Health and Safety in Construction – answers to some questions September 2009

In my lecture to Architecture Part 3 candidates on 9th September 2009 I invited the audience to submit any issues they’d like to raise.  These (see below) are the questions and my responses.  My responses are not necessarily definite  and I provide them without liability and solely for the purpose of revision for the Part 3 examination.

I will leave the file on the site until the end of October, after which any candidate may email me, or Vivien Walker, and I’ll send them a copy.

If you’ve got any comments or think I’m wrong or misleading please email me direct (address provided on the lecture handout).

Nick SC

p.s. The system is preventing me from uploading the file so I’m copying it below. NSC

QUESTIONS IN LECTURE ON 9TH SEPTEMBER 2009
(Please note that the answers are my own and are provided without liability solely for the purpose of revision for the Part 3 examination.) Note that underlining is by me.

1) Has health and safety/CDM gone too far in restricting the design flair of the architect?
There should be little impact on scope for design flair. As I explained health and safety is not the over-riding criterion, but the designer must apply ERIC (see one of lecture handouts) and be satisfied that the there is a safe way of constructing what has been designed. This may require that news skills are brought to bear. Also, there are other duties such as ensuring that the contractor is competent to do the work – it may be appropriate to as for a method statement as part the tender process for particularly hazardous work.

2) How can an architect ‘help’ the contractor produce the health and safety file at Practical Completion. Also can it be enforced and whose role is it to govern and impose the process on the contractor?
Provision of the relevant information would normally be a contractual requirement and it should be possible to recover the cost if is deemed necessary to obtain the information by other means e.g. the cost of obtaining as-built drawings and or contacting equipment suppliers to obtain information such as operation and maintenance requirements. There are contractual requirements in trying to enforce the provision of the information required by withholding the Completion Certificate and triggering the liquidated damages provisions of the contract. In contract law LADs cannot be deemed to be a penalty to be enforceable. They should not exceed a reasonable pre-estimate of losses and costs caused by late completion.

The architect could help the contractor to produce it by including a separate element for pricing (e.g. in the BQ) and also by explicitly listing the form and minimum content of what the contractor is expected to supply. Don’t forget that the duties ultimately are criminal – but enforcement is up to HSE.

3) Is it sufficient to put a note on drawings referring to a separate document which contains all the notes relating to health and safety matters?
The Approved Code of Practice (paragraph 134) clarifies this and I’m reluctant to go beyond the advice given. a) says that notes on drawings are preferable but that they can refer to other documentation if more detail is needed ….. (to me this means that some information on the drawings is needed). One must consider what is reasonable and whether it’s realistic to expect the other information to actually get through to those doing detailed planning and execution of the work. b) says that information should only be that which will be useful to those constructing or maintaining the structure and c) relates to suggested construction sequences.

4) As the CDM Co-ordinator cannot be on site everyday to view the works the Contractor’s H & S plan there could be unsafe practices . Should the CDM Co. be inspecting the works? Or does relate to the H & S file?
There is no duty to supervise the implementation of the contractor’s plans or to supervise or monitor construction work. Refer to the Approved Code of Practice paragraph 108 which lists what the CDM co-ordinator does not have to do. I’ve used the words from the paragraph almost directly. There is not room for doubt on this. But don’t forget the point about the CDM co-ordinator being having duties in relation to design after the start of construction – e.g. in relation to variations, additional work, AND temporary works design and any other design carried out by the contractor.
My comments on question 2 may help in relation to the second part of this question.

5) I understand that it has become compulsory to attend a short 10 day course on health and safety Is this an adequate amount of time considering the length of time it takes an architect to qualify?
I know of no such explicit requirement in law and would be astounded if the law approached such a complex area so blandly (firms or even institutions such as the RIBA/RICS etc. may have their own requirements but I’m referring to legal requirements). The functional requirements are stated in the regulations and pages 45 to 53 of the Approved Code of Practice (ACOP) are all devoted to competence and how to assess it. There are tables on page 52 which give examples of the level of attainment for different roles and Appendix 4 also covers ‘core competence’. What is required must depend on the team and the team skills, the nature of the work being undertaken and experience in that type of work, the level of responsibility, access to supplementary skills and advice etc. etc. It would be impossible to be categorical.
6) On non-notifiable projects is there still a requirement to produce a health and safety file? If so, does this get passed to the client at the end of the project or does it just get executed by the contractor?
The answer is no – there is no explicit requirement, but the C in ERIC (control) may require that suitable information is provided e.g. in relation to maintenance and demolition. The duties on designers apply to all construction work regardless of notifiability, and provisions in the Health and Safety at Work Act, and the Management of Health and Safety at Work Regulations (for example) apply in all cases. For example Section 3 of the Health and Safety at Work Etc Act (1974) states:
“3. (1) It shall be the duty of every employer to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment who may be affected thereby are not thereby exposed to risks to their health or safety.
(2) It shall be the duty of every self-employed person to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that he and other persons (not being his employees) who may be affected thereby are not thereby exposed to risks to their health or safety.
(3) In such cases as may be prescribed, it shall be the duty of every employer and every self-employed person, in the prescribed circumstances and in the prescribed manner, to give to persons (not being his employees) who may be affected by the way in which he conducts his undertaking the prescribed information about such aspects of the way in which he conducts his undertaking as might affect their health or safety. “
(Health and Safety at Work Etc Act 1973)

If information is lacking the architect could be breaching this section, at least if the result is likely to cause risk to anybody who could with due consideration be affected.

7) De-commissioning of a building: what are the responsibilities of the designer towards decommissioning at the end of its life? What document might demonstrate that this has been considered?
Demolition and de-commissioning risks are definitely within the scope of the designer’s duties under CDM. The normal process of recording deliberation regarding risk would apply and I quote a chunk of text from a guidance document available on the Construction Skills website (see http://www.cskills.org/supportbusiness/healthsafety/cdmregs/guidance/Copy_5_of_index.aspx)

2.7 Recording the process/outputs
2.7.1 The ACoP makes the point that it is not a legal requirement under CDM 2007 to record your deliberations (paragraph 144), but emphasises the benefits of recording and providing information on the significant risks (discussed at 1.7.6). This will satisfy the requirement under the Management of Health and Safety at Work Regulations 1999 for designers with more than five employees, to keep a written record of the significant risks identified in risk assessments (see paragraph 24 of the ACoP to those regulations).
2.7.2 In addition, it makes good business sense to record the output, and the requirements of formal quality assurance schemes will normally dictate that this is done. An audit trail of significant design decisions provides a quick reminder at later stages of the project and during design review. This process need not be complicated and could be achieved in a number of ways including:
• a risk register: this provides the opportunity to combine the more strategic risks
under CDM 2007 with other project risks to provide a single live document. (But
bear in mind that it will not be appropriate to include all CDM risks as, despite
being important, some are not of sufficient project status. However, ‘discipline
registers’ can also be established.) A risk register can be a very helpful, simple tool
for recording issues, actions and ownership, in a manner that can be readily
transmitted around the team (see Figure 18).
• a stand-alone CDM record: this might refer to the risk register but relate solely to
issues under CDM 2007
• part of a formal quality assurance process: the format would be governed by the
particular process and the organisation’s procedures.
2.7.3 It is essential that careful thought is put into the arrangement and content of whatever method is
adopted. If the process is either uncontrolled or ill-considered, there is a danger that it will not add
value and will become another bureaucratic paper trail.
2.7.4 A typical register might contain the heads given in Figure 18.

(8) How have site accidents dropped since CDM was introduced?
There has been a general downward trend but it would be hard to see from the graph when CDM became applicable. The law tends to reflect developments in society and increased concern or outrage about health and safety lapses are reflected in newspaper stories and broadcasting media. Designers, contractors, managers, employers and employees respond to those societal changes by giving increased attention and training.

9) Which other countries have implemented CDM or have similar systems? What is the overall cost of implementing CDM?
All EU countries (and European Economic Area countries such as Norway and Iceland) have had to implement the Temporary or Mobile Construction Sites Directive but CDM goes beyond the minimum requirements and implementation in other countries is often very different. Enforcement and compliance vary very widely. I believe that other English speaking countries (at least) have broadly equivalent requirements but don’t know about the details.

10) On domestic projects how is health and safety managed? If an architect has notified the contractor that health and safety standards on site are inadequate who is responsible if things go wrong?
The normal CDM designer and contractor duties still apply. Some duties are covered in CDM but acts such as the Health and Safety and Work Etc. Act, manslaughter law and numerous regulations apply very generally in any case. The designer should notify the contractor of safety issues (even not empowered by the contract) and you can always ‘whistle-blow’ to the HSE (who will respect anonymity as far as possible). The general duty of care principle would also apply.

11) How do you become a CDM co-ordinator?
It’s a matter of gaining the right experience, training and competence (see details in the Approved Code of Practice) and possibly joining a firm which does the work. The former Association of Planning Supervisors has renamed itself the Association for Project Safety and they may provide suggestions and even a qualification: see http://www.associationforprojectsafety.co.uk/home.php

There is also Nebosh (The National Examination Board in Occupational Safety and Health) qualifications which are well respected e.g. the National Certificate in Construction Health and Safety at http://www.nebosh.org.uk/Qualifications/Certificate/default.asp?cref=54&ct=2

12) What exactly is asbestos and why is it everywhere?
The Wikipedia page http://en.wikipedia.org/wiki/Asbestos looks to be OK about what it is – it’s a naturally occurring fibrous mineral, and its properties of fire-resistance and insulation, amongst others, gave it numerous applications in buildings (and elsewhere e.g. brake linings, fire protection clothing). It took a while before the health effects were noticed (they were first denied and evidence was suppressed, as appears to be normal in such cases viz. tobacco and its numerous ill effects). There’s an interesting account at http://www.btinternet.com/~ibas/Frames/f_lka_tn_dev.htm from which I quote

“During the sixties T&N promulgated different versions of the threat posed by asbestos. To an important customer who asked awkward questions in 1966, T&N wrote: “There is no proof that asbestos can cause Mesothelioma and it is by no means the sole cause of this disease.” But in 1965 Turner & Newall’s own company doctor John Knox had warned the Board that: “Exposure to Asbestos, even though it may have been transient, and many years previous, is an important factor in Mesothelioma of the pleura””

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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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