Cork County Council v Health and Safety Authority

• Jurisdiction: Ireland
• Judge: Mr. Justice Hedigan
• Judgment Date: 07 October 2008
• Neutral Citation: [2008] IEHC 304
• Court: High Court
• Docket Number: [No. 988 S.S./2007],2007 No. 988 S.S.
• Date: 07 October 2008

THE HIGH COURT

THE DISTRICT COURT AREA OF CORK CITY

2007 No. 988 S.S.

IN THE MATTER OF SECTION 52 (1) OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT,1961

THE DISTRICT COURT AREA OF CORK CITY DISTRICT NUMBER 19

THE SAFETY,HEALTH AND WELFARE AT WORK ACT,2005,SECTION 66 (7)

BETWEEN

CORK COUNTY COUNCIL

APPELLANT

AND

THE HEALTH AND SAFETY AUTHORITY

AND

VINCENT D'ARCY OF THE HEALTH AND SAFETY AUTHORITY- INSPECTOR

RESPONDENTS

Abstract:

Health & Safety law - Practice & procedure - Consultative case stated - HAS - roads - Macadam - Work in progress - Statutory interpretation - Local authority - Whether provisions of Safety Health & Welfare At Work Act 2005 applied to local authority

Facts: A consultative case stated was posed to the High Court by the District Court in respect of a dispute between a County Council and the respondent in relation to an Improvement Notice about roads. The respondent raised concerns as to the use of a form of macadam on roads and relayed health and safety concerns in respect of the road which they alleged was left incomplete. The issue arose as to whether the works were ongoing or active and whether s. 66 of the Safety, Health and Welfare at Work Act, 2005 applied to a local authority. The respondent argued that the roadway was a work in progress whereas the appellant argued that the Act did not apply.

Held by Hedigan J. that the improvement plan submitted entailed compliance with the strict terms of the legislation had been undertaken. The Act applied to a local authority but only where there were roadworks in being or imminent. The respondent could issue an improvement notice if activity was in prospect or occurring. The respondents had failed to particularise what was to be done to avoid criminal liability.

Reporter: E.F

1 JUDGMENT of Mr. Justice Hedigan delivered on the 7th day of October, 2008.

2 1. This is a consultative case stated for the High Court by District Judge David Riordan, Judge of the District Court, Cork District which was transmitted to the High Court on 11th July, 2007. The case stated as set out by the District Judge is as follows:

CONSULTATIVE CASE STATED

3 1.1 This is a case stated pursuant to Section 52 (1) of the Courts (Supplemental Provisions) Act, 1961, whereby I, District Judge David Riordan, assigned to District No. 19, the area of Cork City, hereby refer the questions of law identified below to the High Court for determination.

4 1.2 The questions referred arise in the context of an appeal by Cork County Council ("the County Council") against an Improvement Notice served on the County Council by the Health & Safety Authority ("HSA") on January 29th 2007. The Improvement Notice was served pursuant to Section 66 (1) of the Safety, Health & Welfare at Work Act, 2005 ("the 2005 Act"). Pursuant to Section 66 (7) of the 2005 Act, a person aggrieved by an Improvement Notice may appeal such Notice to the District Court. County Council appealed the Improvement Notice by Notice of Appeal dated February 9th 2007. That Notice of Appeal is attached as Appendix 1 to this case stated.

5 1.3 The appeal was returnable before me on Monday March 5th 2007. At that stage it was apparent that a number of legal issues arose. Accordingly, I adjourned the appeal to May 23rd 2007, for

6 argument of those issues.

7 1.4 On May 23rd 2007, the parties attended before me to make legal submissions. The County Council was represented by David Holland S.C. (with whom Eileen Barrington BL appeared) instructed by Mary Roche, Cork County Solicitor. The HSA was represented by Jarlath Fitzsimons B.L. instructed by Matheson Ormsby Prentice solicitors.

8 1.5 The parties agreed that, with a view to making legal submissions, it was necessary to hear some limited evidence.

2. FACTS AS FOUND ON EVIDENCE ADDUCED

9 In the light of the evidence adduced, I found the following facts.

10 2.1 Mr. Vincent Darcy is an inspector for the purposes of the 2005 Act. He gave evidence as to the chain of events culminating in the issuing by the HSA of the Improvement Notice in respect of which the appeal was brought. The documentation generated by the HSA and the County Council is attached at Appendix 2 and can be summarised as follows:

Chronology

April 5th 2006

11 The HSA wrote to Cork County Council raising concerns regarding the use of dense bitumen macadam ("DBM") road surface on roads outside the 50km or 60km speed limit zones.

12 The HSA stated,inter alia, that:

13 •Allowing the situation where roads had not yet received the final intended surface without appropriate control measures in place is unacceptable and may give rise to an unsafe situation which not only endangers the safety of the councils employees but also of all road users.

14 • Roads which have not had their final surface applied i.e. not surface dressed constituted an "incomplete project" coming within the scope of the Safety, Health & Welfare at Work (Construction) Regulations, 2001.

15 The HSA requested the Council to ascertain whether any such roads exist in County Cork, and if such roads exist what control measures are in place in these roads. The HSA asked the Council to confirm the procedures and control measures it has in place which deal with issues of concern outlined in the letter and for future projects of this type.

April 6th 2006

16 Mr. M. Moloney, Cork County Manager, wrote to the HSA indicating that he had received the letter dated April 5th 2006 and stated that he was arranging to have the issue as to whether there were any dense bitumen macadam overlays on roads in Cork County Council's area that lay outside the 50kph speed limit zone that were not surface dressed] examined and that he would revert to the HSA as soon as possible

May 24th 2006

17 HSA write again to County Council raising the same concerns contained in its letter dated April 5th 2006. In total, the HSA raised five queries.

June 27th 2006

18 Mr. Maurice Moloney, Cork County Manager, County Council replies to the letter dated May 24th, 2006 and confirms that 2 sections of unsurfaced dense bitumen macadam, base course roads had been identified in the functional area of Cork County Council as at June 7th 2006, and had been surfaced dressed by June 27th 2006. Moreover, Mr. Moloney identified a further four local tertiary roads with unsurfaced DBM overlay. It was indicated that this latter category of roads would be surface dressed within two weeks of June 27th 2006.

August 11th 2006

19 The HSA, per Inspector Vincent Darcy ("Mr. Darcy") issued a "Direction for Improvement Plan" ("the Direction") pursuant to Section 65 of the 2005 Act.

20 • The Direction stated Mr. Darcy's opinion that the following activities outlined in the addendum, are likelyto occur and are likely to involve a risk to the safety, health and welfare of persons. "

21 • In the addendum the activity identified is"Road works/Operation of Safety Management System for Roadworks"

22 • The addendum identifies "Defects Observed" as follows:

23 "The procedures and control measures that Cork County Council have in place to deal with the use of unsurface (sic) dressed Dense Bitumen Macadam roads and other incomplete surface dressings outside the 50km speed limit zones are inadequate. "

24 • Three categories of "Remedial Action" were required - being (in summary), the following:

25 1. The identification of the hazards and the assessment of risks

26 associated with the use of vehicles on temporary surfaces such as DBM and other incomplete surface dressings at speeds greater than 50km/hr;

27 2. The identification of appropriate control measures for use of vehicles on such temporary surfaces;

28 3. The development of procedures for the identification and provision of adequate traffic management systems for different stages of road works.

September 8th 2006

29 Mr. John Walsh, Head of Personnel, Cork County Council responds, making an "interim proposal" indicating that it will

30 1. conduct an "immediate survey" to establish the existence of the relevant surfaces within its area

31 2. arrange for the dressing of such surfaces within 2/3 weeks

32 3. suspend the use of such temporary surfaces pending the production of procedures and control measures for the HSA's approval - which were expected to emerge at national level.

October 6th 2006

33 HSA issuesSection 65 (4) Notice, asserting that Mr. Darcy is "not satisfied that the Improvement Plan as submitted by you is adequate"and directing it be revised "as specified in the addendum to this Notice and resubmitted… "

34 The addendum identifies "Defects Observed" in summary terms as follows:

35 • Inadequate identification of the hazards and the assessment of risks associated with the use of vehicles on temporary surfaces such as DBM and other incomplete surface dressings

36 • Inadequate procedures and control measures for use of vehicles on such temporary surfaces outside the 50Km/hr speed limit zone

37 • Inadequate identification of specific traffic management systems for different stages of road works including, pre-commencement, construction phase, interim phase (including any time gap between laying base and final road surface) and

38 identification of competent persons.

October 10th 2006

39 The HSA writes to the County Council enclosing a flowchart document entitled "A Short Guide to Traffic Management for Realignment, Strengthening or Maintenance Works on Roads" ("the Flowchart"). This is provided on the basis that it"may assist you in the development of your revised improvement plan".The flowchart contains general guidance on procedures and control measures in relation to issues raised in the Section 65(4) Notice issued on October 6th 2006.

November 16th 2006

40 The County Council(perMr. John Walsh, Head of Personnel) submits its revised Improvement Plan - the covering letter setting out certain reservations in...