England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Nottingham Law Courts 60 Canal Street Nottingham Nottinghamshire NG1 7EL
		24th February 2012

1. MR JUSTICE BEATSON: The issue before this court is whether the contents of a Safety Alert Action Note issued by the Health and Safety Executive on 3rd December 2010, in the light of an inspector's investigation into an accident in 2009 involving a fairground ride called The Crazy Frog breach the Provision of Services Regulations 2009 SI 2009 No 2999. It is submitted by the claimant, Dr Gary Fawcett, that it does so because it required inspection of the rides to be by companies registered with a specified inspection body, ADIPS.
2. Proceedings were issued on 14th February 2011. At that time the claimant mounted a wide-ranging challenge to issues to do with the inspection process concerning this fairground ride. At a hearing on 5th July 2011 I granted permission to apply for judicial review on one ground only. That was the challenge to the Safety Alert Action Note.
3. Underlying this challenge is a dispute about the ADIPS Scheme. The claimant, the principal in Wilson Consultants of Derby and involved in a company Fairground Equipment Safety Scheme Ltd has conducted investigations in relation to the safety of Crazy Frog fairground rides and other matters and he is, through his firm, a commercial rival of ADIPS Ltd, which is the Amusement Devices Inspection Process Procedure Scheme.
4. The claimant maintains that the effect of the defendant's method of proceeding, coupled with the fact that many operators belonged to associations which require them to use ADIPS registered inspectors constitutes a restriction on the provision of services contrary to the regulations.
5. The defendant's case maintains that the ADIPS Scheme has contributed to a significant reduction in fairground accidents and one of the reasons that the defendant supports it is that it has the support of the major industry associations. It was also endorsed by the Roberts Review of Fairground Study in 2000. The defendant considers that there would be a risk of fragmentation if there is a move from the current model to alternatives which are not supported by trade associations and which might lower safety standards. Those broader issues however do not directly arise in these proceedings.
6. I will first summarise the factual background, then the legal background, and then the submissions of the parties. I will then turn to my conclusions.
7. The Crazy Frog fairground ride is manufactured by a Spanish company. There are about 18 of the rides in the United Kingdom. The ride was first imported in 1999. Since then there have been three accidents. None have resulted in a fatality. An accident in 2005 involving a Crazy Frog ride, which resulted in injuries, led the claimant to start investigating their safety. Since that date, in broad terms, the claimant has been attempting to get the defendant to take action in relation to the rides.
8. The accident that led to the investigation, which in turn led to the Safety Alert Action Note, occurred on 29th July 2009. Part of a Crazy Frog ride collapsed due to metal fatigue. The Health and Safety Executive caused an inspector to undertake an investigation and to report . That report was released to the claimant in November 2010. The Safety Alert Action Notice was issued by the defendant within 2 weeks of that on 3rd December. Its material parts first set out in the background. Secondly, they summarised the investigation report and then in a section headed "Ride Controllers- Action Required". The latter stated:

"The machine involved in this accident is probably not typical of the majority of travelling machines in that it will probably have worked harder during its life. The fact that its radial arms have developed fatigue cracking demonstrates though that this cracking is not only possible but probable over time. The majority of the machines in the UK will now have exceeded (or will soon exceed) the fatigue lives for the radial arms in either of the scenarios in the design reviews examined."

This section then continued:

"The legal duty to ensure that a fairground ride is safe to operate lies with the Controller. The controllers of all Safeco Crazy Frog rides should now:

1. Have the areas identified in this Alert examined if they have not already done so for any evidence of poor quality weld repair or fatigue cracking and have any defects repaired by a competent person.

2. Consult with ADIPS inspection bodies registered to carry out design reviews and NDT testing to review to the current NDT schedule and ensure that all areas where fatigue cracking could reasonable(sic) be expected to occur have been identified, and suitable intervals of NDT , using an appropriate technique have been identified.

3. Ensure that where the design life of the radial arms has been exceeded, eg are more than 5 years old the NDT schedule is reviewed by an ADIPS registered inspection body competent to carry out design review and the NDT schedule is adequate to ensure that the increased possibility of fatigue cracking and propagation is addressed by the frequency and type of NDT examination."

9. Paragraph 4 of this section stated that it "would be good practice" for controllers to conduct regular visual checks of the areas identified in the alert for surface breaking cracks and, if any are found, to take the machine out of use immediately and seek the advice of their ride examiner.
10. The relevant legal framework is to be found in the Health and Safety at Work Act 1974 and the Provision of Services Regulations. The Health and Safety at Work Act imposes a duty on the Health and Safety Executive inter alia to protect persons against risks to health or safety arising out of in connection with activities (see section 1). The functions include a power to direct investigations and enquiries (see section 14). They also include a general duty to advise inter alia employers and other relevant persons on matters relevant to safety (see section 11(2)). By section 13(1) a Health and Safety Executive is given power to do anything which is calculated to facilitate or is conducive or incidental to the performance of its functions.
11. Section 6 of the Act provides:

"General duties of manufacturers etc. as regards articles and substances for use at work.

(1) It shall be the duty of any person who designs, manufactures, imports or supplies any article for use at work or any article of fairground equipment—

(a) to ensure, so far as is reasonably practicable, that the article is so designed and constructed that it will be safe and without risks to health at all times when it is being set, used, cleaned or maintained by a person at work;

(b) to carry out or arrange for the carrying out of such testing and examination as may be necessary for the performance of the duty imposed on him by the preceding paragraph;

(c) to take such steps as are necessary to secure that persons supplied by that person with the article are provided with adequate information about the use for which the article is designed or has been tested and about any conditions necessary to ensure that it will be safe and without risks to health at all such times as are mentioned in paragraph (a) above and when it is being dismantled or disposed of; and

(d) to take such steps as are necessary to secure, so far as is reasonably practicable, that persons so supplied are provided with all such revisions of information provided to them by virtue of the preceding paragraph as are necessary by reason of its becoming known that anything gives rise to a serious risk to health or safety."

12. I turn to the Provision of Services Regulations. It is common ground that inspection bodies are service providers within regulation 2 of the regulations and that the defendant is a "competent authority" within regulation 3. Regulations 21 and 22 prohibit a competent authority from making access to a service activity subject to certain restrictions. Regulation 21(1)(f) prohibits a competent authority from making access to or the exercise of a service activity subject to "the direct or indirect involvement of competing operators including within consultative bodies (i) in the granting of authorisations or (ii) in the adoption of other decisions of the competent authorities."
13. Regulation 22 provides that:

"2.—(1) A competent authority must not make access to, or the exercise of, a service activity subject to any of the requirements specified in paragraph (2) unless the conditions specified in paragraph (3) are met. A competent authority must not make access to or the exercise of a service activity subject to any of the specified requirements."

The specified requirements in subparagraph (2) include requirements "which reserve access to the service activity in question to particular persons providing the service by virtue of the specific nature of the activity;..."

14. It is the claimant's case that the defendant has, in the Safety Alert Action Note, restricted access to the service activity in question to those within the ADIPS Scheme. The defendant's case is that, notwithstanding the language of the Safety Alert Action Notice, it does not limit inspections to inspectors who are ADIPS registered. That is well-known. The Safety Alert Action Notice would have been sent to an industry audience who would have understood that. Moreover, there is good reason to support ADIPS.
15. The defendant relies on four witness statements. First, that of Mr Sandell, an HSE Inspector. His statement was made on 17th August 2011. Secondly, Cameron Adam, a Principal Inspector of Health and Safety. His statement was made on 16th September 2011. The defendant also relies on the evidence of Luke Ditchburn, the general manager of ADIPS and Jack Schofield, a roundabout proprietor and engineer and a Secretary and founding member of one of the industry bodies. Their statements were respectively made on 21st and 25th July 2011.
16. The starting point in analysing the rival submissions must be consideration of the nature of a Safety Alert Action Note. The Health and Safety Executive's website has a page headed "What are health and safety bulletins?" This deals with safety alerts. It states:

"About safety alerts

Aim of bulletin: Safety alerts are for major faults that would result in a serious or fatal injury and where immediate remedial action is required.

Safety alerts are issued when there is a specific safety issue that without immediate action being taken could result in a serious or fatal injury. When dangerous equipment, processes, procedures or substances are identified during or after an investigation or as the result of a notification from Europe or industry, HSE may need to notify users and other stakeholders of the danger. HSE may also need to notify other users of the steps that need to be taken to rectify the fault or protect people against it; a safety alert is one way of achieving this."

17. Mr Sandell's statement states under the heading "Fairground Safety Alert/Action Notes":

"These Notes are written by HSE and distributed to ride owners, ride examiners and HSE NFIT Inspectors as quickly as possible once information is known about an incident that could be repeated and affects safety. They are written as advice and guidance for that audience only and take only and take account of the often low literacy levels in the travelling fairground community. Depending upon the machine in question they will sometimes assume that all ride owners involved are members of association that are part of ADSC. The notes are guidance not legal requirements."

18. ADSC is a reference to the Amusement Devices Safety Council. The ADIPS Scheme works under the umbrella of that organisation. The evidence is that the major industry bodies are members of that Council and that members control 90% of fairground rides in the UK.
19. Mr Sandell's evidence is that ADSC members "publicly support the ADIPS Scheme to the exclusion of others and requires as a condition of membership that their members have their rides tested under the ADIPS Scheme". He makes it clear that is not a requirement placed on ADSC members by the HSE, although the HSC publicly supports only the ADIPS Scheme.
20. The evidence of Mr Sandell and the other witnesses is that the Safety Alerts Action Notes are written for a specific audience rather than the public in general. They are not the only way that the HSE disseminates information. It is likely, and appears likely, that this Safety Alert Action Note was issued under the general power in section 13(1) of the 1974 Act, to ensure that employers are provided with information and advisory services on matters relevant to safety and are kept informed of and adequately advised on such matters.
21. As to other organisations such as the claimant's company, the evidence before me is that, whilst supporting the ADIPS Scheme, the HSE does not require ride controllers to use ADIPS registered bodies provided that the body that is they do use is competent to carry out the work. This is the evidence of Mr Sandell and Mr Ditchburn. It is also seen from a number of documents before me.
22. The first of these is another part of the HSE's website under the heading "Fairground Rides Amusement Devices Inspection Procedures Scheme (ADIPS)". In it this paragraph:

"If ride controllers do not follow the guidance contained within HSG 175, they will have to demonstrate that they are taking other equally effective measure to comply with their legal duties. This will require controllers to be able to demonstrate that those inspecting their rides are competent to do so. Engaging the services of an ADIPS registered inspector is normally sufficient to demonstrate this."

23. Secondly, there is HSG 175. This is the HSE's guidance on safe practice for fairgrounds and amusement parks. Paragraph 5 of the first section records that all the members of the Fairgrounds Joint Advisory Committee agree that the information in the guidance is appropriate to help duty holders meet their legal requirements and expect their members to follow the systems described. It also states:

"Duty holders are free to meet their legal obligations in other ways but they need to be prepared to show that what they did was equally effective."

24. This provides support for ADIPS but it also recognises that duty holders are free to meet legal obligations in other ways. If they did, however, they would have to demonstrate that the other ways were as effective. This is also reflected in a number of other documents, including the minutes of the Amusement Device Safety Council on 4 June 2005, where a discussion is noted involving Mr Sandell in which he stated that the HSE would prefer people to use ADIPS and support it but added they could not force them to. The context of this minute was the view that more should be done by the HSE to get people to use ADIPS.
25. There are similar statements in the note of the meeting on 21st November 2010 of the Association of Independent Showman and that of the Society of Independent Roundabout Proprietors on 13 February 2011. Email correspondence on the issue has also been published on the website of the claimant's company, FESS.
26. Undoubtedly, looking at this material, there is a steer towards ADIPS inspection bodies. Those who do not use them are required to justify and demonstrate that what they do use is equally good. But what the claimant submitted is that, first, the terms of notice that he challenged do not reflect this dual approach of support for ADIPS but expression of freedom to use an alternative, if it is as good. He submitted that the language of the Safety Alert Action Note is inconsistent with such an approach. The claimant's case is that the word "should" in the preamble to the instruction means "must". He argued that interpretation is supported by the fact that these safety alerts are to deal with major faults where immediate remedial action is required. He effectively submitted that it would be odd to give uncertain and unspecified advice if immediate remedial action is required. He submitted that reading the document would not alert an operator to the fact that the operator did not have to "consult with ADIPS inspection bodies registered to carry out design reviews" or "to ensure that the NDT schedule is reviewed by an ADIPS registered inspection body."
27. Mr Blundell, on behalf of the defendant, accepted that the text in the language of the detailed grounds of resistance which were not drafted by Mr Blundell that "may seem" to suggest that only ADIPS registered inspection bodies may be used. But he argued that in fact it is clear this is not so, both from the language of the Safety Alert Action Note itself and, more importantly, from its context and the people to whom it was addressed and issued. It is clear that addressees and readers would understand the position. He submitted that "should" can be understood as 'ought to' and that there is no use of the word "only" in the paragraphs asking for consultation with ADIPPS's inspection bodies or review by an ADIPS registered inspection body.
28. This was a difficult argument to make. Mr Blundell put it as well as it could be put. But it is in fact fundamentally inconsistent with Mr Sandell's evidence that these documents are written in simple and clear language and they take account of what are described the often low literacy levels in the travelling fairground community. To rely on the absence of the word "only" to allow a member of the audience to whom these documents are addressed understand there is an alternative is a sophisticated approach to a document.
29. Mr Blundell submitted that these documents are produced quickly. This document was produced quite soon after the inspector's report became available to the claimant, some months later the inspector's final report was completed and published on 4 May 2010.
30. But Mr Blundell's main submission relied on the nature of the document. He argued it is not a legal document but is written for a very specific purpose. It is to deal with a particular incident and effectively a communication about it to ride operators. That of course does not mean that it is not setting out a requirement. But would those to who it was addressed be misled?
31. I have set out the evidence about what the HSE's policy was in general in relation to the use of ADIPS. The claimant submitted that the guidance related to pre-use and annual inspections and not to work such as that resulting from a Safety Alert Action Note. The guidance he maintained does not in fact mention such alerts. He submitted that it could not be the case that controllers would be fully aware of the position. First, he relied on the language used. Secondly, the guidance related to a different sort of thing. Accordingly, he submitted that the context did not assist the defendant. He also submitted that I should not look at the context because what was needed was certainty and that is obtained from the words alone. But in interpreting working documents of this sort it is common place to look at the context and to look at to whom they are addressed. It does appear that this document assumed that all the ride owners involved were members of associations that were part of ADSC, which in turn would mean they had to use ADIPS. Whereas those heavily involved in the associations may be fully aware of the regimes, the only evidence that I have as to the position of a ride controller is that of Mr Schofield. Mr Schofield's evidence is that at the SERP Spring Meeting in 2001 Mr Sandell made it clear that ride controllers did not have to have an ADIPS test as long as their test was competent. But Mr Schofield also said this made no real difference to SERPS members because it was a condition of their membership that they were tested by an ADIPS registered examiner.
32. In short, the context suggested that there is no requirement to use an ADIPS inspector. In the case of the Crazy Frog Mr Blundell stated that all the UK operators were members of the Showman's Guild and therefore were required to use the ADIPPS's inspector.
33. In that very narrow context, on that very narrow ground, I have concluded, not without difficulty, that this application should not succeed.
34. The Safety Alert Action Note is, to put it at its very lowest, unfortunately worded. It may reflect the dominance of the ADIPS Scheme within the industry. But it is particularly incumbent on those with the regulatory responsibilities in an industry where there is both dominance, and also regulatory restrictions and inhibitions on competition, to be evenhanded and to be seen to be evenhanded. This document I have examined is one which sets out what those controlling Crazy Frog rides should do to comply with their legal duty to ensure that the ride is safe to operate. Only in the context of the very restricted publication of this document can it be said it was not misleading. Mr Sandell's statement (at pages 7 and 8) stated that the safety action notes were:

"... sent to all Member Associations of the ADSC and to ADIPS and on HSC's internal Intranet for inspectors on that basis because those people would have had used the ADIPS system." It was only because of this that it was not misleading.

35. The material before me reflects a mindset which is unfortunate and bears down on those, like the claimant, who are not within the Scheme but who operate systems which are potentially capable of being satisfactory, so long as they are demonstrated to be satisfactory. For these reasons, this application is dismissed. In the light of my reasons I do not propose to make any order as to costs.
36. MR BLUNDELL: I am very grateful for that judgment, may I take instructions for a brief moment? There was a consultation on the point that I am going to address your Lordship, I am taking instructions on in just a moment.
37. MR JUSTICE BEATSON: Whilst you are getting instructions let me explain to -- can you wait a minute?
38. What I have done is you have failed but if you heard what I said then you will see and I have not made an order of costs against you, and of course Mr Blundell may try to persuade me that I ought to, but I have not because of what I have said in the judgment. Yes Mr Blundell?
39. MR BLUNDELL: In fact I will just take instructions. (Pause)
40. My Lord I am very grateful for the indication your Lordship has given. Those behind me have taken instructions, we are not going to seek to persuade your Lordship to make any other order.
41. MR JUSTICE BEATSON: Thank you very much. The papers are here which can come back to you.
42. MR BLUNDELL: I am grateful my Lord.