Prosecutions under the revised CDM regulations won’t be reported until next year at the earliest. But it looks likely that we are on course for stricter compliance
As Rudi says, we are coming up to the first anniversary of the CDM Regulations 2007. All the latest information confirmed to me by the Health and Safety Executive indicates that health and safety precautions continue to be brought exclusively under the old CDM Regulations 2004. In view of what appears to be about a two or more years’ delay in the process, the likelihood is that prosecutions under the 2007 regulations will not be reported before next year at the earliest.
Despite this procedural hiatus, a review of those recent cases gives an indication that health and safety remains of paramount importance and the likelihood for the future is a move to stricter compliance and not a relaxation in the application of this important European directive.
Ten days after the 2007 regulations came into force, the local authorities of South Ribble and Leicester successfully prosecuted the client and two designers under the then just revoked 1994 regulations. Three years previously, an employee of Telford Tower & Scaffold died after falling through a roof light while working on an extension to a warehouse on Unichem’s premises in Walton Summit Industrial Park Preston. The designers, David Isherwood and Ian McCann, were each fined £2,500 and Unichem as the client was fined £3,000.
The second fatality prosecuted under those old regulations was brought by the London Borough of Tower Hamlets against Crawford and Company Adjusters (UK) when a non-employee was electrocuted in 2003. As planning supervisors they were found to have failed to appoint a principal contractor or to ensure a safety plan was in place before work began on site and were fined £4,000.
It is not surprising that to date the HSE has reported no prosecutions under the 2007 regulations. The HSE records 10 prosecutions since 6 April 2007 under the 1994 regulations which appears to indicate a delay of two or more years. It thus seems unrealistic to expect any prosecutions in 2008 under the 2007 regulations. The real concern is how will the future year look from a health and safety perspective?
Two words of warning for 2008:
• The Council Directive 1992/57/EEC dated 24 June 1992 for minimum safety and health requirements on construction sites which gave rise to the 2007 regulations (and 2004 regulations) has not been adequately implemented according to the European Commission – it would wish domestic clients to be included and the 30-day construction exemption to go.
The future is now more certain – requiring clients, contractors and workmen to become properly trained and adopt ACOP-compliant methods and habits from the outset in order to avoid prosecution
• The early day motion tabled by David Cameron attempting to review the stringency of the 2007 regulations debated on 10 May 2007 resulted in the committee fully supporting the 2007 regulations.
The result is that the 2007 regulations may only become more and not less stringent and wide-ranging, and the recent successful prosecutions over fatal incidents brought last year are likely to be successfully brought under the 2007 regulations.
Indeed other recent examples (also under the 2004 regulations) confirm this for non-fatal incidents. In April 2007 Castle Point prosecuted D Nunn Builders, which was fined £3,000 following a complaint about conditions on site that highlighted a failure to manage risk of falls from unguarded stairwells, open window frames and open edge to scaffold, together with poor welfare conditions, no F10 notification form and an inadequately trained site manager – the offence occurred some three years ago.
Also in April 2007 Capital Demolition (UK) was successfully prosecuted and fined £11,000 for inadequate welfare and an unsecure site, and in the same month Andrew Dickman t/a Dickman Developments was fined £9,000 for failing to follow non-compliance notices served by the HSE.
The HSE, in conjunction with the 2007 regulations, published the Approved Code of Practice, which advises on all duties but in particular gives an assessment of competence. This should help raise standards and formalise arrangements on construction sites. The ACOP stresses the need for the proper communication of health and safety on projects and goes a substantial way in practical terms to meeting the European Commission’s requirement to maximise safety and health requirements on site.
The future is now more certain and only likely to become yet more all-embracing – requiring clients, CMD operators, principal contractors, contractors and workmen to become properly trained and adopt ACOP-compliant methods and habits from the outset in order to avoid prosecution.
Mark Raeside is a QC at Atkin Chambers