Nick SC’s interests

In Building magazine (23^rd 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.”

At the talk on 10th September 2007 we discussed whether the duty to appoint a CDM co-ordinator related to master-planning. Under the CDM a “project” “means a project which includes or is intended to include construction work and includes all planning, design, management or other work involved in a project until the end of the construction phase”; master-planning relates to work which eventually is intended to include construction work, but probably falls within the scope of “initial design work” as discussed in an earlier posting today (30th September 2007). The same comments about considering health and safety made there are also relevant here. The thrust of the regulations appears to be on more immediate risks such on falls, slips and illness caused by hazardous materials but broader, but more strategic risks are not excluded.

These broader risks, relevant to master-planning, might include such health and safety issues as urban design which tends to promote the use of cars as against walking and cycling. This has been shown in research to be related to obesity and ill-health. Other risks which might also need be considered at the master-planning stage are flood risk (building in the flood-plain), or on areas of contaminated land or soil instability. I’ve never heard of cases where such longer term risks have been cited by the HSE (but I’m not a lawyer so I’m saying this tentatively in the absence of finding any authoritative comment one way or the other). However, in law there are occasions when the limits of the law are tested, and sometimes extended, in the courts.

My feeling is therefore that there is no need under the regulations to appoint a CDM Co-ordinator for the Masterplanning stage. However, when the CDM co-ordinator is appointed that appointee should instigate a review of the master-plan, or at least check that health and safety factors were properly considerd by the design team, before design of individual projects, such as buildings, roads and bridges proceeds too far. The risks identified in the review of the master-plan should be approached using the ‘ERIC’ strategy (ERIC: eliminate, reduce at source, inform, control).

As commented in the earlier posting it might be commercially sensible to appoint the CDM co-ordinator earlier rather than as late as possible.

In discusson somebody pointed out that the client has to sign form F10 - the form which has to be submitted to the Health and Safety Executive. This is true but but only to signify that they are aware of their duties under CDM. Under Reg. 21(1) It is the CDM co-ordinator who has the duty to submit the F10 (the form as such is not necessary provided the information required by the form is provided) ‘as soon as possible after their appointment’ – further information, such as the details of the Principal Contractor, if not known at the time have to be submitted in due course.

At my talk on 10th September one issue raised was whether the CDM co-ordinator appointment hinges on an ‘intention to build’ as signified by the starting of work on detailed design (Stage D). The CDM (2007) regulations state in Regulation 18 Additional Duties of designers:

Appointments by the client where a project is notifiable

14. —(1) Where a project is notifiable, the client shall appoint a person (”the CDM co-ordinator”) to perform the duties specified in regulations 20 and 21 as soon as is practicable after initial design work or other preparation for construction work has begun.

(2) After appointing a CDM co-ordinator under paragraph (1), the client shall appoint a person (”the principal contractor”) to perform the duties specified in regulations 22 to 24 as soon as is practicable after the client knows enough about the project to be able to select a suitable person for such appointment.”

This suggests to me that the appointment should be not later than after the beginning of Stage D. But it is interesting to see that in the Plan of Work 1998 (I haven’t seen the revised version at the time of writing) the role of the Planning Supervisor (i.e. predecessor to the CDM co-ordinator) begins in Stage A).

Important - note that under CDM Reg. 8(2) “where a project is notifiable, no designer shall commence work (other initial design work) in relation to the project unless a CDM co-ordinator has been appointed for the project.”

Lawyers will look at documents where the meanings of expressions are not clear. HSE guidance leaflet INDG 411 ‘Want construction work done safely?’ A quick guide for clients on the Construction (Design and Management) Regulations 2007 (free download from the HSE website) says: “You should appoint the CDM co-ordinator as soon as possible, but no later than the initial design/preparation stage” (paragraph 8). This is not law, nor does it have the status of an “Approved Code of Practice” but it could be influential. Incidentally, it also states: “CDM 2007 does not require the CDM co-ordinator to supervise or monitor work on site.”

What guidance is there on what the HSE means by ‘initial design work?’

The Approved Code of Practice is clearly much more influential ACOPs have a “special legal status. If you are prosecuted for breach of health and safety law, and it is proved that you did not follow the relevant provisions of the Code, you will need to show that you have complied with the law in some other way or a Court will find you at fault” (from the frontispiece to Managing Health and Safety in Construction – the document which contains the regulations and the ACOP). At Paragraph 66 this says:

“66 Early appointment is crucial for effective planning and establishing management arrangements from the start. The regulations require the appointment to take place as soon as is practicable after initial design work or other preparation for construction work has begun. This allows the client to appraise their project needs and objectives, including the business case and any possible constraints on developments to enable them to decide whether or note to proceed with the project before appointing the CDM co-ordinator. The CDM co-ordinator needs to be in a position to be able to co-ordinate design work and advise on suitability and compatibility of designs, and therefore they should be appointed before significant detailed design work begins. Significant detailed design work includes preparation of the initial concept design and implementation of any strategic brief. As a scheme moves into the detailed design stage, it becomes more difficult to make fundamental changes that eliminate hazards and reduce risks associated with early design decisions.”

The bold sentences suggest that the appointment should be at an earlier stage than Stage D. This makes clear how important the HSE regards it to consider health and safety at the early stages of the project. By complying with this the CDM co-ordinator would be in place to give advice and the benefit of the special skills he or she brings to the design even at the early stages. The ACOP shows how you can comply with the law but ‘you may use alternative methods to those set out in the Code or order to comply with the law’ (from the same frontispiece referred to above).

So, my interpretation (and we need a court’s interpretation to make any claim with authority – until then there remains doubt) is that it’s advisable to appoint the CDM co-ordinator earlier than Stage D, but that if you don’t you could, if the job is done properly, find the CDM co-ordinator requiring a review of decisions made earlier and the client and designer might have to face up to the possible reversal of strategic decisions and design choices which had been taken.

Commercially it makes more sense for the CDM co-ordinator input to happen during the very earliest stages and before the gathering of the client’s information and the appointment of the designer. Amongst things that the CDM co-ordinator, once appointed, should advise the employer on is the competence of the designers in health and safety terms. If the lead designer is also the CDM co-ordinator, many of these problems are resolved. All but the smallest practices might consider hiring sufficient expertise to enable them to fulfill the role.

Timing of prosecutions
Cases are most likely to arise looking back at the build-up to an accident or dangerous occurrence after the event. At this stage what would be most important is not the precise timing of the appointment of the CDM co-ordinator but whether health and safety was adequately considered, at all stages, and whether the designer and the CDM co-ordinator made sure that that reviews where taken at appropriate stages.

I haven’t found any reference to ‘intention to build’, but if a building never proceeded to construction, and no preliminary work was done (e.g. surveying or site preparation) it would be unlikely that the HSE would launch a prosecution. Intention is often considered in law but I suspect that the expression ‘intention to build’ was mentioned somewhere discussion and that it took on more weight than it warrants.