B52s

Commercial client prosecution under CDM2015: DIY retail brand Leyland SDM (LSDM) has been handed a £450,000 fine after four workers fell more than 3.5m during a warehouse refurbishment. The company had failed to recognise its roles as client and the principal contractor under the Construction (Design and Management) (CDM) Regulations 2015. Two of the four men suffered leg fractures; a third sustained a broken collar bone, while the fourth sustained severe bruising of the chest, which required him to wear a body vest. Had LSDM properly managed the working at height and lifting risks, and also provided the right level of trained personnel and supervision to carry out the work safely, the incident would not have happened. Westminster Magistrates’ Court heard on 22 February 2017 that LSDM was renovating a warehouse in Wembley in northwest London when the incident happened on 27 April 2016. A Health and Safety Executive (HSE) investigation found that LSDM had recently purchased the building and was in the process of converting the space into its new head office. The company’s six-strong build team had constructed a new two-storey structure within the warehouse space on a mezzanine floor but had taken no precautions to prevent anyone from falling. The upper level was over 3.5 m off the mezzanine. HSE inspector Jack Wilby advised that when the build team started the conversion there was no scaffolding, and evidence from the regulator’s investigation showed people working next to areas with significant falls. When the scaffold was finally erected, it didn’t extend all the way around the structure, so the team installed a tower scaffold to help erect the internal structure. “All the statements say that the tower scaffold was not wide and tall enough to use, there were missing parts and it was not in a good enough condition to be used,” said Wilby. “They then went and got an existing racking system in the warehouse [blue upright and orange horizontals] and erected it on the floor.” Wooden panels were installed across the racking to provide working platforms. However, the HSE found that they were not set up correctly and were missing supports. In addition, the edge protection on the top of the racking was inadequate and would not have prevented a fall to the mezzanine floor. Just before the incident, four members of the team manoeuvred the ventilation unit on to the tower scaffold while one worker was positioned on the top of the new structure, ready to receive the unit so that it could be fitted in the space under the warehouse roof. “The statements were not clear on who was organising and running the work,” says Wilby. “However, when they moved on to the racking, four of them went to lift the ventilation unit and the wooden platform gave way.” The HSE identified a number of failings. LSDM did not realise that it was both the client and the principal contractor under the CDM 2015. As a result, it did not have a construction phase plan. Also, it did not plan the lifts and the work at height. The team “was left to work it out themselves”. The company also failed to have the right level of trained personnel and supervision in place to carry out the refurbishment work safely and effectively. LSDM of Fourth Way, Wembley in London pleaded guilty to breaching regs 6(3) of the Work at Height Regulations 2005 and reg 4(1) of the Manual Handling Operations Regulations 1992. District Judge Quentin Purdy determined that the culpability was high. The seriousness of the harm risked was within level B and the likelihood of the harm arising was medium (harm category 2). Wilby advised: “Following the incident, they agreed to stop all work and brought consultants in to arrange for the racking to be dismantled safely using a mobile elevating work platform (MEWP). Also, as the CDM client and principal contractor, they also produce a construction phase plan.”

Quote from p33 heading under clause 146; CDM2007 ACoP: "The principal contractor (notifiable projects only)". Under CDM2007, a principal contractor only required to be appointed if the project was commercial in nature and also notifiable to the HSE. Under CDM2015, the trigger point for principal contractor appointment is based on the number of contractors envisaged to be required during commercial or domestic construction projects. This is a fundamental shift in regulation (and emphasis) which has far reaching consequences for those involved in design, construction and management. I think it is in anyone's best interest not to discuss legislation that has subsequently been withdrawn and superseded by current legislation. We are where we are, lets grasp the proverbial nettle and deal with reducing the number of accidents on domestic building projects by fully embracing CDM2015.

That makes sense. However, self-builders insist on falling into the "honey trap" by engaging contractors during the construction phase. If a principal contractor has not been appointed, this - by default, makes the self-builder the principal contractor and therefore he/she assumes the full CDM duties that this position demands. If self-builders do not have the necessary skills, knowledge and experience to fulfill this role (fully in accordance with CDM2015) then he/she has a duty of care not to undertake these duties themselves (i.e. due to not possessing the required competence) and therefore has no option other than to appoint a principal contractor who can demonstrate that they possess the required CDM competence. During the pre-construction phase it is entirely foreseeable that multiple contractors will be engaged during the construction phase and therefore a principal contractor should be engaged prior to the commencement of construction. It is of absolutely no relevance to when trade contractors are engaged or indeed how many trades will be on site at any given time. CDM2015 demands that a principal contractor is required when it is envisaged that more than one contractor will be engaged to undertake the works, end of.

Well said recoveringacademic. Historical evidence clearly indicates that previous self-regulation of design, construction and management has failed to secure the health, safety and welfare of persons in or about buildings and others who may be affected by buildings or matters connected with buildings. The message for all involved in construction projects (commercial and domestic) has got to be; embrace CDM2015 and make a real difference.

I think we are kind of saying the same thing. The scenarios I have described are correct relative to CDM2015. The only weakness in CDM2015 is that it places no responsibility on domestic clients to ensure they have the skills, knowledge and experience to undertake the duties I outlined above. I believe this recognised anomaly can only be clarified by a court of law resulting from an accident investigation (which I do feel will come in the fullness of time). Whether this could result in criminal convictions against a self-builder, I am not so sure. CDM2015 does imply that a domestic client would not be held accountable. However, I feel this is directed towards "non technical" homeowners who have building works designed and installed by an architect and local builder. In this situation, it is (under most circumstances) obvious that the homeowner had no CDM involvement. On the other hand, self-builders clearly have far more competence and input than the "traditional" domestic client and therefore I feel this would be taken into account in terms of foreseeable and wholly preventable accidents. In this situation, it is not obvious that the self-builder had no CDM involvement. So, I suppose I do tentatively agree with you in principle that a self-builder might not face criminal conviction under CDM. However, ignoring the spirit of CDM brings considerable risk and is certainly not for the faint hearted.

PeterW Yeah I would agree, but only if you are undertaking all of the construction work yourself (normally described as DIY). However, there is still fly in the ointment for self-builders if they engage tradesmen to undertake some of the work (e.g. electrician, plumber, etc). This being the case would (under CDM) define the self-builder as the principal contractor which means the self-builder would attract all the Principal Contractor CDM duties as noted under CDM2015. Also, bear in mind that the self-builder could also unwittingly (by default) become the principal designer if the role is vacant. Basically, if the self-builder undertakes any design tasks (even minor design tweaks) himself, then he/she could by defined as the designer in control of the pre-construction phase (even if this is during construction on site).

The HSE have made it absolutely clear that they have no intention of pursuing domestic clients because it is accepted that most domestic clients do not have the technical skills knowledge or experience to undertake CDM duties. This being the default position for all domestic clients. To maintain the default position, domestic clients should not appoint a principal designer or a principal contractor, otherwise the domestic client takes on CDM duties that he/she is not obligated to do under CDM2015. So the simple advice should be; do nothing - and as you correctly say, the CDM duties will automatically fall on others by default (as defined in CDM2015). Hope that make sense.

Guys, please don't stick your proverbial head in the sand. Domestic builds were previously outwith the scope of CDM2007. As from April 2015, the UK government passed an amendment to the CDM Regulations making them applicable to domestic properties. And why; two reasons: This brings the UK construction industry health and safety law and practices in line with other EU countries. The second, and I personally feel more important and of real concern; the HSE advise that approx. 80% of all construction accidents relate to small building projects. Everyone working on domestic projects (domestic clients, designers and contractors) now has statutory obligation place on them by the HSE to reverse this dreadful trend. Those who make no meaningful attempt to comply with CDM2015 face the real prospect of a custodial sentence (under new sentencing guidelines) in the event of a fatal accident on a domestic construction site. It is worth noting that the HSE track-back all accidents to identify the true underlying cause of an accident. And why? ...because it is widely accepted in health & safety circles that most accidents relate to poor construction design and management. As they say; "don't shoot the messenger".

If I may stick my head in here... It would appear that some people are losing sight of the complex and challenging statutory obligations of CDM2015. Prices on this forum for delivering PD services appear to range from an in-vogue bathroom to an outside loo complete with rickety wooden shed and slop-out pale! The professional indemnity (PI) of many small architectural practices doesn't cover the provision of PD services (they don't have the necessary skill set). Furthermore, the majority CDM coordinators who delivered a similar service under the previous CDM2007 are also unable to obtain PI cover (they also don't have the necessary skill set). So if you are being offered PD services for the price of an outside loo, my strong suspicion would be that the project will not be delivered in accordance with the onerous statutory obligations of CDM2015. The litmus test; ask those who are offering PD services for a copy of their PI certificate. I trust you find my thoughts to be helpful.