Legal spotlight - December 2018

WHEN THE Construction Design and Management Regulations (CDM Regulations) came into force in April 2015, they heralded the most significant changes in the construction industry in two decades. Of the headline changes at the time, some of the most significant related to the role of the client; the CDM regulations give 'clients', meaning anyone for whom a construction project is carried out, a greater role while the work is carried out, tightening the HSE's oversight of the role played by commercial firms in their own construction projects. HSE said at the time that the new focus is justified because of the impact that client decisions and approach have on health, safety and welfare during construction work.

The CDM regulations require a client to make suitable arrangements to ensure construction work undertaken on their behalf is carried out without risks to health and safety, so far as is reasonably practicable. The client must also ensure that the contractor, or principal contractor if applicable, has drawn up a construction phase health and safety plan for all projects including routine maintenance.

When appointing others to a project, the client must take reasonable steps to satisfy itself that the appointee has the skill, knowledge and experience and – if the contractor is an organisation – capability necessary to fulfill the role.

As with other health and safety failures, those who get it wrong face prosecution, with the potential for unlimited fines and, in the case of individuals, imprisonment, if convicted.Although not yet commonplace, the incidence of custodial sentences is on the increase; a couple of months ago a property developer was jailed for eight months after the roof and part of the rear wall on one of his properties collapsed during partial demolition works carried out by incompetent contractors, with no experience in demolition works.An HSE inspection during the works found most of the removal works already carried out but with no steps undertaken to ensure the building did not collapse.Nor were the workers wearing suitable safety equipment, despite working inside the building. An immediate prohibition notice stopped work but the building collapsed before required total building demolition could be carried out safely, injuring one person and disrupting local businesses.

Mr Ahmad was tried and convicted of failing to

• Ensure his employees' health and safety (the court ruled that the demolition workers were his employees);
• Ensure that non-employees were not exposed to risks from his undertaking,

both in terms of the Health and Safety at Work etc Act 1974, and of failing to

• To take all practicable steps to prevent danger and to ensure that any new or existing structure did not collapse because it was unstable or in a temporary state of weakness or instability due to construction work, in terms of the CDM regulations.

In sentencing, the court applied the Sentencing Council's definitive guideline for health and safety offences, including the aggravating factors that Mr Ahmad had cut costs at the expense of safety, targeted vulnerable victims and obstructed justice. With no mitigating factors to consider, Mr Ahmed was sentenced to an immediate eight month's imprisonment for each offence (to run concurrently) plus £65,000 in costs.

Emphasising a client's responsibility to appoint competent contractors to devise a safe way of working the court wanted to send a "clear statement …to those who undertake significant projects such as this, namely that health and safety legislation has to be adhered to for good reason, and those who ignore its basic tenets will receive punishment.”.

Kevin Bridges is partner and head of health and safety at Pinsent Masons. For more information, visit www.pinsentmasons.com