Case No: 1999/02315/Z3

IN THE COURT OF APPEAL (CRIMINAL DIVISION)

	Royal Courts of Justice
Strand, London, WC2A 2LL

Wednesday, 26 January 2000	

	B e f o r e :

LORD JUSTICE PILL
MR JUSTICE ROUGIER
and
MR JUSTICE NEWMAN

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	Regina		
	—  v  —		
	Paul Wurth SA		

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
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Mr Wyn Williams QC and Mr Geoffrey Brown appeared for the appellant
Mr Bryan Thomas appeared for the respondent

Judgment
As Approved by the Court

Crown Copyright ©

Wednesday 26 January 2000

JUDGMENT

LORD JUSTICE PILL:

In March 1999 Paul Wurth SA (“the appellants”) pleaded not guilty upon an indictment alleging a contravention of Regulation 13(2)(a)(i) of The Construction (Design and Management) Regulations 1994 (“the 1994 Regulations”), contrary to section 33(1)(c) of the Health and Safety at Work Act 1974 (“the 1974 Act”). On March 18, it was submitted on their behalf that there was no case to answer. His Honour Judge Dutton rejected that submission and gave an indication as to how he would direct the jury to construe the Regulation. Upon that indication, the accuracy of which was challenged by the appellants, the plea was changed to one of guilty. On 26 March 1999, the appellants were fined £60,000 and ordered to pay £50,000 towards the prosecution costs. They appeal against conviction by leave of the single judge.

	The appellants were involved in the design, manufacture, supply and installation of plant and machinery for the steel manufacturing industry. On 28 April 1997, they entered into a contract with Cambrian Stone Ltd to design, supply, install and commission a slag granulation plant at Port Talbot Steel Works. The purpose of the plant was to convert a waste product of the steel making process into a form of granulated sand, a material which can be used in the construction industry. The contract extended to detail engineering, defined as detail drawings of the different parts of the plant.

	On 8 September 1997, Mr Ralph Harrison was fatally injured when a conveyor fell and crushed him. The conveyor was a part of the plant the appellants had contracted to install and the deceased was working on its installation and erection. The conveyor was supported by two latching devices. There had been a simple fault in its design. The latching devices should have incorporated a locking or securing pin. The drawings used by the erectors had not shown the pin. In its absence, the conveyor was unsafe. Tragic in its effect, the error in the drawing was a simple one and the omission of provision for the pin an obvious mistake. 

	The appellants were the designers, within the meaning of that word in the 1994 Regulations, of the project as a whole but denied being the designers of the latching devices. The appellants had employed Fairport Engineering Ltd (“Fairport”) to convert their design into manufacturing and construction drawings. Fairport had contracted the manufacture of the conveyor to the Universal Conveyor Co Ltd (“Universal”). Universal prepared a drawing of the relevant part of the machinery, the conveyor latching post, and submitted it to Fairport for approval in accordance with the contractual agreement. No locking or securing pin was incorporated in the design on the drawing. Fairport submitted the drawing to the appellants for approval, it being a part of the contractual arrangements between them that drawings would be approved within 14 days. The appellants made comments on the drawing but none related to the omission of the pin. Universal then manufactured the latching devices. On the legend on the drawing the name of the appellants appears and it is stated that “this document contains confidential information” and that “this document remains our full property”. 

	Regulation 13  of the 1994 Regulations provides, insofar as is material,: 	
	“(2)	Every designer shall—

(a)	ensure that any design he prepares and which he is aware will be used for the purposes of construction work includes among the design considerations adequate regard to the need—

(i)	 to avoid foreseeable risks to the health and safety of any person at work carrying out construction work or cleaning work in or on the structure at any time, or of any person who may be affected by the work of such a person at work,

(ii)	to combat at source risks to the health and safety of any person at work carrying out construction work or cleaning work in or on the structure at any time, or of any person who may be affected by the work of such a person at work, and

(iii)	to give priority to measures which will protect all persons at work who may carry out construction work or cleaning work at any time and all persons who may be affected by the work of such persons at work over measures which only protect each person carrying out such work;

(b)	ensure that the design includes adequate information about any aspect of the project or structure or materials (including articles or substances) which might affect the health or safety of any person at work carrying out construction work or cleaning work in or on the structure at any time or of any person who may be affected by the work of such a person at work; and

(c)		co-operate with the planning supervisor and with any other designer who is preparing any design in connection with the same project or structure so far as is necessary to enable each of them to comply with the requirements and prohibitions placed on him in relation to the project by or under the relevant statutory provisions.

(3)	Sub-paragraphs (a) and (b) of paragraph (2) shall require the design to include only the matters referred to therein to the extent that it is reasonable to expect the designer to address them at the time the design is prepared and to the extent that it is otherwise reasonably practicable to do so.”

In regulation 2, the Interpretation Regulation, it is stated that:

“ ‘designer’ means any person who carries on a trade, business or other undertaking in connection with which he—

(a)	prepares a design, or

(b)	arranges for any person under his control (including, where he is an employer any employee of his) to prepare a design,

relating to a structure or part of a structure;”

Regulation 2(2) provides—

“In determining whether any person arranges for a person (in this paragraph called ‘the relevant person’) to prepare a design or to carry out or manage construction work regard shall be had to the following, namely—

(a)	a person does arrange for the relevant person to do a thing where –

(i)	he specifies in or in connection with any arrangement with a third person that the relevant person shall do that thing (whether by nominating the relevant person as a subcontractor to the third person or otherwise), or

(ii)	being an employer, it is done by any of his employees in-house;

(b)	a person does not arrange for the relevant person to do a thing where –

(i)	being  a self-employed person he does it himself or, being in partnership it is done by any of his partners; or

(ii)	being an employer, it is done by any of his employees otherwise than in-house, or

(iii)	being a firm carrying on its business anywhere in Great Britain whose principal place of business is in Scotland, it is done by any partner in the firm; or

(iv)	having arranged for a third person to do the thing, he does not object to the third person arranging for it to be done by the relevant person,

and the expression ‘arrange’ and ‘arranges’ shall be construed accordingly.”

The expression “in house” is considered in Regulation 2(3) but need not be considered further for present purposes.

	The Regulations were intended to give effect, subject to exceptions, to a Council Directive of 24 June 1992 “on the implementation of minimum safety and health requirements at temporary or mobile construction sites” (92/57/EEC). A consultative document entitled “Proposals for Construction (Design and Management) Regulations and Approved Code of Practice” was issued by the Health and Safety Commission in October 1992. Annexed to it were draft regulations. Regulation 13 as enacted and headed “Requirements on Designer” is significantly different from the equivalent draft regulation. It is more complex and, read with the definition of “designer” in Regulation 2, the enacted regulation imposes a degree of vicarious liability upon designers. 

	The particulars of offence in the indictment allege that the appellants “failed to ensure that in preparing the design of the latching devices at the INBA Slag Granulation Plant, Port Talbot Steel Works, adequate regard was given to the need to avoid a foreseeable risk to health and safety”. Thus the allegation is based upon a design detail and not upon the overall design of the plant. There is no doubt that the latching devices did present a risk to health and safety. The issue is whether the appellants “prepared” the “design” of the latching devices within the meaning of those words in the Regulations. 

	It is, with respect, difficult to extract a coherent scheme from this part of the Regulations. The difficulties in this case, we regret to say, have been compounded by the somewhat confused way in which the case has been put by the prosecution. It appears to us to have been put in different ways in different times. At a late stage of submissions before this Court, it was sought to argue that Universal had submitted a defective drawing because they in turn had been supplied a defective drawing by the appellants. When asked to produce that defective drawing, Mr Thomas, for the respondent prosecutor, produced a drawing on which provision for a pin had been included. He eventually, and rightly, conceded that the case could not be put on that basis. (Reference was made to a drawing containing the same design defect which had been used at another site.) At the time the judge in the Crown Court gave his rulings, the emphasis, based on submissions of the prosecution, was upon an alleged vicarious liability, though the approval of the design by the appellants was also mentioned by the prosecution as a feature of the case. 

	Upon further analysis, a case based on vicarious liability for the conduct of Universal cannot be sustained. The appellants have not arranged for any person under their control to prepare a design within the meaning of Regulation 2. That is because, under Regulation 2(2)(b)(iv), a person does not arrange for a person to prepare a design where, having arranged for a third person (Fairport) to do the thing, he does not object to the third person arranging for it to be done by the relevant person (Universal). The case can only be put by the prosecution on the basis that the appellants were someone who “prepares a design”. The crucial question in the case is therefore as to the meaning of the word “prepare” and whether the appellants “prepared” the “design of the conveyor latching devices”.

	For the respondent, Mr Thomas submits that under the main contract the appellants were the designers and that brings them within the scope of Regulation 13 with respect to the defective drawing. Their contractual duty extended to design detail. Moreover, notwithstanding the sub-division in Regulation 2 of the work of designers, Regulation 13(2)(a) must be read, as the judge read it, as “any design he prepares or which he arranges to have prepared”. The opening words of Regulation 13(2), “every designer”, cover both categories of design work. To limit Regulation 13(2)(a) to the first category of designer, as defined in Regulation 2, robs Regulation 13(2) of its effect.
	The difficulty with that submission is that Regulation 2 provides for two categories of design work, that of one who “prepares a design” and that of one who “arranges for any person under his control to prepare a design”. Regulation 2(2), in elucidating the second of those categories, sets out situations in which a person does and does not arrange for the relevant person to prepare a design for the purposes of the regulation. A regulation which sets out with such particularity circumstances in which the person charged may be liable where some other person has prepared the design cannot have been intended to impose upon a designer within the first category of the definition the liability for which the respondent contends. The force of that point is not in our view weakened by the fact that the first three categories, (i), (ii) and (iii), under Regulation 2(2)(b) appear to set out situations in which the work is brought back into the first category of “designer” whereas the fourth category (iv), places the work beyond either category. 

	 For the appellants, Mr Wyn Williams QC submits that there is no justification for reading the additional words “or which he arranges to have prepared” into Regulation 13(2)(a). In the Interpretation Regulation, Regulation 2, the work of the “designer” is plainly divided into two categories, first, preparing a design and, second, arranging for certain other people to prepare a design. By adopting the first of those categories, “any design he prepares”, in Regulation 13(2)(a) it was intended to limit the operation of the paragraph to work in the first category. The three words “he prepares and” cannot be ignored. Regulation 13(2) is not deprived of effect, it is submitted, because Regulation 13(2)(c) will cover both categories of work. It is a “catch-all” which would cover the present facts.

	In our judgment, upon the wording adopted in the Regulations, the conclusion that Regulation 13(2)(a) applies only to the designer who “prepares a design” is unavoidable. Any other view, involves reading out the words “he prepares” in Regulation 13(2)(a) or reading in words which are not there. Neither course can be justified.

	There remains the alternative submission that the defective drawing was prepared by the appellants because they were stated on its face to own it and it bore their name in the legend. We do not find those considerations decisive. As main contractors, the appellants could expect to have their name upon it, and the copyright, without thereby being treated as having prepared it. However, Mr Thomas places particular reliance on the fact that the appellants approved the drawing. He submits that in the circumstances they took responsibility for the defective design. The design incorporated in the drawing was “prepared” by them within the meaning of that word in the Regulations. Preparation, in the Regulations, is a wider concept than deciding upon the contents of and drafting the drawing. It includes decisions taken up to the time the drawing was used in construction such as checking, or failing to check, whether it detailed a safe design.

	We bear in mind the overall intention of the Regulations to provide for safety on construction sites but also the need, when construing Regulations with criminal sanctions, not to give to a word an extravagant meaning. In our judgment, the appellants were not the preparers of the defective design within the meaning of Regulation 13(2)(a). The fact that it was seen fit to include a separate category of design work, arranging the preparation of a design, supports the view that the word should not be given an extended meaning even if the effect of creating a second category is largely nullified by the wording of Regulation 13. Some support for not extending the word “prepare” to include approval of the design also comes from the wording of Regulation 13(3). The use of the expression “at the time the design is prepared” suggests that it was the drawing-up which was in mind and not subsequent decisions. Words such as “adopt” or “approve” were not included in the Regulations and could have been if it had been intended to cover situations such as the present. Upon its ordinary meaning, the word “prepares” in this context does not extend to the approval which the appellants were contractually required to give. The appellants did not prepare the relevant design within the meaning of Regulation 13(2)(a).

	For those reasons, the appeal is allowed and the conviction quashed. We have considerable doubt whether Regulation 13(2)(c) was intended as a “catch-all” which would cover situations such as the present, as Mr Williams submits, but the point does not arise and we make no finding as to the scope of the paragraph.