CDM (2007): Do the new regulations increase the scope of client liability for construction?

In Building magazine (23rd August 2007) an article by Eleanor Harding had the title: “Clients responsible for construction deaths, warns expert”. It went on “Building site deaths could now be the responsibility of clients because of new regulations, according to an expert on construction law.

Ken Salmon, construction lawyer at Mace & Jones, warned that it is now up to the client to ensure that those employed are competent, and that they have been provided with health and safety information.

The Construction Design and Management Regulations 2007 in April, widened responsibility for safety on sites. Clients who commission new buildings are now responsible for health and safety, even if they are not directly involved in construction work. Previously, it was only the contractors, designers and managers who faced liability.

The client will also be responsible for providing sufficient planning time and making arrangements for managing the project. They could even incur liability for choosing a particular design system or product.

Salmon said: “A death on a building site will be followed up by an investigation of the care taken by all parties, including the individuals whose only role is choosing the contractors, designers or managers and footing the bills.”

One reader asked whether all clients could be expected to understand the nature of construction risks and took a cynical view of the reason for the alleged increase in client liability. However I find the comments by Clare Thomas, Associate, GHP Consultancy more compelling. She wrote: “Do not be dragged down the line of thinking which suggests the client must become a Health & Safety expert overnight.

The “client” is not required to know or even understand the intricacies of construction or H&S.

The whole point of the “new” legislation is to make clients more accountable for what happens in their name, but charges them with the responsibility of ensuring they have adequate, sensible and competent professional advice. (not actually doing it themselves). And where a project is notifiable this advice comes from the appointment of the CDM Co-ordinator.

What CDM 2007 calls for is that the client must give time and resource for adequate planning to allow the other dutyholders to carry out their roles effectively and thus ensure that: 1. Risk is designed out at an early stage where possible (competent designers would ensure this happens with a CDM Co-ordinator to oversee this) 2. Residual risk is communicated to those who need to know about it (designers talking to the principal contractor, CDM co-ordinator preparing the pre-construction H&S Information) 3. Risk is managed on site by the principal contractor whose competence/Construction Phase H&S Plan is vetted by the client, again on the advice of the CDM co-ordinator.

The client therefore doesn’t need to be an expert he just needs to know that he needs professional advice from competent practitioners and not cut corners to avoid paying for this advice.

None of this should come as a surprise to any construction professional as it’s been openly debated for the last 18 months and the legislation has been in force since April this year.”

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About nickzsc

I'm a civil engineer and a lecturer in the Department of Real Estate and Construction at Oxford Brookes. Amongst others I have interests in problem-based learning (PBL) and improving the learning experience through the use of various technologies including 'Virtual Learning Enviroments', wikis and blogs. To be continued
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