Reynolds Porter Chamberlain LLP provide a full answer to a health and safety scenario concerning the management of a block of flats.  They also consider points raised by RICS members.

What is the health and safety legislation applicable to the project?
There is a broad network of legislation applicable to the project, including the Health and Safety at Work etc Act 1974, the Working at Height Regulations 2005 (depending on the circumstances).

The principal question for the purpose of the scenario of course is whether the CDM regulations 2007 apply (in whole or in part) given the circumstances of this project.

The first point is that Parts 1, 2 and 4 will definitely apply, simply because this is a construction project being undertaken in the UK.

Part 1 simply deals with definitions and interpretations under the Regs, it doesn’t create any duties per se.

Part 2 of the Regs impose a requirement on the clients, when appointing a designer or a contractor etc. to ensure that the relevant person is competent, that is able to perform any requirement imposed on them under the Regs.

The Approved Code of Practice for the 2007 Regs gives clear and detailed guidance as to how this is to be done.

In addition, the general requirements for mutual co-operation and co-ordination between parties to construction projects are set out in Part 2.

Co-operation is required to assist individuals to comply with their duties under the Regulations.

The parties have to co-ordinate their activities to ensure as far as is reasonably practicable the health and safety of people either on site or likely to be affected by the construction works.

A number of core duties for clients, designers and contractors are also set out in Part 2.

In overview, for Clients these include duties to:

• ensure the arrangements made by the parties to the project (including the Client himself) are suitable for health and safety purposes; and
• provide designers and contractors at the pre-construction stage with any information held by the Client that could be relevant to health and safety issues for the project

For Designers these include duties to:

• ensure the Client is aware of his duties under the Regs before starting work; and
• in various ways which we will look at in more detail later, address health and safety issues in preparing the design.

For Contractors these include duties to:

• ensure the Client is aware of his duties under the Regs before starting work; and
• address health and safety issues affecting the construction activities

Part 4 of the 2007 Regs incorporates the provisions of the (now revoked) Construction (Health Safety and Welfare) Regulations 1996.

Part 3: the key question in this case is whether Part 3 of the Regulations applies. Part 3 only applies where the project is notifiable to the HSE.

This is the Part which sets up the requirement for the Client to make appointments to cover the statutory roles of CDM Coordinator and Principal Contractor.

There are two situations where projects are not notifiable. Potentially, both of these may apply to the facts of this project.

The first is whether the work is for a 'Domestic Client'. Construction work for domestic clients is not notifiable.

Any client who undertakes work furtherance to a business or undertaking (whether for profit or not) is not treated as a domestic client.

Here, the tenants have formed a management company and are instructing the works through this vehicle.

Although technically they reside in the flats as tenants, they are not treated as a domestic client for the purpose of the Regs.

This is explained in Chapter 1 of the Approved Code of Practice.

The second question concerns the anticipated duration of the project.

Projects are not notifiable if they are expected to last less than 30 working days, or involve fewer than 500 person days (e.g. 25 people over 25 days).

Here it seems the timetable is exceptionally tight at just 4 weeks.

As the prospective contract administrator, you will need to advise the clients whether the timetable is achievable.

In forming a view on this you may well decide either that 4 weeks is inadequate.

Or it may simply be that more than 25 people are likely to be involved consistently over that period.

In either event, it seems likely that the project will need to be notified and Part 3 will apply.

What steps should the clients be taking to comply with their duties under CDM?
As well as making the appointments of Principal Contractor and CDM Coordinator (having assessed the competencies of the relevant parties) the Clients should:

• provide the CDM Coordinator with the ‘pre-construction information’.

 

• consult with the principal contractor to ensure there is sufficient time to plan and mobilise site operations adequately from a health and safety perspective (and prepare a construction phase health and safety plan)
• be satisfied, through asking appropriate questions and taking reasonable steps to ascertain, that there are suitable management arrangements in place for the work to be performed safely. This includes ensuring there are adequate welfare facilities on site.

What steps should you be taking to comply with the CDM Coordinator’s duties?
The responses from RICS members to the scenario questioned whether it was permissible for a contract administrator (CA) to take on the dual role of CDM coordinator on the same project.

This is both permissible and relatively common, no conflict of interest should arise as the roles are entirely separate and ought to be complementary.

However, it is of course essential that the CA has the relevant experience to demonstrate the competency to undertake the CDM coordinator role.

As CDM Coordinator, it is your duty to advise and assist the clients in complying with their duties now.

In addition, you will need to notify the HSE of the project, and liaise between any designers and contractors to ensure the flow of information necessary for health and safety purposes.

You should also review the health and safety plan to advise the client whether it is adequate.

What liabilities could you and/or the clients now face, if one of the contractor’s employees is injured because the clients have failed to comply with one of its statutory duties under the CDM regs?

The CDM regs impose criminal liability for breaches of its requirements.

The HSE has power to prosecute infringements of the Regulations and can impose unlimited fines.

Part 5 of the Regs covers civil liabilities.

It creates a separate cause of action where an employee of a duty holder is injured because of that duty holder’s failure to comply.

Here, it is the employee of one of the independent contractors who has been injured.

As there is no employment relationship between the client and the injured person,

Part 5 of the Regs will not impose civil liability on the client.

The injured person’s employers might be expected to be first in the firing line for a civil claim for damages.

However, to the extent the client has failed to take reasonable steps to enusure safety at the premises, and this has caused or contributed to the injury, the client might face liability for breach of duty as an occupier of the premises, under common law and/or the Occupiers Liability Act 1957.

Such a claim might be made by the injured person direct or by the injured person’s employers by way of a claim for contribution.

Whether the client has reasonably entrusted work to the independent contractor will depend on the facts of each case.

As a general rule, however, if the management company client can demonstrate that it complied with the CDM regs, this is likely to provide a strong first line of defence to such a claim.

Review the original scenario.