Legal Professional Privilege cannot be defeated by the FRC’s interpretation of its disclosure regime
In our previous blog we provided an overview of the history of health and safety legislation, and analysed the Hackitt report’s recommendation that the CDM Regulations should be extended to HRRBs. We concluded by looking at how the proposals may impact clients (as defined by the CDM Regulations). I continue the theme in this blog by reviewing the potential implications on the other CDM duty holders – Designers, Contractors, Principal Designers and Principal Contractors.
Under the CDM Regulations, designers are responsible for eliminating, reducing or, at least controlling, foreseeable risks which may arise during the preparation or amendment of their designs. This applies to risks which may occur during the construction phase of building development as well as when the building is in use or undergoing maintenance. Designers are required to cooperate with the rest of the project team to help them to carry out their duties.
The Report does not propose any additional responsibilities for designers above and beyond those prescribed by the CDM Regulations. However, the proposed additional requirements placed on the other duty holders may impact the contractual relationships between the parties. The Report seeks to eliminate the possibility of the principal duty holders (i.e. Principal Designer and Principal Contractor) delegating their health and safety responsibilities to other parties. However, in practice it is likely that parties will continue to pass down other accountabilities where possible.
As with designers, the Report does not propose any specific responsibilities for contractors. However, like designers, contractors may be indirectly affected by the obligations placed on the other duty holders, as they are required to cooperate with the other parties.
Under the CDM Regulations, contractors are required to plan, manage and oversee any construction work that is under their control to ensure it is carried out without jeopardising health and safety. Where there is no requirement for a Principal Contractor to be appointed (for example in a single contractor project), the contractor is required to produce a construction phase plan to demonstrate that it has considered and reviewed health and safety risks.
A Principal Designer is appointed by the client where there is more than one contractor on site. Principal Designers must have sufficient knowledge, experience and ability to carry out the role. There has been a lot of discussion around this role and which consultant should or could take it on. Clients continue to appoint CDM advisors on design and build projects and upon novation of consultant appointments. Like designers, the Principal Designer is responsible for eliminating, reducing or controlling foreseeable risks which may arise during the pre-construction phase of a project. They are also responsible for coordinating efforts to ensure such risks are eliminated, reduced or controlled and are required to liaise with the Principal Contractor to assist with the planning and on-going management of the construction phase.
Under the proposed regulations, the Principal Designer will be required to take overall responsibility for other consultants who have a design obligation to ensure they also have the suitable skills, knowledge and experience required for the project. As part of this overarching responsibility, on completion the Principal Designer will be required to confirm from a design perspective that the works comply with the Building Regulations.
The Principal Designer will also be required to state how core building safety requirements will be met during the pre-construction phase and to ensure that the contractual relationships it enters into are appropriately funded to support the core objective of improving safety. The latter reflects Dame Hackitt’s view that the concept of value engineering is harmful as it often prioritises cost saving over quality and safety.
These additional obligations will likely see lengthy negotiations and additional drafting during procurement as well as a corresponding increase in legal costs which may in turn result in a rise in contract sums. A similar increase may be seen as a result of the introduction of the golden thread responsibilities which we will review in our next blog.
The Principal Contractor’s responsibilities under the CDM Regulations are similar to those of the Principal Designer but in respect of the construction phase of a project. On health and safety matters during the construction phase, the Principal Contractor must liaise with the client and the Principal Designer as well as facilitate cooperation between contractors.
Other key aspects of the role include conducting site inductions, ensuring the site is secure in order to prevent unregulated access, and providing suitable onsite welfare facilities.
Under the proposed regulations, in addition to these responsibilities, the Principal Contractor will be required to ensure information management systems are kept up-to-date and change control mechanisms are properly utilised. It must also demonstrate on completion that the work meets the requirements of the Building Regulations.
In addition to preparing a construction phase plan, as part of the golden thread the Principal Contractor will be required to prepare and maintain the Construction Control Plan and to handover the Fire and Emergency File and the digital record to the future building owner.
Compliance with the CDM Regulations is enforced by the Health and Safety Executive (HSE). The HSE has powers to prosecute those who do not comply. The Report proposes that a new Joint Competent Authority (JCA) be created to oversee compliance of the new obligations. The JCA will provide a framework for local authority building standards, fire and rescue authorities and the HSE to combine their knowledge and expertise to assess building safety. This is explored further in my colleague Hannah’s blog: The Hackitt report - what next?
Going one step further, last month RIBA (the Royal Institute of British Architects) announced that it is in the process of developing a new mandatory health and safety test which all of its UK chartered members must complete. The test will cover roles and responsibilities including those relevant to designers and Principal Designers, and the relevant legislation. The test will also examine risk management in design, and personal safety when working on site. The test is designed to complement RIBA member’s existing knowledge and expertise gained during their academic studies and on-going CPD. The test is expected to be introduced some time in 2019 with existing RIBA members being given a year to pass the test before renewing their membership for 2021. CITB (the Construction Industry Training Board) provides training and industry guidance for contractors fulfilling the CDM roles of contractor or Principal Contractor.
In our next blog we will review the Report’s proposed golden thread of building information.
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