Mr H Vann, Counsel v Mark Welsh, HM Inspector of Health & Safety — 2023

Clancy Docwra Limited appealed a Prohibition Notice issued by HM Inspector of Health and Safety Mr Mark Welsh on 22 June 2022 in relation to work within an excavation at Wardentree Lane, Spalding. The Tribunal held that the relevant trench was about 0.85m to 1m deep, 2.7m wide and 5m long, and found that the operatives, Mr Reece May and Mr Richard Benson, were trained, had been briefed on the site documents, and completed a Dynamic Risk Assessment and permit to dig on the day of the work.

Applying the approach in Chevron North Sea Limited, the Tribunal considered the risk at the time the notice was served and found there was no real, material risk of serious personal injury. It accepted that the likelihood of a collapse causing injury was low, that there was no need for a worker to have their head between the pipework and the excavation face, and that at least part of the trench sides were cohesive and the upper section was sloped. The Tribunal also noted that the workers had sufficient space to work and opportunity to escape, so any risk was negligible.

The Tribunal further held, for completeness, that there was no breach of regulation 22(1) of the Construction (Design and Management) Regulations 2015. It found that supports or battering were not required on the facts, and in any event Clancy Docwra had taken all practicable steps through its excavation guidance, temporary works guidance, construction phase plan, method statement, job-specific risk assessment, inspection on 17 June 2022, Dynamic Risk Assessment on 22 June 2022 and permit to dig. The appeal succeeded and the Prohibition Notice was cancelled.