You may be aware that the Court of Appeal's judgment in R -v- Willmott Dixon Construction Ltd. has recently been handed down and the decision went against the Appellent Willmott Dixon.

Willmott Dixon was prosecuted together with Marks & Spencer following an inspection at a M&S store under refurbishment in 2007. I won't go into the details of the case as it will no doubt be done to death by Kevin Bridges or Micheal Appleby in the Health and Safety Practitioner.

Suffice to say that the Court of Appeal's judgment is likely to have significant future implications for the way we identify and manage asbestos risks in particular, and health and safety risks generally.

In coming to its judgment, the Court of Appeal held that (and I paraphrase):

i. Where there is a risk of invisible asbestos fibres being suspended in the air, those fibres are capable of being inhaled by anyone not wearing respiratory protective equipment.

ii. There is no safe threshold when it comes to the possibility of contracting mesothelioma.

iii. While legislation does not impose absolute liability but it does impose strict obligations in terms of justifying the steps that are taken by dutyholders.

iv. The "social policy" imperitive [i.e. that people regard asbestos as extremely dangerous] may give rise to criminal liability [i.e. over-riding thresholds set down in legislation].

v. In determining what actions are needed, a duty holder needs to ask whether the aims of sctions 2 and 3 of the HSWA have been "fully accomplished"? and if not, that is sufficient for there to be considered the existence of "risk" and for the requirements of section 40 of the HSWA to be brought into play.

vi. The duty holder needs to ask himself whether this is a case where a "reasonable person would appreciate there was a risk of exposure to asbestos with its potential consequences?" If so, he should take steps to guard against it.

vii. The actual circumstances of the case should be drwn together in the context of the social policy prevailing at the time and notwithstanding expert evidence, the jury should be allowed to consider whether there was a material risk.

My own view is that the judgment is flawed but in the absence of an appeal to the Supreme Court, following this case, there is a danger that the HSE will bring prosecutions based on the 'risk of a risk' being present because the so-called 'public perception' is that a particular set of facts constitutes a danger.

If this does occur, the role, experience, qualifications and actions of the health and safety practitioner are likely to become a key issue in any case.

I would welcome your comments and in particular, any counter argument.

Kind regards.

DJ

This seems to accord with established legal principles?

(from HSE report:)

"The principal contractor at the Bournemouth store, Wilmott Dixon Construction Ltd, failed to plan, manage and monitor removal of asbestos-containing materials. It did not prevent the possibility of asbestos being disturbed by its workers in areas that had not been surveyed extensively."

They need to make the law simpler eg now not only do we have licensed noifiable work but non licensed notifiable work and of course non licensed non notifiable work - it beggars belief.

Bob

The problem with making all asbestos work licensed is that even more builders will exposure workers and others by not ensuring asbestos work is properly managed and removed to save time and money.

I was recently asked to provide RAMS by a friend for a strip out of a flat, when I queried about the asbestos D&R survey I was told that it was not necessary as the building was only 20 years old! I of course corrected my friend. However nothing else was heard. This was a £300k job with bonifide top end designers involved. Until h&s laws are properly enforced and meaningful sentences imposed on those who break the law non-compliance will continue unabated.

Is the OP is leaning towards the fact that such a judgement could give rise to risk avoidance if there is a heightened public perception of a particular risk - and more worrying throwing SFAIRP out of the window...? (point 4 in the verdict..)

I think I see where you are coming from DJ, but unsure if that is the intention of the verdict - I'll have to read the case in more detail.