R v NMC Surfacing Limited & Others
Dominic Adamson QC, together with Kizzy Augustin (Partner) and Jenny Boyden (Senior Associate) of Russell Cooke, secured the acquittal of a roofing company (X) following a two week trial at Southwark Crown Court (sitting in the Nightingale Court at Prospero House). The jury reached their decision unanimously. The Health & Safety Executive alleged that the roofing company X failed to ensure the health, safety and welfare of its employees during the course of a construction project in Bromley and had thus breached section 2 of the Health & Safety at Work etc Act 1974. A worker was struck by a piece of redundant plant which fell whilst it was being lowered from the roof of a building on Bromley High Street using a ginny wheel.
The defence team argued that there could be no breach of section 2 because the workforce supplied to the project by X was made up of self-employed subcontractors (i.e. not employees). Therefore, the section 2 duty was not engaged. Further and alternatively, X also contended that it had taken all reasonably practicable steps to ensure safety because it was acting as a supplier of labour only. X contended that the duty to plan, manage and monitor the construction work to ensure safety rested with the principal contractor (Y) and another roofing contractor (Z) to whom X supplied labour. X contended that it was not expected by either Y or Z to produce the risk assessments and method statements for the work because the obligation to produce that material was on Z (the contractor) subject to the approval of Y (the principal contractor).
Y & Z were also prosecuted for breaches of the Construction Design and Management Regulations 2015. The principal contractor Y was convicted at trial of a breach of regulation 13 of the CDM Regulations 2015 (the duty on the principal contractor to plan, manage and monitor the construction phase so as to ensure safety so far as reasonably practicable). Y argued that it was not the principal contractor because it had not been appointed in writing by the client. This argument was rejected unanimously by the jury. X had previously pleaded guilty to a breach of regulation 15 of the Construction Design & Management (CDM) Regulations 2015 (the duty on a contractor to plan manage and monitor the construction work so as to ensure safety so far as was reasonably practicable). Y and Z will be sentenced at a hearing in May 2021.