISION, INNER HOUSE, COURT OF SESSION

[2016] CSIH 29

XA41/15

Lord President

Lord Menzies

Lord Bracadale

 

OPINION OF LORD CARLOWAY, the LORD PRESIDENT

 

in the appeal by

 

HM INSPECTOR OF HEALTH & SAFETY

Appellant;

against

 

CHEVRON NORTH SEA LTD

Respondents:

Act: Young QC; Anderson Strathern

Alt: Gray QC, B Smith; Lesley A Gray, Solicitors

29 April 2016

Introduction
[1]        This is an appeal from a decision of the Employment Tribunal at Aberdeen dated 27 March 2015.  The Tribunal cancelled a Prohibition Notice, which the appellant had served on the respondents on 23 April 2013.  The appellant challenges the decision of the Tribunal on two grounds.  One of these raises a particularly important issue on the scope of an appeal to the Tribunal under section 24 of the Health & Safety at Work etc. Act 1974.  That is whether, and to what extent, the Tribunal can take into account information which was not available at the time of the notice.

 

Background
[2]        The respondents are the operators of an offshore installation in the Captain Field of the North Sea.  The installation is a processing station for crude oil.  Both employees and non-employees of the respondents visit and work on the installation.  For the purposes of the Health & Safety at Work etc. Act 1974, the respondents are responsible for ensuring, as far as is reasonably practicable, the health and safety of all persons on the installation.

[3]        The main mode of access to, and egress from, the installation is by helicopter.  The only access to the helipad is by three stairways, which lead to staging running around the perimeter of the helipad and one metre below it.  The staging is constructed of steel grates and the stairways of steel treads.  Two of the stairways (at the port and starboard sides) are used as the main access to, and egress from, the helipad.  The other one (the forward access point) is used as an evacuation route.  The helipad, and thus the stairways and staging, are the primary evacuation route for the installation.

[4]        On 23 April 2013, the appellant and his colleagues visited the installation for the purposes of carrying out a planned inspection.  They examined the stairways and staging around the helipad.  The inspection identified significant areas of what was thought to be corrosion in the stairway treads on all three stairways, as well as on the grates of the staging.  A loading test was carried out on a tread of the port side stairway, albeit with a fire axe rather than a hammer, in an attempt to shed corroded steel from the grates to determine the thickness of the steel underneath.  The axe sheared through the steel.  This led the appellant to conclude that the steel was corroded to such a degree that it would not be able to support the weight of an evacuation of multiple men carrying work equipment and potentially running.  One of the appellant’s colleagues was a corrosion expert.  The appellant considered that the stairways and staging were unsafe.  He therefore served a prohibition notice on the respondents.

[5]        The notice stated that, in the appellant’s opinion, the use of the stairways and staging “which are (sic) likely to be carried on” will involve a risk of serious personal injury, by reason of persons falling through them.  This would involve a contravention of certain offshore installation regulations:

“because the steel grating of the stagings and the stairway treads are in a weakened condition because of corrosion which compromises safe evacuation”.

 

[6]        At the time of the notice, the appellant was aware that remedial works, in the form of securing scaffolding boards to the grates had commenced on the port side stairway, although not on the other two stairways.  The installation manager had offered an undertaking that the remedial work would be undertaken straight away, and that the staging and stairways would not be used until the works had been completed.  The appellant and his colleagues were to remain on the installation until 25 April 2013.  By the time they departed on that date, all the remedial work had been carried out other than the work to the forward stairway.

[7]        Following the events of 23-25 April 2013, the respondents arranged for the stairways and staging to be removed from the installation, placed in a secure container, and transported to the lab of Exova for testing.  Testing did not take place until November 2013.  It involved load bearing testing on samples of the stairways and staging, to determine whether the strength of them met the requirements of the British Standard for floor surfaces and walkways.  The most corroded panels were selected for testing.  The testing revealed that, except for the panel which had been sheared by the fire axe, all met the British Standard requirement.  The damage to the panel by the fire axe, which sheared the bars rather than applied a load, meant that the strength of that panel, prior to it being damaged, could not be determined.

 

Legislation
[8]        The test which the appellant required to consider at the point of serving the Prohibition Notice is set out in the 1974 Act.  Section 22(2) provides:

“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 [prohibition] notice”.

 

Section 22(4) provides that the notice will have effect immediately unless otherwise provided.  The key consideration for an inspector in considering whether to issue a notice is whether the circumstances involve or will involve a risk of serious personal injury.

[9]        The heading of section 24 reads “Appeal against ... prohibition notice”.  The provision (s 24(2)) is that a person served with such a notice may “appeal to an employment tribunal”.  On such an appeal, the Tribunal may either cancel or affirm the notice.  If it chooses to affirm, it may make such modifications as it thinks fit.  An appeal does not suspend the notice unless the Tribunal so directs.  The respondents appealed the issue of the notice.  The Tribunal determined the matter in their favour and cancelled the notice.  It is against that decision that the appellant appeals.

 

The Tribunal’s decision
[10]      As a consequence of an objection by the appellant to the admission of evidence of the Exova testing, the Employment Tribunal approached the appeal in two stages.  They first considered how they would determine the appeal without the evidence of the testing.  They proceeded on the basis that the function of the Tribunal “… was not limited to reviewing the genuineness and/or the reasonableness of the inspector’s opinions.  It was required to form its own view, paying due regard to the inspector’s expertise” (Railtrack v Smallwood [2001] ICR 714, Sullivan J at para 44).  They decided that they ought to focus on a period of time on 23 April 2013 and consider what they would have done, had they been in possession of the same information as the appellant had at that time.  They noted that, at the time of the notice: barriers had been put in place to prevent access to the stairway and staging; the next flight in was not due until the following day; work had commenced (or was about to commence) to make safe the area; the installation manager was helpful and had expressed willingness to remedy the problem straight away; and, most significantly, the appellant was to remain on the installation until 25 April.  The Tribunal considered that this was a key factor which distinguished this case from others.  The appellant would, the Tribunal reasoned, remain “in effective control of the situation at the locus” until 25 April.  On that basis, the use of the stairway and staging was “not likely to be carried on”.  There was no risk of serious personal injury.  

[11]      Service of a notice at that point had not been the only means of dealing with the situation.  The appellant knew that the area had been blocked off and that work had started to make safe the area.  This would have been completed at two of the stairways in a matter of hours.  In those circumstances, the Tribunal considered that the service of the notice on 23 April had been both unnecessary and unreasonable.  There was nothing to stop the appellant from waiting until he was leaving the installation before deciding whether to serve a notice.  At the time that the appellant had left, work had not yet commenced on the forward access stairway.  On that basis, the Tribunal considered that the appellant would have been justified in serving a notice in respect of the forward access only, as he would “no longer be able to rely on the good intentions of [the installation manager]”.  On the first stage, the Tribunal decided to affirm the notice but to modify it to cover only the forward access stairway.

[12]      The Tribunal then considered whether the Exova testing results ought to be taken into account, and whether that would alter the decision which they had taken at the first stage.  They noted that there was no guidance in the legislation on whether evidence, which did not exist at the time of a notice, ought to be taken into account.  The Tribunal considered that their purpose was to “examine and determine” the risk which actually existed at the time of the notice.  They were to re-make the decision, albeit having regard to the expertise of the inspector.  The Tribunal considered that they should not close their eyes to later matters in determining the risk which existed at the time of the notice, nor should they restrict the evidence heard to that which existed at that time.  Evidence which had come into existence after the notice could be taken into account, as long as it shed light on what the situation had been at the time of the notice (Chilcott v Thermal Transfer [2009] EWHC 2086 (Admin), Charles J at para 12).

[13]      The Tribunal considered that there was no basis to exclude the evidence of testing.  The condition of the metal in November 2013 was circumstantial evidence, from which an inference could be drawn about its state at the time of the notice.  The Tribunal specifically noted that the expert “agreed with the conclusion that the testing established that there was no risk of serious personal injury”.  They did not consider that they could “gainsay” the evidence of the expert, and concluded that, at the time of the notice, the condition of the stairways and staging, although visibly corroded, was not such as to pose a risk of serious personal injury.  The Tribunal explicitly rejected the appellant’s argument that, to take into account evidence which did not exist at the time of the notice, would be to undermine the purpose of the legislation, which was to prevent workers being exposed to health and safety risks.  The Tribunal considered that nothing in their judgment altered the power of an inspector to issue a notice when he considered that there was a risk of serious personal injury.  The appeal process was designed to correct any error on the part of an inspector, either by modification or cancellation of the notice.  It would be unjust for a notice to remain, when it transpired that its factual basis was erroneous.  This was true whether the information, which revealed the true state of affairs, could have been known to the inspector at the time or not.  

 

Submissions
Appellant
[14]      The appellant submitted that the Tribunal had erred in law at both the first and second stages.  On the first they had erred in three respects.  First, they had erred in concluding that, because of temporary measures put in place, the activities were not likely to be carried on and therefore that the risk was lessened.  This was the wrong approach in law (Railtrack v Smallwood (supra) at paras 67-68, 88, 98-99 & 104).  It did not recognise that temporary measures could be altered.  The correct approach was to serve the notice to prohibit the activity until the problem was remedied.  Secondly, the Tribunal had erred in concluding that the notice was unnecessary and unreasonable, but that it would have been partially appropriate two days later when the appellant left the installation.  This was effectively a criticism of prematurity, which was liable to distract from the real issue of whether there was a risk of serious personal injury at the time (Chilcott v Thermal Transfer (supra) at para 18).  The Tribunal ought to have considered whether, on the basis of the information available, or which ought to have been available, to the appellant, the risk justified the notice.  Considerations of delay to “wait and see” how remedial works progressed were irrelevant.  Thirdly, the Tribunal had erred in failing to apply the correct test to determine whether the risk existed.  They had used the benefit of hindsight, which they ought not to have done (Chilcott v Thermal Transfer (supra) at para 10-12).

[15]      The fact that it was possible for the respondents to resume use of the infrastructure in the face of a risk of serious personal injury, even if this was unlikely, justified the notice.  The 1974 Act was concerned with the possibility of injury (R v Board of Trustees of the Science Museum [1993] 1 WLR 1171, Steyn LJ at p 1177; approved in R v Chargot [2009] 1 WLR 1, Lord Hope at paras 21-22).  A restrictive approach to the concept of risk would undermine the purpose of the Act.  The approach of the Tribunal would require an inspector to consider the likelihood of the installation manager obtempering his instructions, or otherwise interfering with the temporary barriers.  The length of the visit of the appellant was not a principled basis on which to determine whether or not a notice ought to be served. An inspector was not obliged to give a company the opportunity to remedy a risk before a notice was served (Rotary Yorkshire v Hague [2015] EWCA Civ 696).  If there was a risk of serious personal injury upon inspection, a notice ought to be served.

[16]      The Tribunal had erred in determining the second issue, which was whether they ought to have considered the evidence of the Exova testing.  They ought to have restricted consideration to evidence which was actually available, or ought to have been available on a reasonable investigation, to the appellant at the time that the notice was served (MWH UK v Wise [2014] ACD 96, Popplewell J at para 22).  The Tribunal had erred in following the obiter dictum in Chilcott (supra, Charles J at para 12).  This now had to be read in the context of Rotary Yorkshire v Hague (supra).  The Court of Appeal had confirmed that the only evidence relevant to the risk of serious personal injury was such evidence as was available (or ought reasonably to have been available) to the inspector at the time (Rotary Yorkshire (supra) at paras 30-31 and 34).  The Scottish Courts should follow the Court of Appeal on the interpretation of a United Kingdom statute, where the policy considerations were the same in the two jurisdictions.

[17]      At the second stage, the Tribunal had erroneously allowed the evidence of the Exova expert to usurp their judicial function.  The Tribunal had failed to evaluate the expert evidence properly and then to consider it against the statutory background.  Instead, they had simply accepted the expert’s evidence that there was no risk of serious personal injury.  This approach demonstrated an error of law (Davie v Magistrates of Edinburgh 1953 SC 34, LP (Clyde) at 39).  

 

Respondents
[18]      The respondents submitted that the Tribunal had been entitled to conclude that: the service of the notice on 23 April 2013 had been unreasonable and unnecessary; at the time of the notice, there had been no risk of serious personal injury; and use of the stairways and staging had been unlikely.  There had been no error of law.  The issue was whether the Tribunal had correctly approached their function under section 24 of the 1974 Act.  There was no Scottish Authority, but the English courts had considered the issue on a number of occasions.  They had interpreted section 24 as permitting an appeal on the merits (Railtrack (supra), Sullivan J at para 44; Chilcott (supra), Charles J at para 9; Rotary Yorkshire (supra), Laws LJ at 27).  The Tribunal was required to form its own view, rather than to review the decision of the inspector.

[19]      On the first issue, in deciding whether or not the service of the notice was appropriate, the Tribunal had identified and applied the correct test.  They were entitled to take into account the temporary protective measures which had been put in place.  They had been entitled to conclude that at the relevant time there was no risk and that the use of the stairways was not likely.  The Tribunal had correctly applied the test in Chilcott (supra at para 21), and approved by the Court of Appeal in Rotary (supra).  They had been entitled to hold, on all of the evidence before them, that the service of the notice at that time had been unreasonable and unnecessary.  Once the Tribunal had determined that the notice had been unnecessary, it was not open to them to consider whether it would have been appropriate two days later.  The finding that the notice should have been modified to cover only the forward access steps was erroneous.  

[20]      On the second issue, the Tribunal had been entitled to conclude that the evidence of the testing was relevant in so far as it had a bearing on whether the risk existed at the time.  The Tribunal had correctly applied Chilcott.  Rotary Yorkshire had proceeded upon an incomplete and erroneous interpretation of Chilcott.  The critical passage (at para 12) had been omitted.  The ratio of Rotary Yorkshire was erroneous in so far as it purported to limit the scope of the Tribunal’s appellate function to “an appraisal of the facts which were known or ought to have been known to the inspector at the time of the decision” (Rotary Yorkshire (supra) at para 31).  That was contrary to the function of the appeal process under section 24.  In providing for the modification of an affirmed notice and for the appointment of an assessor, Parliament had given the Tribunal wide powers, which inferred a full consideration of all of the available evidence, regardless of whether or not it was known, or ought to have been known, at the relevant time.  It was equitable that, where a notice had been issued in error, the Tribunal should correct the error.  This did not undermine the purpose of the provisions in section 22.  The effect of the appeal was not to suspend the notice.  An inspector could exercise his function, including in an emergency, on the basis of the information which he had at the time.  Balanced against that was the right of the operator to a full appeal, given the significant reputational damage, expense, and potential exposure to criminal sanctions, that followed from the issuing of a notice.  The Tribunal had properly dealt with the expert evidence, and had not substituted it for its own consideration of whether there was a risk of serious personal injury at the relevant time.

 

Decision
[21]      According to section 24 of the Health and Safety at Work etc. Act 1974, a person who has been served with a prohibition notice may “appeal”.  It does not say what it is that can be appealed, but the heading states that the appeal is “against” the notice.  The most obvious construction of that is that the person affected can appeal upon the basis of what is stated in the notice.  That will include a challenge to a statement of fact that, in this case, the metal was in a weakened condition because of corrosion.  In normal course, the appellant ought to be entitled to lead such evidence as he wishes to demonstrate that, at the material time (ie the date of the notice) the metal was not in the averred condition.  It is thus not immediately apparent why an appeal “against” a notice should be confined to an enquiry into the correctness or reasonableness of the inspector’s decision to issue the notice having regard to the evidence which was, or might reasonably have been, available to him when he did so.  But for the respect which the court has for the views of the Court of Appeal, a decision would have proceeded simply on that basis.  It is, of course, the reasoning in Rotary Yorkshire v Hague [2015] EWCA Civ 696 which has prompted a more studied examination of the issue.

[22]      In Railtrack v Smallwood [2001] ICR 714, Sullivan J reached a “provisional view” (at para 44) that a hearing on an appeal under section 24 of the 1974 Act:

“was not limited to reviewing the genuineness and/or reasonableness of the Inspector’s opinions.  It was required to form its own view, paying due regard to the Inspector’s expertise”.

 

That appears to be a sound view.  The appeal under section 24 is not, unlike appeals to the court under section 11 of the Tribunals and Inquires Act 1992, confined to points of law.  An appeal on the facts is equally open.

[23]      Sullivan J’s provisional view had been reached in the absence of contrary argument.  The respondent had said that he was reserving his position.  The matter was examined in Chilcott v Thermal Transfer [2009] EWHC 2086 (Admin).  Both sides accepted Sullivan J’s approach and Charles J applied it.  He described it as correct, but noted the absence of any contrary argument or reference to authority.  Nevertheless, he observed (at para 9) that:

“the statutory structure of this litigation, leads me to conclude, like [Sullivan J] that it is open to the Employment Tribunal on an appeal to reach its own decision, and its focus is not upon what would essentially be public law challenges to the decision of the Inspector.

10        ... the focus of attention on the appeal is to the situation on the ground when the notice is actually served ...”.

 

He continued (para 12):

“... what has to be established is the relevant risk as at that time.  In determining whether or not that risk exists as at that time, the court does not close its eyes to matters that occurred after that time, but that is not the same approach as ... [understood] generally to be the expression ‘judged with the benefit of hindsight’.  What the court’s function is, is to identify on the evidence before it, which is not restricted to matters that were in existence before a particular date, what the situation was as at that particular date.  Did the relevant risk exist? ...”.

 

Once more, this seems eminently sensible.

[24]      It has to be borne in mind that a prohibition notice may have a profound effect on an operator’s business.  It may close it, where any works required to avoid the perceived danger are prohibitive.  The existence of a notice in the public records may have an adverse effect on a contractor’s reputation and his ability to tender.  It would be strange indeed if the operator could not mount a successful appeal based upon the simple contention that, whatever the inspector thought at the time based on the information available to him, it was now known, based on more complete or additional information, perhaps even accepted on all sides, that the risk founded upon did not in fact exist.  If that is so, the respondents’ appeal, in so far as it is based on the Exova testing, is a legitimate one.  This analysis has no bearing upon an inspector’s ability to act, in the interests of health and safety, where he forms the opinion that a risk exists.  The emergence of new material demonstrating that he was in fact quite wrong does not, of itself, invalidate the notice or its effect at the time. 

[25]      Thus Hague v Rotary Yorkshire [2015] EWCA Civ 696 is troubling.  That case had involved a prohibition notice in respect of the use of electrical conductors.  The appellant was not sure that they were dead, although he thought they were, in the absence of certain documentation.  The following day it was established that the conductors were indeed dead.  The Tribunal took the view (para 14) that their task was to decide the appeal on the state of knowledge available (or which could have been acquired by reasonable investigation) at the time of the notice.  They held that a risk had been present because of the possibility of the conductors being live, even although they were not.

[26]      Collins J reversed the Tribunal’s decision (see para 18), but on the basis that, put shortly, it could have been ascertained at the time that the conductors were dead.  The Court of Appeal determined (at para 21) that no error of law, as required by section 11 of the 1992 Act, had been identified by Collins J.  They therefore restored the Tribunal’s judgment.  However, Laws LJ (with whom Tomlinson and Kitchin LJJ agreed) went on to consider the scope of an appeal under section 24 of the 1974 Act.  He accepted (at para 27) that the section conferred a right of appeal on the facts as well as the law.   He expressly endorsed Sullivan J’s provisional view in Railtrack v Smallwood (supra), but did not consider that this meant that the Tribunal were entitled to take into account “later events” of which the inspector could have had no knowledge at the time of the notice.

[27]      Laws LJ quoted certain parts of Charles J’s judgment in Chilcott v Thermal Transfer (supra) (see also MWH UK v Wise [2014] ACD 96, Popplewell J at para 22).  He stated (para 31) that Charles J’s approach in Chilcott “was correct”.  This meant that:

“... the question for the inspector is whether there is a risk of serious personal injury.  In reason such a question must surely be determined by an appraisal of the facts which were known or ought to have been known to the inspector at the time of the decision.  He or she is concerned with the prevention of injury at the time, that is the focus of the provision, which, it should be remembered, contemplates action in a possible emergency.  The Employment Tribunal on appeal are and are only concerned to see whether the facts which were known or ought to have been known justify the inspector’s action”.

 

It is undoubtedly correct that an inspector can only form a view based on his perception of the facts and his assessment of risk.  However, that does not affect the scope of an appeal on the facts.  The difficulty with the reasoning of Laws LJ, as expressed, is that, whilst endorsing Charles J’s view as correct, it reaches the opposite conclusion, having omitted to quote the essential part of the dictum in Chilcott (supra at para 12) that, although the Tribunal requires to ascertain whether a risk existed at the time of the notice, it is not restricted to looking at information known at the time.  It can take into account evidence, bearing upon the facts in existence at the time of the notice, which only emerge at a later date.

[28]      The fundamental problem with the approach of Laws LJ is that it prohibits an appeal on the facts in a situation where it can be demonstrated that the facts or information upon which the inspector proceeded were wrong.  That is the essence or purpose of many appeals on the facts.  In short, there is no sound basis for restricting appeals under section 24 to what would in essence be a form of judicial review of the inspector’s opinion.  An appeal on the facts is a much wider concept and, endorsing the views of Sullivan and Charles JJ, it enables an appellant to prove, using whatever competent information is available at the time of the Tribunal’s hearing on the appeal, that the factual content of the notice was wrong and that, accordingly, however reasonable the inspector’s opinion was at the time, had the true facts been known, he would not have reached it.

[29]      It follows that, in relation to the second issue raised in the appeal, the Tribunal were correct in having regard to the Exova Report.  It was then for the Tribunal to reach their own view upon all the evidence.  It is not possible to decern any error of law in the Tribunal’s assessment (at para 159) that at the time of the notice “the condition of the gratings and stairs, albeit plainly affected by considerable corrosion, did not in fact involve a risk of serious personal injury”.  That was the evidence of the expert called by the respondents and the Tribunal were entitled to accept it.  That involved no criticism of the appellant.  As the Tribunal noted (at para 160):

“Any item of plan or equipment may seem to be so weakened by age or other conditions that it appears no longer fit for its purpose, but closer inquiry and testing might show otherwise”.

 

[30]      The view taken on the second issue is sufficient to dispose of the appeal.  In relation to the first issue, which presupposes the exclusion of the Exova results, once again the Tribunal were entitled to reach their own view based on the evidence which they had heard.  They took into account a number of features, including: the temporary measures which had been put in place to prevent the use of stairways and staging; the remedial steps which were underway; the undertakings given by the installation manager; the fact that the stairways and staging would not be used until the remedial works were completed; and the presence of the appellant until 25 April.  All of these circumstances justified the findings that there was no risk of serious personal injury and that service of the notice was both unnecessary and unreasonable.

[31]      The criticisms of the Tribunal’s approach are essentially directed towards the weight attached by the Tribunal to particular facts and circumstances.  As such there is no true error of law identified, in the absence of an unreasonable conclusion.  In a particular case, a Tribunal or an inspector may, depending on the evidence, decide that any temporary measures taken, or undertakings given, or progress of remedial works noticed, do not persuade them or him that the risk is effectively eliminated.  It will also depend on the particular facts and circumstances.  However, a Tribunal or inspector is not bound to discount these factors when assessing whether the particular operation (in this case evacuation) will involve the relevant risk.  In some cases, a Tribunal or inspector may decide that a risk remains or will revive.  That may be the situation where a serious accident has occurred and the relevant activities will be resumed at some point (eg Railtrack v Smallwood (supra) at paras 97-98).  There is no absolute proposition that temporary means, undertakings and remedial steps can, or should, be ignored when carrying out the risk equation.  Equally, the presence of an inspector on site is a factor, albeit not a decisive one, in assessing the risk.  The Tribunal or inspector may regard that as of little or significant weight according to the particular circumstances.

[32]      The Tribunal may have erred in going on to consider what might have been appropriate two days after the notice.  That does not affect their decision on the issue of risk at the time the notice was served.  They did not err by applying hindsight.  They considered what they would have done (both with and without the Exova testing) on the facts known at the time.  The appeal must accordingly be refused.

FIRST DIVISION, INNER HOUSE, COURT OF SESSION

[2016] CSIH 29

XA41/15

Lord President

Lord Menzies

Lord Bracadale

 

OPINION OF LORD MENZIES

 

in the appeal by

 

HM INSPECTOR OF HEALTH & SAFETY

Appellant;

against

 

CHEVRON NORTH SEA LTD

Respondents:

Act: Young QC; Anderson Strathern

Alt: Gray QC, B Smith; Lesley A Gray, Solicitors

 

29 April 2016

[33]      I am in complete agreement with the views expressed by your Lordship in the chair, both as to the disposal of this appeal and as to the reasons for that conclusion.  In light of this, it may be regarded as otiose that I should say anything further.  However, in view of the decision of the Court of Appeal in Hague v Rotary Yorkshire Ltd [2015] EWCA Civ 696, and the respect which is due to that decision, there are a few observations which I should like to make about the issue of whether the Tribunal could properly take account of information which was not available at the time at which the Prohibition Notice was served. 

[34]      An appeal under section 24 of the Health & Safety at Work etc. Act 1974 is an appeal on the facts – it is not simply a review of the reasonableness of the inspector’s opinion – Railtrack plc v Smallwood [2001] ICR 714 at para [44]; rather, the Tribunal is required to form its own view, paying due regard to the inspector’s expertise.  Sullivan J’s approach in Railtrack was adopted by Charles J in Chilcott v Thermal Transfer Ltd [2009] EWHC 2086 (Admin) at para 9.  The Court of Appeal in Hague v Rotary Yorkshire Ltd confirmed this – Laws LJ observed at para 27 that:

“I have no doubt that section 24(2) of the HSWA confers a right of appeal on the facts and, unlike section 11 of the 1992 Act, not just the law.”

 

In the present appeal, senior counsel for the appellant accepted that the Tribunal was not just performing a public law review function, but was hearing an appeal on the facts. 

[35]      That, it seems to me, is of critical importance in this appeal.  If the Tribunal is charged with the responsibility of considering whether there was in fact a risk of serious personal injury at the time of the issuing of the Prohibition Notice, then I consider that it must be entitled to have regard to evidence which post-dates the issuing of the Notice, but which may cast light on that factual issue.  As Charles J observed in Chilcott (at para 12), that is not the same as judging with the benefit of hindsight.  The focus of the Tribunal’s attention is on the factual question – did the relevant risk actually exist at the time that the Notice was issued?  That is a quite different focus from the question – did the inspector act reasonably in all the circumstances when he issued the Notice, or did he act perversely?  So, the Tribunal should be focusing on whether, on the basis of all the evidence before it (including evidence which post-dated the issuing of the Notice, but which may cast light on the existence of the risk at the time that the Notice was issued) the risk actually existed at the time of the Notice – not on the inspector’s reasons and state of knowledge at that time. 

[36]      With the greatest of respect to Laws LJ, it appears to me that he may have failed to bear in mind at para 27 of his Opinion in Hague v Rotary Yorkshire Ltd that the focus of the Tribunal was on the actual risk at the relevant time, rather than on the reasonableness of the inspector’s assessment and reasoning, and the extent of his knowledge, or means of knowledge, when issuing the Notice.  He asked, and answered, the question as follows:

“What facts are the Employment Tribunal to consider?  Those which go to the propriety of the Prohibition Notice at the time it was issued or also later events amounting to hindsight and of which the inspector at the time may have no knowledge or means of knowledge.”

 

The answer which he gives there is an answer focused on the reasonableness of the inspector’s decision, the extent of his knowledge or means of knowledge, and the propriety of the Notice which he issued.  It seems to me to be an answer appropriate in the context of judicial review, but not in the context of a section 24 appeal where the Tribunal is considering whether the risk actually existed at the time that the Notice was issued.

[37]      It may be entirely reasonable and proper for an inspector in a particular set of circumstances, on the basis of the information and knowledge available to him at the time, to reach the opinion that activities involve, or will involve, a risk of serious personal injury.  In those circumstances, he may serve a Prohibition Notice in terms of section 22 of the 1974 Act.  However, the propriety of the Notice, the reasonableness of the inspector’s assessment of risk, or the extent of his knowledge, are not necessary considerations for the Tribunal in an appeal under section 24 of the Act.  They may arise – indeed, the Tribunal in the present case heard evidence and submissions about some of these matters and gave their opinion on them in what has been referred to as “the first issue”.  The crux of the matter before the Tribunal in this appeal was not this, however; it was, in an appeal on the facts such as this, whether the risk did in fact exist at the time of the Notice.

[38]      It follows from this analysis that I cannot agree with the observations of Laws LJ at para 34 of his opinion in Hague v Rotary Yorkshire Ltd.  He began there by observing that to accede to the arguments of counsel for the respondent would risk distorting the section 22 function, and went on as follows:

“The primary question for the Employment Tribunal is whether the issue of the Notice was justified when it was done.  An inspector may rightly apprehend a risk and be justified in acting on his or her apprehension even though later necessarily unknown events may demonstrate that, in fact, there was no danger.  Section 24 is not, in my judgment, to be construed so that it may appear to call in question the propriety of a Notice which it may well have been the inspector’s duty to issue at the time.”

 

[39]      The construction of section 24, which I favour, does not, it seems to me, appear to call in question the propriety of a Notice which it may well have been the inspector’s duty to issue at the time, because the focus of the Tribunal is not on the propriety of the Notice, but on whether (on the basis of all the evidence before it) the activities involved, or would involve, a risk of serious personal injury at the time.  That question may well be answered in the negative, but nonetheless cast no doubt on the propriety of the inspector’s decision.  An inspector may quite properly and reasonably take a decision to issue a Notice under section 22, and yet a Tribunal may (equally properly and reasonably) cancel the Notice on a section 24 appeal.  I do not consider that this weakens the enforcement provisions of the Act, nor does it undermine the authority or responsibility of an inspector who is considering issuing a Prohibition Notice under section 22.  On the contrary, it merely recognises that an inspector’s assessment and decision under section 22 often requires to be taken as a matter of urgency, when all the relevant knowledge and information may not be to hand.  The alternative construction would have the result that the person on whom a Notice is served may have no redress and would not be able to appeal it successfully, with potentially serious consequences in terms of cost, possible criminal sanctions, and reputational damage.  That is not an intention that I should readily attribute to Parliament when it enacted sections 22-24 of the 1974 Act.

[40]      For these reasons, together with the other considerations to which both your Lordship in the chair and Lord Bracadale have referred, I agree that this appeal must be refused.

FIRST DIVISION, INNER HOUSE, COURT OF SESSION

[2016] CSIH 29

XA41/15

Lord President

Lord Menzies

Lord Bracadale

 

OPINION OF LORD BRACADALE

 

in the appeal by

 

HM INSPECTOR OF HEALTH & SAFETY

Appellant;

against

 

CHEVRON NORTH SEA LTD

Respondents:

Act: Young QC; Anderson Strathern

Alt: Gray QC, B Smith; Lesley A Gray, Solicitors

29 April 2016

[41]      I am grateful to your Lordship in the chair for setting out the circumstances and the submissions of the parties.  I agree that for the reasons given by your Lordship this appeal should be refused. In the light of the importance of the question as to whether, and to what extent, the Tribunal can take into account information which was not available at the time of service of the notice I would add a few observations of my own on that issue.

[42]      It is common ground that the approach of the Tribunal is to assess what it would have done had it been at the site at the material time, having due regard to the expertise of the inspector (Railtrack Plc v Smallwood [2001] ICR 714, Sullivan J at para 44; Chilcott v Thermal Transfer Limited [2009] EWHC 2086 (Admin), Charles J at para 9; Hague v Rotary Yorkshire Limited [2015] EWCA Civ 696, Laws LJ at para 27).  In carrying out that exercise the Tribunal will determine as a matter of fact whether the risk identified in the notice did exist at the point in time when the notice was served.  The question sharply raised in this appeal relates to the nature and scope of the evidence which the Tribunal is permitted to take into account in answering that question.

[43]      It is not unusual for information which emerges after an event to cast light back on precisely what was the state of affairs at the time when the event occurred.  Circumstantial evidence obtained after an event may allow an inference to be drawn as to what was the state of affairs when the event occurred.  Is such an approach legitimate in an appeal under section 24 of the Health & Safety at Work etc Act 1974?

[44]      At paragraph 149 of its judgment the Tribunal notes that by November 2013 when the gratings and stairs were examined by experts at Exova the corrosion affecting them was likely to have advanced only very marginally from its condition in the previous April.  Since corrosion plainly had a progressive effect, it was certain that the condition in April could not have been any worse than it was in November.  Thus the Tribunal felt able to infer that the condition of the gratings and stairs as found by Exova was the same or, if anything, minutely worse than it had been in April: “If they were to be safe for human passage in November, they must have been so also in April”.  At paragraph 159 the Tribunal concluded that as at the time the notice was served on 23 April 2013 the condition of the gratings and stairs, albeit plainly affected by considerable corrosion, did not in fact involve a risk of serious personal injury.

[45]      In deciding whether the Tribunal was entitled to take the evidence of the Exova Report into account it is necessary to note the decision of the Court of Appeal in Hague v Rotary Yorkshire Limited (supra) which was delivered after the Tribunal had issued its decision.  The court held that an Employment Tribunal on appeal “are and are only concerned to see whether the facts which were known or ought to have been known justify the inspector’s action” (para 31).  In rejecting the argument that a Tribunal, in determining as a matter of fact whether the risk identified in the notice did exist at the point in time when the notice was served, could take into account facts which emerged at a later date but which pointed to the factual situation at the time when the notice was served, Laws LJ, with whom Tomlinson and Kitchin LJJ agreed, said at para 34:

“To accede to [the] argument would, I think, risk distorting the section 22 function.  The primary question for the employment Tribunal is whether the issue of the notice was justified when it was done.  An inspector may rightly apprehend a risk and be justified in acting on his or her apprehension even though later necessarily unknown events may demonstrate that, in fact, there was no danger.  Section 24 is not, in my judgement, to be construed so that it may appear to call in question the propriety of a notice which it may well have been the inspector's duty to issue at the time.”

 

While recognising the highly persuasive authority of this decision of the Court of Appeal I have come to the view that this court should not follow it.  I would respectfully make three points.  First, as your Lordship in the chair has pointed out, the Court of Appeal while approving the approach of Charles J in Chilcott, made no reference to what was said by him at paragraph 12 of his judgment, namely, that the court's function was to identify on the evidence before it, which was not restricted to matters that were in existence before a particular date, what the situation was at that particular date.

[46]      Secondly, I agree with the general point made by the Tribunal at paragraph 164 of its judgment that if it were subsequently to be discovered, through some form of subsequent investigation, that the factual basis for the imposition of the notice was actually incorrect and there was in fact no risk, there would plainly be an injustice if the admission of subsequent evidence were impermissible and were to prevent the notice being cancelled.  That would enable an enforcement notice to remain in place against an employer even when the factual basis for its service had been shown not to have existed or to be erroneous.

[47]      A similar point was made by Mr Gray on behalf of the respondents when he postulated a possible situation which could arise: a prohibition notice was served; subsequent evidence demonstrated beyond any doubt that there was no basis in fact for the service of the notice; that evidence was accepted at all hands.  Despite that, if that evidence were inadmissible the Tribunal could not have regard to it and the appeal would require it to be refused.  The recipient of the notice would be required to carry out, perhaps extensive, work at considerable cost and in the knowledge that failure to do so would constitute a criminal offence.  That would be a singularly unfortunate outcome particularly having regard to the adverse effect on reputation and potential commercial disadvantage which being placed on the Health and Safety Executive Public Register of Enforcement Notices may entail.

[48]      Thirdly, I would respectfully disagree with the conclusion that the approach which in this case was adopted by the Tribunal is liable to distort the section 22 function.  It was argued on behalf of the appellant that there should be nothing to inhibit the inspector serving a prohibition notice.  I do not see why the possibility of the factual situation being demonstrated by later evidence to have been different should inhibit an inspector in serving a notice.  An inspector who decides to serve a notice must do so on the basis of his factual judgement at the time.  It is not readily apparent why the possibility that later evidence may demonstrate that there was in fact no basis for serving the notice should create an additional burden on the inspector carrying out his function.  As was pointed out by the Tribunal at paragraph 162 of the judgment, its decision did not weaken the ability of inspectors to prevent risk of serious personal injury.  The decision had no effect on an inspector’s power to remove what he perceived as a risk of serious personal injury, and to do so instantly.

[49]      I agree, therefore, that there is no sound basis for restricting appeals under section 24 to what would essentially be review of the inspector's opinion.  An appeal under section 24 is not restricted in this way.  It follows that the Tribunal was entitled to take into account the Exova report and that the appeal must be refused.