Posted By Stewart Campbell
A question posed at a CDM conference I attended raise the issue of civil liability that has left me confused.

On completion of a discrete area of construction the client requests to reoccupy the completed area. The client refuses to complete a handover certificate for the work in the completed area until all other areas of the building are completed and snagged.
Who is the legal occupier of the completed area? are they liable for any civil claim made for an injury incurred in that area under the Occupiers Liability Scotland Act?

For example would the contractor be liable for a civil claim as the occupier if a third party were injured due to activities carried out by the client in the completed work area. Say a trip over boxes left in a corridor.

Could CDM be used as evidence of breach of statutory duty even though major construction was finished and the client had moved in. (The project is still active until official handover so the contractor is still expected to manage the health and safety for the area)

My conlusion would be that yes the contractor would be liable and yes a breach in CDM 2007 for failing to manage health and safety could lead to evidence in a civil claim, but also result in a criminal prosecution.

Discuss

Posted By Stewart Campbell
Thanks for your response JayJay.

Assuming access and egress could be easily managed. The bigger concern would be the client beginning normal operations in a completed area of the building when the handover is yet to be completed. For arguments sake on one floor of a building where works on the project are still in progress elsewhere. Thus the PC is still the occupier until official handover, but he has no control over the area that the client has reoccupied. If the PC has not officially handed the area back to the client is the PC liable for any civil actions?

Posted By Ken Taylor
I've never been enthusiastic about these partial handovers as they can be quite 'legally messy' (eg insurance issues, fire risk assessment, means of escape, fire alarm and detection systems not in use, electrics probably not complete and certificated, lifts not commissioned, water services not 'clean', access/egress hazards, etc, etc.

In this case, if the client has not accepted handover of the part involved, they will be there as authorised visitors, under some form of unwritten licence or contract or as trespassers and the PC will remain in control of the premises under CDM. As to the legalities when the incident occurs, I would expect the various circumstances involved to be taken into account in considering where both actual control and blame can be attributed and that neither the PC or the client could be confident of exoneration. It would be interesting to hear if anyone has any examples of this to share with us.

Posted By Ken Taylor
Acting for the Client, I've had this a number of times, Bob. A typical scenario is where the contract is overrunning (to some extent attributable to Client's amendments) and both parties become keen to promote partial handover (eg to enable fitting out by others or even partial occupation and to be seen, to some extent, to meet contractual 'deadlines' with penalties in view). This is where the H&S person can get caught up in advising for or against - with both party's people wanting it to go ahead. H&S defects and snagging lists suddenly become important.