The Week That Was - 1 June 2022

Welcome to The Week That Was, a round-up of key events in the construction sector over the last seven days.

Suspended sentences agreed following deadly fall from height

On 25 May 2022, the HSE published a Press Release confirming that two men have pleaded guilty to various breaches of health and safety regulations that caused the death of a worker.  The worker fell approximately 5m through fragile roof panels whilst completing over-cladding works at the West Chirton (South) Industrial Estate in North Shields.

The outcome of the HSE investigation "found that the method of work was unsafe and there were inadequate precautions to prevent or mitigate against falls from or through the roof as well as an effective assessment of risk, selection and use of appropriate work equipment, safe system of work and effective supervision." 

The two men were given jail sentences of 14 and 16 months, suspended for 18 months.  This report serves as a reminder that people who carry out dangerous work must not only be appropriately trained and skilled, but that there must be a safe system of work in place with appropriate safeguards to mitigate against the risks of personal injury on construction sites.

See the HSE Press Release here.

New sustainable Plymouth Hospital projects

University Hospitals Plymouth NHS Trust has announced plans to invest £140m to build a new Urgent and Emergency Care Centre at Derriford Hospital and a new £35m West End Health and Wellbeing Centre in the City Centre.

The new Urgent and Emergency Care Centre has been designed by architect Stride Treglown, with civil and structural engineer Clarke Bond, and M&E consultant Hoare Lea, to be BREAAM Excellent.

Read more here.

Liverpool City Council v Vital Infrastructure Asset Management (Viam) Ltd (In Administration)

This matter concerned a challenge brought in respect of an adjudication decision for breach of natural justice.

The adjudicator had originally emailed the parties setting out the issue and proposing three options as a way forward.  This included the referring party discontinuing and serving a new notice of adjudication.  However, the referring party rejected the adjudicator's analysis and insisted that he proceed on the basis of the current notice. The adjudicator tried to overcome this difficult position, but in doing so, proceeded on a different basis to that which was set out and did not provide fair notice so that the responding party could provide submissions before he reached his decision.

It was held that an adjudicator will materially breach the rules of justice if they decide the dispute on a basis that neither party contended for and without giving the parties an opportunity to make submissions.

The full judgment can be found here.

HS2 applies for injunction against Yogi Bear

The company behind the HS2 railway project has applied to the High Court for an injunction against "violent" protesters who, it claims, have to date cost the company more than £120 million in disruption.  The proposals would prohibit trespass and obstruction of access on land owned by HS2 and the Government. 

The move follows a Queen's Speech that announced the Government's intention to introduce new laws jailing protesters for up to 13 months for damaging infrastructure projects.  High-profile HS2 protesters include Daniel "Swampy" Hooper, Scott "Digger Down" Breen, Bethany "Yogi Bear" Joy Croarkin, Jacob "Groovella Deville" Harwood and Leanne "Flowery Zebra" Swateridge.

The Wildlife Trusts (a collection of conservation charities) have warned that a route-wide injunction threatens the right to protest and will prevent ecologists and other experts from ensuring rules are being adhered to.

For more information, please see here.

Pay less notice requirements: Advance JV v Enisca Limited

On 22 October 2021, Enisca submitted its 24th interim application for payment (IA24) to Advance JV.  IA24 valued the work at £5,131,642.49.  Taking into account the sums paid to date, Enisca applied for a payment of £2,717,992.88.  Advance failed to respond to IA24 by the deadline of 12 November 2021. 

On 19 November 2021, Enisca submitted its 25th interim application (IA25).  Advance responded to IA25 with a pay less notice which alleged that the true valuation of the work was around £2 million, i.e. far below the valuation in IA24.  Advance alleged that no sum was due to Enisca.           
Enisca argued that the pay less notice could only apply to IA25 and not IA24.  As such, it was entitled to the payment of £2,717,992.88 as set out in IA24.  An adjudication was commenced and the Adjudicator agreed with Enisca and ordered Advance to pay £2,717,992.88.  

Subsequently, a Part 8 claim was commenced by Advance, which sought a declaration that the pay less notice was valid as against both IA24 and IA25.  The Judge dismissed the Part 8 claim, instead finding that pay less notice related solely to IA25.  The sum applied for (namely £2,717,992.88) became the notified sum under s111 of the Housing Grants Construction and Regeneration Act 1996 ("HGCA").

The Judge agreed that:

• the HGCA required notices to be referable to individual payment cycles (s.111(3));
• a pay less notice could not apply to two payment cycles; and
• the pay less notice served by Advance did not apply to IA24.

A link to the judgment can be found here.

Insurance for driverless cars

Oxford-based technology firm Oxbotica has completed the first fully-autonomous, driverless vehicle test on publicly accessible roads.  The fully electric vehicle currently operates without a driver on board, and Oxbotica is aiming for its first on-road business use in 2023, working with the Ocado Group to deliver customer orders.  

The technology involves a combination of radar and laser-based systems, which give the vehicle a ‘view’ of the area around it.  From there, multiple artificial intelligence systems check the area and make decisions.  The move marks Europe's first zero-occupancy self-driving vehicle journey on the road.

The test is also a breakthrough for insurance, with Oxbotica working with Marsh Apollo Group and Aioi Nissay Dowa Europe to create coverage tailored directly to allow the vehicle onto the road.

Further information is available here.

Thanks to Tom Westford, Liz Johnson and Zack Gould-Wilson for contributing to this week's edition.

Disclaimer: The information in this publication is for guidance purposes only and does not constitute legal advice.  We attempt to ensure that the content is current as at the date of publication, but we do not guarantee that it remains up to date.  You should seek legal or other professional advice before acting or relying on any of the content.