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Example Construction Essay

Review and evaluate the impact of the proposed Construction (Design and Management)(CDM) Regulations 2006 in the improvement and management of risk.

Theproposed changes to the Construction (Design and Management) Regulations 1994aim to simplify the clarify the existing regulations; make the currentregulations more flexible and compatible with procurement requirements; placethe emphasis on the management of health and safety risk rather than creatingpaperwork and to strengthen the co-ordination and co-operation betweendesigners and contractors. The initial Act wasintroduced with a view to setting a safety standard because of the largeaccident record prior to its introduction. The HSC produced a consultation paper explaining the proposed changes on 31 March 2005 with the consultation open until 29 July 2005, though there has beenan extension to receive response documents to 31 August 2005, as many were notsubmitted in time by the time of the consultation on 29 July 2005. The Regulationsare expected to come into force in October 2006.

TheCDM Regulations were made under section 15 of the Health and Safety at Worketc. Act 1974, the principal Act dealing with securing the health and safety ofpeople at work and those whose health and safety could be affected by workactivities. The regulations came into force on 31 March 1995, and implementedprovisions of European Directive No. 89/654/EEC, Temporary orMobile Construction Sites Directive, which specifies a health and safety plan to beadhered to by five key parties to be involved in the Regulations whenundertaking a project. These are the employer, planning supervisor,consultant, principal contractor and sub contractors and self-employed persons. The previous approachwas statutory, with a view to avoiding unsafe situations.

Underregulation 6, the client or the developer must appoint a planning supervisorand a principal contractor.The planning supervisor must notify the Health and Safety Executive (HSE) aboutthe project; fulfil specific requirements regarding design and ensure that thehealth and safety plan complies with the requirements (Regulations 14 &15). The consultant (or designer) has a duty to design to minimise risks inaccordance with health and safety legislation. The principal contractor has toco-ordinate all contractors to ensure compliance with the health and safetyplan. Contractors and self-employed persons have to co-operate with theprincipal contractor, and to advise of any risks connected with their work.

TheCDM Regulations 1994 apply to construction work lasting for more than 30 daysor involving more than 500 person days of work; construction work involvingfive or more people on site at any one time; design risk related toconstruction and demolition work.

Priorto the introduction of the CDM Regulations 1994, the accident statistics were100 fatal accidents annually in the late 1980s. By 1994, the annual total offatal accidents was reduced to 75, and thereafter, from 1994 to 2004 to between47 and 73, and furthermore for injuries lasting more than three days, theannual total was 17,177 in 1989/1990, which reduced to 8162 in 2003/2004. However, critics ofthe Regulations referred to the possibility that this may be influenced by areduction in the amount of construction activity rather than purely as a resultof implementation of the CDM Regulations alone.

There were inconsistencies in case law; it was considered that a subcontractor has the duty to warn contractor of a design defect for which another party was responsible and scope of implied term as to skill and care in performing contract owed by sub contractor to contractor. In the Court of Appeal case of McCook v Lobo in which an employee was injured on a construction site falling from a ladder, it was decided that although the site owner had breached the CDM Regulations 1994 by failing to prepare a health and safety plan in advance of the commencement of the building work, it was considered that it was unlikely that such a plan would cover the securing of ladders and therefore could not be considered as having caused the injuries.

In 2002 the construction DiscussionDocument (DD) formally recognised that there was a need for changes with regardto the industry's health and safety performance, and the ensuing discussionsled to the conclusion that although the principles underpinning the CDM Regulationswere accepted, the methods adopted to implement the CDM Regulations oftenresulted in the principles being obscured beneath layers of bureaucracy andpaperwork.

Therefore, the HSC concluded that the CDMRegulations needed to be revised by refocusing attention on effective, butpractical, planning and management of construction projects. The Healthand Safety Commission launched a 4 month consultation on its proposals toreplace both the current Construction (Design and Management) Regulations 1994and the Construction (Health Safety and Welfare) Regulations 1996 with a singleset of Regulations. Adraft set of amended CDM Regulations has been drafted together with a draft ofrevisions to the Approved Code of Practice by the HSC andthe Construction Industry Advisory Committee (CONIAC). The new CDM Regulationswere made available for comment in the hope that a set of Regulations can beformed that properly address the industry's concerns in relation to health andsafety and the inadequacies of the current Regulations.

The problemswith the current Regulations also were argued to include the fact that many ofthe intended benefits were not being fully realized, contributed to by thedifficulty in implementing radical change into the construction industry andthe financial implications of full CDM compliance, together with the structureof the regulations themselves, the role of the planning supervisor being unsatisfactoryas not being part of the core contraction team. The complexity of theregulations themselves was a problem despite the consensus regarding the underlyingethos remaining valid. Theproposed CDM Regulations are intended to be simpler and to remove anyuncertainty regarding the nature of the duties imposed. They are alsostructured differently, setting out precisely what is expected of each dutyholder.

The changes that have been introduced by the CDMRegulations 2006 include the following: for applicable projects there will betwo types of construction projects, notifiable and non-notifiable, and aproject will remain notifiable if it is likely to involve more than 30 days or500 person days of construction work. Notification to HSE must be made before design work, planning or preparation for construction begins; for theclient, he must ensure there are suitable project managementarrangements for health and safety and allocate sufficient resources,explicitly including time, to ensure that this can happen. Tomake sure principal contractors have sufficient time to make proper preparationsfor work on the site, the co-ordinator has to advise them of the minimum noticeallowed between appointment and commencement of work. The client and theprincipal contractor must also ensure adequate facilities are in place at thestart of the construction phase of the project, by means of a document preparedby the principal contractor setting out the health and safety arrangements andsite rules for a project.

The client can no longer appoint an agent to delegate theseduties, as the provisions on agents will be removedas they are seen as a means to allow clients to absolve themselves of theirlegal obligations. Now several clients on the same project can now agreeamongst themselves that one client should be the sole client, the aim being toprevent anyone retaining control and avoiding responsibility.

Furthermore,the client and the principal contractor must ensure that there are adequatewelfare facilities are in place at the commencement of construction; inrelation to the planning supervisor/co-ordinator, the planning supervisor hasto be replaced by co-ordinator, the co-ordinator must be appointed before thedesign work commences and designers and contractors cannot be appointed inadvance of the coordinator. The designer must eliminate any hazards andreduce risks to the health and safety of persons carrying out constructionwork, cleaning or maintaining the permanent fixtures or using the structure asa place of work, and provide sufficient information about the design, constructionor maintenance of the structure to assist any other designers and the principalcontractor fulfill their duties.

Further requirements are specified inrelation to competence, and it is stated that no appointment or engagement isto be accepted unless the particular person is competent, perhaps in relationto industry standards. In relation to apre-tender or pre-construction plan this is to be replaced with an informationpack that should focus attention on communication of the information thatdesigners and contractors need to plan and do their work. In relation to thehealth and safety file, this will be required for a site rather than for eachparticular project. Demolition has to be planned and carried out in such a mannerwith a view to preventing, as far as possible, unnecessary danger, with arrangementsfor demolition work recorded in writing.

The civil liability that would arisefrom the introduction of the new Regulations is that employees (though notself-employed workers) will now be permitted to take action in the civil courtsfor injuries resulting from failure to comply with duties under the Regulations.

The new Regulationsare regarded as representing a 'radical and fundamental change in constructionhealth and safety legislation'. TheRegulations can be regarded as being much more detailed and prescriptive thanCDM Regulations 1994 and will impose a wide range of new duties and potentialliabilities with a potential significant impact on allocation of risks andresponsibilities in the construction industry. It can be argued that thebiggest change is in the duties of the client, who now has a number of newresponsibilities for health and safety. Furthermore, wider duties have beenimposed upon both designer and principal contractor than under CDM Regulations1994, and all sectors of the construction industry need to beaware of the effect of the proposed Regulations and the significantly increasedrisk of enforcementaction, including prosecutions by the HSE, for all members of the project team.

The purposeof the Regulations is arguably to ensure that responsibility for healthand safety is placed with those who are best placed to manage it and tosimplify the legislation to make it easier to understand the roles,responsibilities and duties of the various members of the project team.

Inevaluating the changes introduced by the CDM Regulations 2006, the consequencesthereof are demonstrated by the changes to the client'sresponsibilities made on the basis that the client has the greatest control andinfluence over a construction project, though there is significant onus uponthe client in the imposition of the obligation to appoint a competentco-ordinator and a principal

Contractorand the obligation to ensure that the co-ordinator performs his duties underthe Regulations. The additional obligation is the duty to ensure that thedesigner, principal contractor and contractors are given sufficient time toplan and prepare for carrying out construction work.

In relationto co-ordinator duties, it can be seen that the role of the co-ordinator issimilar to that of theplanning supervisor under CDM Regulations 1994, but with a number of important additionalresponsibilities which make the role of co-ordinator prominent in the projectteam. The co-ordinator's role is intended to assist the client, designer andprincipal contractor to achieve better health and safety on site.

The client'sobligation is demonstrated by the need to appoint the co-ordinator at an earlystage in the project and before any design work or preparation for constructionis carried out.

The obligation of the co-ordinator is to "identify and extract" all the informationto secure the health and safety of persons engaged in construction work andthose who are liable to be affected by the way in which that construction workis carried out, and he is also required to identify and extract information toassist the client, the designer and the principal contractor to perform theirduties under the Regulations.rguably, the co-ordinator has a broader responsibility for design and is required to adviseon the "suitability and compatibility" of designs and on any need formodification to those designs. The co-ordinator is also required to liaise with the principal contractor inrelation to any design or design changes which affect the construction phaseplan.

Theobligations upon the designer include the requirement to "eliminate"hazards which may give rise to risks to health and safety (e.g. not specifyingthe use of materials which could be hazardous, addressing design issues tominimise use of scaffolding or working at height). Furthermore, he must alsotake into account the risk to any person using a structure which it designs asa place of work in the future when it prepares or modifies its design.

The obligations upon the principal contractor includes the obligation obliged toensure that every contractoris given sufficient information to carry out its obligations under the regulationsand to allow the contractor to carry out the work safely. He must ensure that everyworker carrying out construction work is provided with site induction and anyfurther information and training to ensure thata particular element of work is carried out without unnecessary risk to healthand safety.

There isalso an obligation that there is co-operation, and duty is imposed uponeveryone covered by the CDM Regulations 2006 to co-operate with each other andto seek the co-operation of others involved in any project involvingconstruction work to enable each party to meet their obligations under theRegulations.

Criticismsof the attempt of the HSC to adapt the original Regulations include theargument that the industry's record in focusing upon the safety rules asopposed to the paper trail has been poor, and that therefore as demonstrated bythe ten year record in adopting the CDM Regulations 1994, the record of theindustry in reaping the benefits from such changes are not good.It has been argued that despite the fact that implementation of such rulesshould be simple, as it merely relates to managing projects from concept tocompletion, ensuring that there are adequate resources and sufficient time, andthat health and safety standards are integrated into all levels of projectmanagement and the benefits demonstrated to be ensured as a result, theindustry has always chosen to focus upon the costs and the unnecessary paperwork,with a view to ignoring these benefits.

Othercriticisms include the argument that the CDM Regulations 2006 do not go farenough in addressing the underlying causes of the industry's health and safetyrecord, argued by some sectors as being unacceptable.It has been argued that merely replacing a paper trail system with a systemthat focuses upon co-operation and management is not going to change much inthe statistics regarding health and safety, as in many cases the designersargue that the contractors do not understand their design solutions, andcontractors argue that designers do not understand how buildings are built. Itis argued that although it is hoped that the planning supervisor can overridethese problems by bridging the gap, often they cannot because of inadequatefees, lack of authority or a lack of skill. Therefore, the system of'co-operation' would not work because the more duties are imposed, the moreunclear each individual duty appears to be.

Ithas been acknowledged that the CDM Regulations 2006 could improve matters tosome degree in relation to the need for training and debate to increase healthand safety awareness, but an alternative solution has been suggested in which theclients procuring the projects should be made ultimately responsible for healthand safety issues, as the client is in the ideal position to do so. In thisinstance, it has been considered that the duties delegated to the client underthe CDM Regulations 2006 are vague and relate to matters such as the provisionof information. It is therefore argued that there cannot be a significantchange of the improvement and management of risk until clients in at least thepublic and commercial sectors are given more direct responsibility for ensuringthat projects are carried out with regard to the safety standards. In ensuringthis, reference is made to the need for civil and criminal sanctions.

Inconclusion, the proposals made by the HSC are merely an attempt to address manyof the main problems of the current Regulations, but as the HSC is willing toadmit, they do not deal with all the issues, and are intended to be a startingpoint, to encourage and facilitate discussion by means of responses from membersof the construction industry. The delay in submitting responses by theprescribed deadline has not in theory affected the fact that the newRegulations are due to be implemented in October 2006.It can be argued that contrary to the criticisms levelled at CDM Regulations2006, the responsibilities of the client have been increased to an appropriatedegree, and that in a fair and proportionate manner appropriate obligationshave also been placed upon other participants in a project. It appears thateven so the ultimate onus is upon the client to ensure that a planning supervisoris employed with the correct skill and experience to ensure smooth running ofthe project and to effective address the concerns regarding management andrisk.

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