Loss Prevention Alerts

Loss Prevention Alert No 13 - SAFETY CONCERNS - CDM COMPLIANCE

This loss prevention alert has been produced by the Loss Prevention Working Group (LPWG) of the AGS.  It highlights issues that the LPWG considers may be of relevance to members.  It is not intended to provide a definitive response to any issues and before taking action members should consider carefully whether they need to seek independent legal advice.

Recent statistics released by the Health & Safety Commission show that deaths on construction sites soared by a quarter this year. AGS members, dealing with stability issues and contaminated land, during the investigation and remediation phase, are clearly operating in a high risk area. Changes in law, such as the planned reforms to corporate manslaughter, will increase dramatically the consequences of poor safety management. Now might be a good time to address some of the common misconceptions about the Construction (Design and Management) Regulations 1994 ("CDM").

CDM does not apply to site investigation

This is incorrect. CDM applies to site clearance, site exploration and site investigation all of which fall within the definition of "construction work". Note though that CDM does not apply to work which merely involves a site survey.

CDM has no relevance when less than five people are carrying out construction work.

It is true that the majority of the regulations do not apply but note that designers' duties apply regardless of the size of the project. Designers must ensure that their designs avoid foreseeable risks to the health and safety of people working on site, combat risks at source, and give priority to measures which will achieve the greatest safety gain. They must also ensure that their design includes adequate information about safety issues and they must co-operate with the Planning Supervisor and with any other designers to ensure that safety is maximised.

It may be difficult at times to judge whether there are five or more people involved in construction work. For example, assume that four employees from a contractor are involved in site clearance work, but an engineer is on site assessing the ground for foundation construction work to come. There would appear to be for five people carrying on construction work unless it could be argued that the site clearance work and the foundation construction constitute different "projects". In cases of doubt consider carefully the language of the Regulations or take legal advice. Bear in mind that for high risk projects it may be prudent to put in place CDM systems even where, strictly, the Regulations have only limited application.

If no Planning Supervisor is appointed then the lead technical consultant can be required to fill the post of Planning Supervisor.

This is incorrect. On a project where a client fails to appoint a Planning Supervisor he will have committed a criminal offence. There is no deemed designation of the role of Planning Supervisor.

If no Principal Contractor is appointed then the main contractor will be the Principal Contractor.

Again this is incorrect. A failure to appoint a Principal Contractor will involve the client in the commission of an offence.

There is no need for the Planning Supervisor to check designers' designs to ensure that they comply with their own obligations.

Strictly speaking this is correct - the Planning Supervisor is not required to second guess the designers. Note though that Regulation 14 (a) requires the Planning Supervisor to ensure, for as far as is reasonably practicable, that the designers pay adequate regard to the duties imposed upon them. In practice therefore, there will tend to be a significant amount of discussion between designers and the Planning Supervisor as to the correct way of achieving safety through the design process.

The Planning Supervisor not being a designer, he should not be asked to provide collateral warranties.

If the Planning Supervisor is negligent in his work then the losses to his client, or indeed future purchasers or tenants of a site, can be considerable. For example, the Planning Supervisor is required to ensure that the Health & Safety file is prepared. If the Health & Safety file - which is effectively a document comprising useful safety information that will be crucial to the building's future use, refurbishment, alteration and eventual demolition - is not produced, or is lost, then it is well arguable that the future value of the site will be substantially diminished. For this reason, it is commonplace to ask Planning Supervisors to execute collateral warranties which provide that they have used reasonable care, skill and diligence in and about the compliance of the duties imposed upon them under the CDM regulations.

The lead consultant should always act as the Planning Supervisor

Again, this is not so as the role of Planning Supervisor requires an understanding and knowledge of health and safety issues which few technical consultants may have. Note in particular that the client commits a criminal offence if he employs a Planning Supervisor without satisfying himself as to that person's, firm's or company's competence and resources to discharge the functions of Planning Supervisor.

By appointing a Planning Supervisor, the client effectively discharges his own obligations under CDM

This is not correct. The client retains important duties which may be difficult to delegate. Under Regulation 11, the client must ensure that the Planning Supervisor for any project is provided with information which is either in his possession or which he can ascertain by making reasonable enquiries. Accordingly, one can expect the Planning Supervisor to be told about contamination, gross instability, possible subsidence, old mine workings and underground obstructions. In practice, Planning Supervisors will normally have a list of relevant information that clients may have.

The appointment of a Principal Contractor effectively discharges other contractors from safety obligations

This is common but dangerous thinking. Under Regulation 19, there are a range of requirements and prohibitions placed on contractors. They must comply with any directions given by the Principle Contractor, comply with any rules in the health a safety plan and promptly provide the Principal Contractor with any information in their possession which he should have relevant to health and safety. Further, contractors retain the primary duty to train, supervise and provide instruction to those in their employment.

Prepared for the Members of the AGS by Steven Francis, DLA

Date of Issue: 7 December 2000