Grant1962 & B.Bruce... I'm a little rusty on my case law but I think you are possibly getting criminal law and civil law confused. The case under discussion is a criminal prosecution. MDAHB vGriffith was a civil case. As others have stated the relevent case here is Associated Octel. I think R v British Steel 1994 would also be relevent as it concerned section 3 of HASWA and reasonable practicability in a client contractor relationship. There are disparities between criminal and civil law as in Tort a client can expect a competent contractor to be aware of the risks associated with their undertaking. There is case law for this but I've foregotten it. Isnt there also a disparity between section 3 of HASWA and CDM2007? As non-construction works would fall under section 3 and Associated Octel, whereas for construction works the client is not expected to visit the site to supervise or check construction work standards.

bmw I am not suggesting the client was not at fault, but if we are talking CDM regs then there is a clear provision as my post at #7 indicates that the PC does not have to directly supervise sub-contractors. Why does this precedent not also apply to the client, who is less likely to be aware of the subtleties of construction work. Would the client have been prosecuted if there was not a fatality, or would the contractor have received an EN notice?

Hi Shineon, Thanks for your post. I can see the difference in intention between S3 and Octel v CDM07 on a discrete new build construction site but what about where the works are within the scope of CDM but take place at an existing and operational client site? To me Octel and R v British Steel say you have to monitor (etc) the contractors standards SFARP, whereas CDM states as a client that you don't have to. It would be great if you could expand your post as its a legal point I struggle with to some extent. Russ

Russ I think everyone struggles with legal points! Anyway, at the risk of being shot down.. Octel and British Steel are not about monitoring per se. The key point made is that if to run your business (“conduct of the undertaking”) you need to , for example, maintain your buildings then that is a matter of fact and you will fall under the scope of HSWA S3. What you then do to comply with that duty is subject to the test of reasonable practicability. In the case of contractors coming on site it is for the host site to come up with a coping strategy for complying with S3. For example: It could be a very tight monitoring and control strategy to, in effect, treat them almost as employees with the requisite monitoring and supervision that entails. Alternatively, it could be a very vigorous, vetting and selection process along with the provision of any relevant on site information to enable the site to have faith in the contractor’s ability to manage and deliver the work themselves without direct intervention from the site during the work. Problems occurs, I think, when site/contractors do a sort of half-way house and end up doing neither one nor the other but thinking they are doing one, or the other or both. So I don’t think it’s a case that HSWA says monitor and CDM says not. I think it is a case that S3 is a more general duty that applies in the absence of a more specific regulation and CDM is specific regulation that applies in a set of prescribed circumstances (e.g. where CDM applies) and where you could argue that a client may not need to monitor on-going work because of the other checks and balances built into the totality of CDM as a piece of legislation. Did that make any sense?!

http://www.hse.gov.uk/press/2010/coi-em-21110.htm

Steve, thanks for the link. That makes it clear that this was not a case of a company hiring in experienced contractors and then beinng unfairly punished for their failures. The company had brought in a band of sub contractors and should have been controlling them. I suspect the delay in prosecuting the "contractor" is that there is not any substance to go after.

My mind followed the same train of thought recently..... We recently had some issues with a contractor used to carry out LOLER TE's on our cranes. With hindsight its easy to tell they were not competent for the task but this is only in light of a D.O. and their failure to spot a problem. Here's the catch; we have no-one here competent to TE our cranes so how would we know who is and isn't? Its obviously outside our knowledge base and they're (the contractors) members of LEEA. How would we asses competency in something we have no knowledge of? Hire someone to asses their competency and hire someone else to asses our sub-con assessor? This could go on for ever....