Loss Prevention Alerts

Alert No 8 - DESIGN RESPONSIBILITY UNDER CDM (R. v Paul Wurth SA)

Date of Issue: 5 May, 2000

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.

Summary

In January this year, the Court of Appeal ruled that Regulation 13(2)(a) of the Construction (Design and Management) Regulations 1994 applies only to a design which a person prepares and not to a design which a person arranges for another person to prepare. This conclusion is the unavoidable result of a glaring defect in the regulations which the Health & Safety Commission are, quite rightly, taking steps to rectify.

The facts of the case - R v Paul Wurth SA

Paul Wurth SA (PW) entered into a contract to design, supply, install and commission a slag granulation plant at Port Talbot Steelworks.

Part of the plant supplied was a conveyor which fell over and crushed to death, a man who was working on its installation. It emerged that the conveyor had fallen over because its two supporting latching devices were not secured by a locking pin which was integral to the safety of the conveyor. The locking pin had not been incorporated in the design drawings and was therefore omitted when the latching devices were constructed. PW had employed Fairport Engineering Limited (F) to convert the design of the latching devices into manufacturing and construction drawings. F had in turn contracted the manufacture of the conveyor to Universal Conveyor Co Limited (U). U prepared the relevant drawing (without incorporating a locking pin) and submitted it to F for approval. F submitted the drawing to PW for approval in accordance with the contractual agreement. PW made no comments which related specifically to the omission of the pin and U then manufactured the defective latching devices.

The particulars of the offence on the indictment alleged that PW "failed to ensure that in preparing the design of the latching devices… adequate regard was given to the need to avoid a foreseeable risk to health and safety". The issue was whether PW prepared the design of the devices within the meaning of those words in the Regulations.

PW was the designer of the project as a whole within the meaning of the word in Regulation 2 of the CDM Regulations but denied being the designer of the latching devices.

Regulation 2, the interpretation regulation, states:

'Designer means any person who carries on a trade, business or undertaking in connection with which he:

a) prepares a design; or

b) arranges for any person under his control (including where he is an employer or employee of his) to prepare a design

relating to a structure or part of a structure;

Rejecting the various arguments made on behalf of the Crown, the Court of Appeal held that PW was not the preparer of the defective design within the meaning of Regulation 13(2)(a).

Regulation 13(2)(a) states:

"Every designer shall -

a) ensure that any design he prepares and which he is aware will be used for the purposes of construction work includes among the design considerations, adequate regard to the need…"

(i) to avoid foreseeable risks to the health and safety of any person at work carrying out construction work or cleaning work in or on the structure at any time, or of any person who may be affected by the work of such a person at work,

(ii) to combat at source risks to the health and safety of any person at work carrying out construction work or cleaning work in or on the structure at any time, or of any person who may be affected by the work of such a person at work, and

(iii) to give priority to measures which will protect all persons at work who may carry out construction work or cleaning work at any time and all persons who may be affected by the work of such persons at work over measures which only protect each person carrying out such work;

b) ensure that the design includes adequate information about any aspect of the project or structure or materials (including articles or substances) which might affect the health and safety of any person at work carrying out construction work or cleaning work in or on the structure at any time or of any person who may be affected by the work of such a person at work; and

c) co-operate with the planning supervisor and with any other designer who is preparing any design in connection with the same project or structure so far as is necessary to enable each of them to comply with the requirements and prohibitions placed on him in relation to the project by or under the relevant statutory provisions.

 Whilst it was recognised that the overall intention of the Regulations is to provide safety on construction sites, the precise wording of Regulation 13(2)(a) led to the unavoidable restriction of its scope to designers who prepare designs themselves. That conclusion was supported by the inclusion in Regulation 2 of a second separate category of design work, namely the arranging of the preparation of a design. If this distinct category had not been created in the construction of Regulation 2, the Court of Appeal would not have been forced make this unfortunate ruling.

Comment

Since the majority of designs are not prepared by the person who actually owns the design practice but by an employee or a person under his control, the decision effectively renders Regulation 13(2)(a) unenforceable.

The Health & Safety Commission have therefore put forward proposals in a Consultation Paper to amend the regulations by 1) simplifying the definition of designer; and 2) extending what is meant by "a person preparing a design" to include a reference to designs prepared by his employee or a person under his control preparing it for him.

This is a welcome development. The draft amendments to the CDM Regulations are annexed to the Consultative Document and comments should be sent to the Health & Safety Commission by 31 May 2000.

Reference

R v. Paul Wurth SA (2000)., CA (Pill AJ, Rougier J, Newman J) 26/1/2000

Consultative Document - Proposals for an Amendment to the Construction (Design and Management) Regulations 1994 - HSE Books, PO Box 1999, Sudbury, Suffolk, CO102WA. Full text also available from the HSE website- www.open.gov.uk/hse/condocs/

Prepared for the Members of the AGS by DLA