Designers in the dock

While I was acting for a premier league football team some years ago, I was lucky enough to go behind the scenes at the ground. One of the people I met there was the safety officer. He told me with pride that they had not had a pitch invasion there for more than two years. Health and safety is like that – success is when nothing happens. Unfortunately, in construction, a lot happens. Last year there were 70 construction deaths and many more serious injuries, and a greater number of minor ones.

When the CDM Regulations came into force more than nine years ago, it was the first time designers were given such a clear duty to consider the health and safety impact on the workforce who were constructing their design.

Since 1995, the standards for designers has, therefore, risen and they are now expected to understand how to design out potential hazards for construction workers. The Health and Safety Executive’s current focus on designers and their need to implement the CDM Regulations has resulted in a couple of recent prosecutions.

These cases illustrate this point.

In May this year, the HSE brought an action against architect Neil Vesma in connection with the use of heavy blocks; the workmen complained of back pain after lifting them. The approved code of practice (ACOP) that amplifies the CDM Regulations requires designers to “specify materials that are easy to handle, such as lighter weight building blocks”. The architect pleaded guilty.

In the other case in April this year, engineer Andrew Allan was prosecuted following a fatality when a sliding hangar door fell during installation. The argument in that case was that certain of the hazards arising before the hangar doors were permanently installed at top and bottom ought to have been identified on the engineer’s drawings or as an addition to the drawings. Designers have a duty under the CDM Regulations to provide “adequate” information with their designs. With hindsight, after an accident, it is often easy to see that giving extra information might have avoided the accident.

The code states in para 131 that the designer must point out significant hazards: those that are not likely to be obvious to a competent contractor, or are unusual, or are likely to be difficult to manage effectively.

The argument was that certain of the hazards arising before the hangar doors were installed should have been identified on the engineer's drawings

In the case of the hangar doors, when the contractor gave evidence, he said that he was aware of the risk of the doors being unstable during construction and the case against the engineer was subsequently withdrawn.

Designers need to talk to contractors, to understand how they interpret designs and what they need to know. Like many other aspects of design, the decision about what information to provide with it is a matter of judgment. Recognising that this may be difficult for designers, the latest ACOP (February 2002) provides lots of helpful advice on this subject. Pages 22-31 are particularly useful.

Knowing what the code says is as important as knowing what the regulations say, because “if you do follow the guidance [in the ACOP] you will normally be doing enough to comply with the law”. This is particularly important as there is little case law on what is “adequate information”.

As a member of HSE’s working group on the revisions to the CDM Regulations, I know that this aspect of designers’ duties is unlikely to change. Designing for the health and safety of construction workers will be a continuing part of the challenge to produce good design.

Gillian Birkby is a partner at Fladgate Fielder. You can email her at gbirkby@fladgate.com