CDM 2015 – What claims might be made?
The Construction (Design and Management) Regulations 2015 ("CDM 2015") came into force on 6 April 2015, replacing CDM 2007. CDM 2015 applies to nearly every construction, engineering or development project, including small and domestic projects. Formal guidance on CDM 2015 is published by The Health and Safety Executive ('HSE'), accessible here.
The duty holders
For the purposes of CDM 2015 the key duty holders on a construction project are:
- The Client;
- The Principal Designer; and
- The Principal Contractor (if more than one contractor, including sub-contractors, is used on the project).
CDM 2015 places much more health and safety responsibility on "the Client" than was the case under the old CDM regime. The Client's duties include:
- Notifying the HSE where construction work is scheduled to last longer than 30 working days and have more than 20 workers on site at any point and/or where construction work is scheduled to exceed 500 person days (notification used to be the responsibility of CDM Co-ordinators, not Clients);
- Making suitable arrangements for managing a project, including the allocation of sufficient time and other resources, so that the work can be carried out without risks to the health or safety of any person affected by the project;
- Ensuring that the sole contractor or Principal Contractor prepares a construction phase plan before construction works begin;
- Ensuring that the Principal Designer prepares a health and safety file;
- Ensuring sufficient time and resources are allocated;
- Ensuring relevant information is prepared and provided to other duty holders;
- Ensuring that the people and organisations they appoint have the necessary skills, knowledge, experience and (if an organisation) the organisational capability to manage health and safety risks; and
- Ensuring that the Principal Designer and the Principal Contractor carry out their duties.
CDM 2015 imposes lesser responsibilities upon "domestic" clients, defined narrowly in CDM 2015.
Principal Designer's duties
Once appointed by the Client, the Principal Designer's duties will include:
- Planning, managing and monitoring the pre-construction phase;
- Coordinating matters relating to health and safety to ensure that, so far as reasonably practicable, the project is carried out without risk to health and safety;
- Identifying and eliminating or controlling, so far as is practicable, foreseeable health and safety risk for those carrying out, affected by, maintaining, cleaning or using the structure as a workplace;
- Assisting the principal contractor in drawing up the construction phase plan by providing relevant pre-construction information, together with information from designers;
- So far as it is within the principal contractor's control, providing pre-construction information to each contractor and designer;
- Liaising with the principal contractor, sharing information relevant to planning, managing and coordinating health and safety during the construction phase; and
- Preparing an appropriate health and safety file, keeping it under review and up-to-date
Principal Contractor's duties
The Principal Contractor's duties include planning, managing and monitoring the construction phase so that, so far as is reasonably practicable, construction work is carried out without risk to health and safety.
If an accident occurs on site it could give rise to a variety of legal actions – criminal, contractual and in negligence (breach of a duty of care).
If the Client fails to make suitable arrangements, or if any other duty holder does not fulfil their obligations under CDM, the likelihood of an accident is greatly increased. Both the Health and Safety at Work Act and a raft of safety regulations create offences which could be applicable in the event that there was an accident on site. CDM adds an additional layer of complexity, as although it defines relationships and processes rather than substantive on-site obligations, it, too, can be enforced by the criminal law.
The HSE will investigate an accident and could prosecute any of the duty holders. Its initial focus in all likelihood would be the Client because it likes to start at the top and work down: the Client has the overriding obligation under CDM 2015 to make suitable arrangements for the management of the project and, by reason of the way in which CDM defines suitability, the fact of an accident implies that the arrangements were not suitable. However, HSE will then almost certainly pursue other duty holders either in place of or in addition to the Client. The outcome of any HSE investigation is likely to be crucial evidence in any related contract or negligence claims.
If the accident results in a fatality, the police will take over the investigation with the HSE providing specialist assistance. In such circumstances organisations or individuals may find themselves under intense and prolonged scrutiny, with frightening consequences: the recently published guidelines on sentencing in corporate manslaughter cases recommend that the minimum fine for a business with an turnover of less than £2m should be £180,000 and the range of fines for an organisation with a turnover in excess of £50m should be £3m to £20m; there is a growing tendency for directors to be prosecuted and for their fines (if they are lucky enough under the guidelines not to be imprisoned) to be substantial.
The Client might have a claim against the Principal Designer for breach of a term of the contract between them (being a term requiring the Principal Designer to carry out CDM 2015 duties) if the breach has caused loss to the Client. To succeed, the Client will have to prove that it is more likely than not that the accident was caused by the Principal Designer's failing. The Principal Designer's position will be strengthened significantly if it can prove that it was competent to be a Principal Designer and that it complied fully with the requirements of Regulation 11 of CDM 2015. The Client's claim could fail if the contract does not properly record what it was agreed that the Principal Designer would do.
Equally, the Client might have an equivalent claim against the Principal Contractor under the contract between them and similar considerations apply.
In carrying out their duties under CDM 2015, the Client, the Principal Designer and the Principal Contractor are likely each to owe a duty of care to those on site – visitors, employees, sub-contractors and the like. If an accident occurs, the injured party may be entitled to claim that one or a number of the duty holders were negligent and that this negligence caused him injury.
All three duty holders' cases will be strengthened significantly if it can proved that they complied fully with the requirements of CDM 2015.
For these reasons, it is not enough just to act in accordance with CDM 2015. To protect itself, each duty holder must be able to prove by reference to written records that it complied with its obligations throughout the duration of the project. Also, every Client must ensure that its contracts with its Principal Designers and Principal Contractor properly record their CDM 2015 obligations so that there can be no doubt as to the extent of their liability to the Client.
We can help by reviewing your contracts and appointments. Our specialist procurement and construction teams have considerable experience and can provide you with support and advice throughout the life cycle of your project. We can also provide training sessions on CDM 2015 and related regulatory issues. These can be adapted to meet your specific needs, giving your in-house team an opportunity to ask questions.
For more information on issues mentioned in this briefing, please contact us.