Our principal contractor of a major on-site refurbishment is reluctant to provide formal reports of near misses and accidents (one). I requested the report for a particular incident but the principal contractor has claimed it can’t be circulated because it may be used in a future legal action. This is a national construction company who provided an impressive PQQ presentation. My question is: Can the client of a notifiable CDM project insist that the principal contractor provide an accident/incident report? Mike

Thanks Ray I have only just managed to get hold of a copy of the CPP and it's a relatively "generic" document. The CDM Coordinator thought it was fit for purpose before works commenced and there is an assurance that near misses, incidents and accidents will be investigated but no actual mention that the information will be shared with the client. As we work in close proximity I wanted to see how they came to their conclusions and what control measures would be applied as my own organisations safety could be affected, a not unreasonable request in my opinion. I will probably just have to learn from this experience as the project is nearing completion. Mike

I agree with you from a commercial aspect but as we occupy the same site we have a duty of care to ensure the safety of our own employees, visitors and contractors. This is my second project employing a principal contractor and the first was only too happy to share information. Mike

the client can ask for whatever they want and then if agreed it forms part of the tender info as boblewis indicated

I struggle to maintain patience when the issue of legal privilege is raised as an excuse to not share information following and incident.. Corporate lawyers may want everything to be kept secret - but htye are quite simply wrong in asserting that all accident reports are legally privileged. LP can only be claimed on those reports which are explicitly commissioned and prepared on the instruction of a legal representative in anticipation of legal action. Most (ALL??) initial accident reports are prepared to enable the organisation to learn what went wrong and what can be done to prevent recurrence. They are prepared to follow company systems of work i.e. NOT commissioned by or instructed by legal representatives and NOT in anticipation of legal action. Mike: If your contract with the contractor (principal Contractor) does not spell out the health and safety obligations of both parties to the same level of detail as it spells out issues of time cost and quality - then it is unlikely the project managers (Client or Contractor) will give the subject the same level of attention as those factors. In any contract for services there should (IMHO) be a clause requiring the mutual sharing of information relating to incidents which happen during the contract. In the absence of any specific clause in contract (or possibly in the CPP) - then you are effectively reliant on goodwill, and if that fails, then vague threats.... And you may not get the information you need to learn from to protect your employees, visitors and others from any risks in future similar contract activities. If your current contractor fails to co-operate then learn the lesson and move on - and let them know why you will not contract with them again in future.

No CPP is likely to contain a reference to shared information of this nature unless specified as a contract requirement. Co-operation and co-ordination are referencing different issues. I disagree with steve strongly about legal privilege, it is an essential tool to manage any information that has the potential for prosecution. There is no harm in sharing accident reports BUT the analysis is not necessary - any client should be able to apply the issues to their organisation if they wish. As a PC I am not going to be looking at client side systems and certainly am going to need a much more equal playing field with the rest of the construction parties before opening the books so to speak. Certainly such a team approach was envisaged by Latham but such an approach rarely happens. Perhaps the HSE could help if they suspend some of the aggressive use of accident reports and investigations against an organisation.

Steve that is precisely what most careful legal advisers advise - speak to us before you put anything into writing - and it is what many cautious companies are now beginning to do. Like it or not it is here to stay unless the HSE can put together a different approach to using such information. Given their clumsy attempts to stop the firm of solicitors employed by an employer also representing employees, browbeating and second guessing the law society was always ill advised, I suspect changes will not occur or will be biased in HSE favour.

Ray I am careful to talk about analysis and not the raw data itself. There is a distinction to be made. I have and see no problems giving the data about what happened, to whom, when and where BUT the Why and How can lead to all sorts of problems. I wish that this were not so. The simple fact though is that any person, including employers, are entitled to not incriminate themselves and have adequate legal advice when answering questions. To talk of legal privilege as a device simply to avoid telling clients the information they may think they need is to misunderstand the issues involved. As chartered practitioners we do need to be aware of all the issues. Yes Steve is right about those who bandy the term LP about like a sticking plaster - probably wrongly, but this does not diminish the real value of the privilege. At the end of the day the information may well be revealed in a prosecution but in a controlled environment not at an off the cuff meeting or an exchange of emails.