Designing out risk

The prosecution of lead architect, Oxford Park Architects, towards the end of last year, was the first high-profile prosecution of a designer for breach of the CDM Regulations. Having reviewed the judgment and sentencing hearing in the case there are some useful lessons to be learnt and points to note.

Oxford Park Architects was the lead architect on a new build project in Somerset. The main contractor (who was also prosecuted) was Express Park Construction Company. At the end of the project a subcontractor of Express Park Construction was carrying out snagging works to an air-conditioning unit located on a flat roof. The technician doing the work fell from the flat roof, where there was no edge protection, and died from the resulting injuries.

The key issue was that the original design did not include an air-conditioning unit on the roof. The design was amended part-way through the project to move the
air-conditioning unit to the roof. The design risk assessment was carried out in 2003 but was not reviewed or amended when the design was changed in 2004.

Oxford Park was prosecuted for breach of the CDM Regulations (1994) and in particular, the duty to ensure adequate consideration is given in any design to avoid foreseeable risks to health and safety.

The judge decided that the accident could have been avoided by the designer specifying proper edge protection or guard rails on the roof. This should have been implemented by Oxford Park once the design was changed to include an air-conditioning unit on the roof, which required access for maintenance purposes.

Failure to review the design risk assessment was fundamental to the cause of the accident

While it may not be an unusual for the main contractor to be prosecuted in these circumstances it is unusual for a designer to be prosecuted. Oxford Park was fined £120,000, whereas Express Park Construction was fined £75,000. The judge applied the guidelines of the Sentencing Guidelines Council, and also the financial position of Oxford Park, when determining the fine. The fines are probably at the lower end of a prosecution involving a fatality.

The court agreed that Oxford Park was best placed to address the risk of falls from height and the judge commented that, as designer, Oxford Park failed to provide a “safe environment” for the deceased. It was also submitted that falls from height are a significant and well recognised risk, which Oxford Park should have been well aware of. It should have been addressed in their review of the design risk assessment.

The court did not accept the argument that Oxford Park could not have reasonably been aware of the risk of a fall from the roof, because they were not asked to review the roof design and construction. The prosecution submitted that the designer had an ongoing duty to review their risk assessments whether or not they were instructed to do so.

This is the first high-profile prosecution of a designer and the first major prosecution where the court has determined that a designer should take greater proportion of liability than the contractor. The main points to note from the case are:

• Oxford Park Architects failed to review its design risk assessment, which was fundamental to the cause of the accident
• The court accepted that a designer’s duty to take account of foreseeable risks in a design was a high responsibility
• The designer will often be best placed to address risks to health and safety including, as in this case, falls from height
• Lack of communication with the project team and failure to heed the risk assessment procedure was a key failing on the part of Oxford Park, particularly as lead designer.

It is arguable that a designer’s duty is now wider under the CDM Regulations 2007, than applied in this case. A number of the comments in the judgment reflect the statement in the ACOP for the CDM Regulations 2007, that “designers are in a unique position to reduce the risks that arise during construction work.”

Designers should treat all documents associated with their designs as live documents, which should be regularly reviewed and maintained. HSE and the courts are likely to see designers as having a central role in reducing health and safety risks on a construction project.

John Malins is a partner at Davies Arnold Cooper