In contrast to many sporting fixtures, in HM Inspector of Health & Safety v Chevron North Sea Limited 2018, the Supreme Court recently decided that a Scottish approach (HSE v Chevron North Sea Limited  CSIH 29 should triumph over an English approach (Hague v Rotary Yorkshire Limited  EWCA Civ 696)!
Under section 22 of the Health and Safety at Work Act 1974 an Inspector may serve a Prohibition Notice if he/she are of the opinion that an activity is being carried on, or likely to be carried on, giving rise to a risk of serious personal injury.
Prior to 2008, to have the Prohibition Notice affirmed, the HSE merely had to persuade the Tribunal that the Inspector’s opinion was genuinely held, on reasonable grounds. However, in Chilcott v Thermal Transfer Ltd  EWHC 2086 (ADMIN) the High Court held that in deciding whether the relevant risk existed and they would have served that notice, the Tribunal was entitled to have regard to information which might not have been in existence at the date of the notice.
In Hague v Rotary Yorkshire Limited (2014) EWHC 2126 (ADMIN) the High Court held that in deciding whether it would have served the notice at the time it was served, the Tribunal was restricted to looking at the information which was, or ought reasonably to have been, available to the Inspector, following such investigation as ought reasonably to have been undertaken. The Tribunal was not to consider later events amounting to hindsight, and of which the Inspector had no knowledge or means of knowledge at the time the Prohibition Notice was issued.
In 2015 (EWCA Civ 696) the Court of Appeal upheld that view on the basis that the focus of the provision is that the Inspector is concerned with the prevention of injury at that time. ‘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’.
In HSE v Chevron the Inspector served a Prohibition Notice because he considered that corrosion to the stairway and stagings of an oil installation in the North Sea caused a risk of serious injury from falling through them.
Chevron obtained an expert report sometime after the notice, which demonstrated that (with the exception of a panel which the Inspector had struck with a fire fighting axe in order to test the extent to which it was corroded!) all the metalwork met the British Standards and gave rise to no risk. In their 2016 decision (CSIH 29) the Scottish Inner House allowed Chevron to rely on this evidence which was not before the Inspector and which he could not reasonably have been expected to know about. The Inner House declined to follow Hague stating that: ‘the fundamental problem with the approach of Laws LJ (in Hague) 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 … 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.’
HSE v Chevron Supreme Court Match result
Relying heavily on Hague v Rotary Yorkshire the HSE appealed to the Supreme Court on the basis that section 24 (s.24) conferred a restricted right of appeal and the Tribunal was only entitled to take into account material which was, or could reasonably have been, known to the Inspector at the time the notice was issued. They argued that the Tribunal was not allowed to take into account the expert report evidence which had not been available to the Inspector at the time of the notice.
Chevron argued in response that s.24 gave an unrestricted right of appeal on the facts and that all relevant facts could be taken into account including those which had become available after service of the notice.
The Supreme Court unanimously dismissed the appeal holding that on an appeal under s.24 the Tribunal is not limited to considering the matter on the basis of material which was or should have been available to the Inspector. The appeal was not against the Inspector’s opinion but against the notice itself, as the heading of s.24 indicated. The appeal involved the Tribunal looking at the facts on which the notice was based. The Inspector’s opinion about the risk, and the reasons why he formed it and served the notice, could be relevant as part of the evidence shedding light on whether the risk existed, but there was no good reason for confining the Tribunal’s consideration to the material that was, or should have been, available to the Inspector. In ascertaining what the risk in fact was, the Tribunal is entitled to take into account all the available evidence relevant to the state of affairs at the time of service of the Prohibition Notice, including information coming to light after it was served. Rotary Yorkshire Ltd v Hague (Health and Safety Inspector)  EWCA Civ 696 was overruled in part (see para.18 of judgment).
The decision in Chevron provides some welcome clarity. The wider interpretation of evidence that can now be considered to support an appeal of Prohibition Notices, reinforces the importance of advice to clients on these potential appeals. The making of an appeal can:
- Allow application for suspension of the notice pending disposal of the appeal
- Defer registration of the notice on the HSE database to allow the appeal process
- Prevent the HSE from relying on the Prohibition Notice as evidence of breach of duty and therefore an admission of guilt in any subsequent prosecution
A successful appeal can avoid:
- Damage to reputation and ability to tender for contracts
- Business disruption and additional costs
- Registration on the HSE database
- Commission of an offence (post successful appeal) for failure to comply with the notice
It is important to give proper consideration to challenging a Prohibition Notice immediately. An appeal must be presented within 21 days of service of the notice. Expert evidence is often necessary and can take time to receive. However, you can lodge an appeal whilst you secure any necessary expert evidence.
If you would like to find out more about this case, please speak to your usual Partner at Plexus or:
Laurie Traynor, Partner
DDI: 0131 3229 253