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Never put off 'til tomorrow what you can do today: Health and safety law aspects for those in the construction processBy Simon Tolson |
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| Health and safety is a fast developing area of law spurred on by two chief factors. Firstly, the increased level of prosecutions mounted by the Health and Safety Executive which in part is reactive to public policy considerations. Secondly, judicial guidance of which there has been an abundance recently. The protection of workers from the hazards of an unhealthy working environment and dangerous working practices had, in the United Kingdom, come to be seen, after nearly two centuries' experience of industrialisation, as a matter for parliament. It is possible to trace back protective legislation to an Act of 1802 'For the Health and Morals of Apprentices and Others.' Under this Act factories were to be lime washed twice a year and provided with sufficient windows and openings to secure adequate ventilation. It was stipulated that apprentices were to work no more than 12 hours a day. Indeed, clergymen and justices were appointed as visitors to inspect mills to report in writing to magistrates at the quarter sessions. Conditions of laissez faire were strong however and much of the legislation that came to be was in many ways subservient to the interests of commerce. It was nearly the end of the 19th century before the doctrine of laissez faire was contained sufficiently to enable some statutory regulation of employment conditions. Thus history of much of the legislation before the Health and Safety at Work etc Act 1974 (HSWA) was exemplified by what had been called English empiricism because each successive statute was aimed at remedying a single evil rather than a more general policy view. Until the HSWA, the Factories Act 1961 and regulations made under it were the principal regulatory code in respect of occupational health and safety. It was to that Act that older readers may recall reference was made so often in the preliminaries part of most bills of quantities. The law in the area of health and safety slowly moved away from being reactive to specific incidents but the pattern of accident enquiry legislation was not to be ended, for example the Aberfan coal tip catastrophe in 1967 led to an enquiry and the Mines & Quarries (Tips) Act 1969 to amend the provisions of the Mines & Quarries Act 1954. The HSWA in fact stems from the recommendations of the Robens Committee that there should be a new comprehensive act dealing with safety and health at work. An Act to contain a clear statement of the general principles of responsibility for safety and health, but otherwise mainly enabling in character. The Act introduced a set of general duties set out at sections 2-7, provisions which most in the industry should at least be familiar with as for a long time these provisions were sadly neglected even by most construction lawyers. Section 3 is perhaps the most important provision to be aware of as it imposes a duty on every employer to conduct his undertaking in a way to ensure, so far as 'reasonably practicable', that persons not in his employment who may be affected are not exposed to risk to their health and safety. Section 33 goes further and makes it a criminal offence for a person to fail to discharge a duty to which he is subject under this Act. The Act also contains powers in section 15 to make 'health and safety regulations' as delegated legislation and section 16 for publication of Approved Codes of Practice. Failure to comply with health and safety legislation may give rise to criminal and civil liability and this liability may be dealt with in the criminal and/or civil courts. For the most part this European legislation is sympathetic with the
HSWA and the United Kingdom has probably been the only country within
the European Community to have promptly adopted into domestic law the
relevant Directives. But still the number of reported accidents is at
an unacceptable level. The latest published statistics of the HSE show
that fatal accidents reduced from 80 in 1997/1998 to 66 (plus four members
of the public) in 1998/1999. An improvement, but set against the numbers
of workers active tin the industry, the fall in the rate per 100,000
was only very small. The rate presently stands at 4 per 100,000(1). |
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If one takes a look at the long term statistics available for employees in the industry, the 1998/1999 rate of 4.4 per 100,000 compared with the rate of around 10 per 100,000 in the 1980s, confirms a downward trend. However, whilst a fall might indicate improvements, if one takes into account the improvements in medical care for the seriously injured, the statistics begin to look less good. There is no doubt that there is heightened awareness in the construction community of the importance of health and safety, not least resulting from the Construction (Design and Management) Regulations 1994 (CDM) but there is ample evidence as highlighted in recent articles appearing in the New Civil Engineer, that the effect of the new regulatory regime is at least perceived not to have had a marked effect on the incidence of accidents. There appears to be ample lip service placed to getting the paperwork right, but often subservient to implementing safer systems of work. The less than satisfactory safety performance of the construction industry has continued to cause concern within the industry and its governing bodies. The need for effective management of risk to life and limb in construction unfortunately does not lie well with the organisational weaknesses that arise from the division between the parties conceiving, procuring, designing and planning a project on the one hand and those executing it on the other. This weakness is made worse by the contractual fragmentation that has developed over the last 10 or so years. The dividing line between design and construction has become more obscure with turnkey projects and the prevalence of specialist subcontracting, where the interface with other elements of the building process is less co-ordinated than it might once have been. This does not help. The increased element of self employed labour also exacerbates the problems as self governance is not what it is cracked up to be with most of the small players. It is interesting, for example, that in 1998 Building Magazine attended five construction sites in London and reported an embarrassing catalogue of failures in respect of compliance with the Construction Health Safety and Welfare (Regulations) 1996. A further series of visits by Building focussed upon safety as opposed to health exposure. Again, the picture was one of disregard and flagrant breach of law and safety practice. Not surprisingly construction safety is a great thing for government led initiative. The Construction Task Force under the chairmanship of Sir John Egan sought to improve quality and efficiency in UK construction with a brief, amongst other things, for establishing 'best practice' by improving efficiency and reducing accidents. The outcome of the Egan Report was, amongst other things, that accidents could be cut by 20% per year. We then have the Key Performance Indicators (KPI's) unveiled by construction minister Nick Raynsford as part of the overall strategy for improving standards in the construction industry heralded by the Egan Report. HSE InitiativesThe HSE has declared that it intends to increase the proportion of notified accidents they investigate, no doubt so that they can bang home the message that those who cause injury by flouting the law must change their practice. Most readers will of course be all too aware with the commercial pressures that are brought to bear on any construction project, large or small. The objective of safety has to compete with the pursuit of profit and the saving of time. These age old variable factors are no less important today than they were in the past. The safety of men at work has often suffered in its duel with the profit
god. However, there is a distinct trend, most evident in the last five
years, towards the imposition of significant fines and the imposition
of penal cost orders against those who do not follow the rules imposed
by law. No longer can employers assume that they can buy off the risk
of the odd prosecution as one of the nuisance costs of being in business.
Fines now in the Crown Court have been imposed well in excess of £1 million(2).
These are not figures to be sniffed at. |
1. Abstracted from the HSE publication Health and Safety Statistics 1998/1999 and the summary HSE handout 'Safety Statistics Bulletin 1998/1999.' |
Since the introduction of the 'pack of six' set of regulations which included the Management of Health and Safety at Work Regulations, statutory requirements demanded risk assessments to compel organisations to confront safety issues head on but not a great deal has been done to educate those involved in making those decisions understand what is required by way of a balanced response. Most readers will of course be familiar with the Heathrow collapse decision which was one of the worst civil engineering disasters of the United Kingdom in the last century, made all the more poignant by the HSE's recent final report. A catalogue of design management errors, poor workmanship and quality control were at the root of the catastrophic tunnel failure in 1994. The report which is the result of a five year investigation by a specialist team followed the legal proceedings where the defendants went down in total for £1.5 million plus £200,000 costs. The HSE found that the collapses could have been prevented but a cultural mindset focussed attention on the apparent economies and the need for production rather than the particular risks. Not exactly an excellent advertisement for the New Austrian Tunnelling Method but it was not the system as such that led to the accident. As Sir Alan Muir Wood, a member of the HSE investigation team, said:
Perhaps most telling of all were the findings of the Chief Inspector of Construction, Kevin Myers who said:
One only has to look at such things as Professor John Uff's recent
report into the accident at Southall(3) where Great Western
Trains were fined £1.5 million in the Old Bailey and the spectre
of probably even higher fines as part of Lord Cullen's enquiry into
the Paddington rail disaster to appreciate that things are getting a
lot tougher. |
2. R v Balfour Beatty Civil Engineering and Geoconsult GES [1999] CILL 1487. |
The recent spate of fails and collapses from construction and engineering structures has put the spotlight still further on the subject. Not least the recent tragic crane collapse at Canada Square, Isle of Dogs. In addition the government has proposals already in the system for changing the law on involuntary manslaughter(4) and you have a recipe for a very serious need for the industry to heed the lessons of the past if they are not to take a serious tumble on the roulette wheel. Health and safety must become an issue which is addressed by every participant in the construction process, it is not a subject that should be left to the last chance saloon. The warnings have been given, the fines have no glass ceiling and the poky awaits he who does not reach the requisite standard!
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3. The Southall Rail Accident Enquiry published by HSE Books. 4. Government consultation paper: Reforming the Law on Involuntary Manslaughter: The Government Proposals. |
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