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Lishka0  
#1 Posted : 18 January 2017 15:44:58(UTC)
Rank: Forum user
Lishka0

I would be interested to hear from others with regard to PC failing to implement reasonable safety controls on site. We have had a PC refuse to address safety concerns from a client Surveyor stating that they will not be putting in the controls and are happy to accept the risk. The main points picked up are around inadequate site supervision, inadequate site security & signage, lack of training and PPE issues with sub contractors. 

I appreciate that the PC is responsible for the site and we have to be careful with instructions etc and happy that we can demonstrate that we as the client have documented and escalated issues we have found to the PD/PC etc, but still does not fit well at all with me morally or legally just by raising these issues just to to be told they 'accept the risk'.  How far do we go with this? The PD does not deem the site to be needing to be closed  and also told by that as the site is not legally ours we can't do much about it and to consider breach of contract.

johnwatt  
#2 Posted : 18 January 2017 16:10:30(UTC)
Rank: Forum user
johnwatt

Under CDM 2015 the client has the following duty:

[Regulation 4:6.b] "To take reasonable steps to ensure that the principal contractor complies with any other principal contractor duties in regulations 12 to 14"

Regulation 13 details all of the principal Contractors duties. The examples that you mention certainly fall within the requirements of this reqgulation and as such the client does have a legal duty to ensure that the PC complies (note reasonable steps)

I'd also take a good look at the contract and construction phase plan. 

Failing that invite the HSE along for a site visit ;)

Edited by user 18 January 2017 16:21:46(UTC)  | Reason: typo

Ian Bell2  
#3 Posted : 18 January 2017 16:27:06(UTC)
Rank: Super forum user
Ian Bell2

As a Client - I guess it could be argued that you are in breach of CDM reg 8 General Duties - sub section (3). You should be taking reasonable action to ensure the PC complies with reg 8(1) - organisational capability and skills/knowledge to carry out the duties of PC.

You should maybe thinking of what action you wish to take to achieve compliance from the PC. Maybe a 'one way' conversation between company directors?

If you consider the risks/non compliance, then as other have said - breach of contract. I assume you have written into the construction contract that full compliance with CDm is required.

Stop paying for the work, helps to concentrate minds.

johnwatt  
#4 Posted : 18 January 2017 16:52:57(UTC)
Rank: Forum user
johnwatt

Originally Posted by: Ian Bell2 Go to Quoted Post

As a Client - I guess it could be argued that you are in breach of CDM reg 8 General Duties - sub section (3). You should be taking reasonable action to ensure the PC complies with reg 8(1) - organisational capability and skills/knowledge to carry out the duties of PC.

You should maybe thinking of what action you wish to take to achieve compliance from the PC. Maybe a 'one way' conversation between company directors?

If you consider the risks/non compliance, then as other have said - breach of contract. I assume you have written into the construction contract that full compliance with CDm is required.

Stop paying for the work, helps to concentrate minds.

Regulation 8 concerns skills, knowledge and experience as opposed to the actual dutites with respect to health and safety which is regulation 13, with reg 3 requiring that the PC complies with these. 

thanks 1 user thanked johnwatt for this useful post.
Lishka0 on 19/01/2017(UTC)
Ian Bell2  
#5 Posted : 18 January 2017 17:02:16(UTC)
Rank: Super forum user
Ian Bell2

But as a Client you could take the view that you are not satisfied that the PC has the 'skills and knowledge' and are therfore , arguably, in breach of CDM and hence the contract.

thanks 1 user thanked Ian Bell2 for this useful post.
Lishka0 on 19/01/2017(UTC)
boblewis  
#6 Posted : 18 January 2017 20:13:04(UTC)
Rank: Super forum user
boblewis

Originally Posted by: Ian Bell2 Go to Quoted Post

But as a Client you could take the view that you are not satisfied that the PC has the 'skills and knowledge' and are therfore , arguably, in breach of CDM and hence the contract.

Of course this view necessarily accepts that you as client failed to select a competent PC.  If you wish to monitor then you must build it into the contract.  Also one has to remember that the PD has no control once the PC is appointed.

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Lishka0 on 19/01/2017(UTC)
Ian Bell2  
#7 Posted : 18 January 2017 22:09:41(UTC)
Rank: Super forum user
Ian Bell2

This is true if the PC failed to show competence right from the start of a project.

Maybe the tender/bid team of the PC did 'a good sales job' when the project was out to tender - but their failings became apparent apparent after the construction phase of the project had started. Its a bit late then to find out your PC is delivering what they seemed capable of.

Ian Bell2  
#8 Posted : 18 January 2017 22:45:28(UTC)
Rank: Super forum user
Ian Bell2

'ISN'T delivering

RayRapp  
#9 Posted : 19 January 2017 08:29:39(UTC)
Rank: Super forum user
RayRapp

On the other side of the coin I have worked on construction projects where the client's representatives have been a pain in the...and have not got a clue about the practical aspects of construction safety. 

Alfasev  
#10 Posted : 19 January 2017 11:35:53(UTC)
Rank: Super forum user
Alfasev

Under CDM the primary duty holder is the PC and they have a duty to implement reasonable safety controls on site. Other legislation also applies placing duties on the employers and employees.

A client can request changes but if the PC disagrees with them they are under no obligation to comply by the requests. The client can require the PC to comply with any considerations or management arrangements specified in the PCI. However this is normally used to tackle specific risks of concern.

Because H&S is statute law most contracts simply refer to it. It is very difficult to demonstrate that a contract has been breached for health & safety reasons. Normally there is mutually agreed parting of the ways. If you stop paying for the work you will be in breach of contract and the PC will seek damages.

There is much debate on the word “must” in the CDM regulations. The HSE refuse clarify the term and I suspect they are waiting for the courts to do this. They have informally given some hints. They do not expect a client to do want is unreadable or shadow the PC, so if the PC refuses or disagrees with their request they are very unlikely to be held accountable as they have no real powers to compel them.  By raising the issues they are doing what is reasonable.

Systemic or acute H&S breaches are a different matter. If you can clearly demonstrate systemic or acute breaches and the PC refuses to act then the Client is expected to act. However you will always get issues on sites and the HSE do expect clients and PC to work together to resolve matters but ultimately the Client must report matters to the HSE.  This is the nuclear option as it will result in delays, additional costs, bad feeling etc.

thanks 1 user thanked Alfasev for this useful post.
Lishka0 on 19/01/2017(UTC)
Lishka0  
#11 Posted : 19 January 2017 11:40:51(UTC)
Rank: Forum user
Lishka0

Originally Posted by: Ian Bell2 Go to Quoted Post

This is true if the PC failed to show competence right from the start of a project.

Maybe the tender/bid team of the PC did 'a good sales job' when the project was out to tender - but their failings became apparent apparent after the construction phase of the project had started. Its a bit late then to find out your PC is delivering what they seemed capable of.

Agree! Trouble is this particular contractor is another good demonstration of great PQQ information being supplied, H&S Consultant in place and competence checks but not complying on site!  It makes me wonder why their H&S Consultant has not picked up on the issues..........

Lishka0  
#12 Posted : 19 January 2017 11:56:29(UTC)
Rank: Forum user
Lishka0

Originally Posted by: RayRapp Go to Quoted Post

On the other side of the coin I have worked on construction projects where the client's representatives have been a pain in the...and have not got a clue about the practical aspects of construction safety. 

Very good point, RayRapp huge issues often exist with over the top demands. On this occasion the surveyor has a good knowledge of H&S and construction to understand the issues and has tried to work with the contractor in the first instance. Still no joy so maybe different tact is needed!

Acorns  
#13 Posted : 20 January 2017 11:45:14(UTC)
Rank: Super forum user
Acorns

Lashka0, initially this would be a good time to have a healthy discussion.  we don't know what issues have been rasied by the surveyor, but if you were to look at their concerns as a lay person with little/no CDM awareness, would you have concerns?  If so, that would be a good place to start with the PC.  Are we sure all the information and concerns have been passed along and are we sure we have received an informed and reasoned response.   If we are sure of our basic concerns and their legitimacy then a very serious conversation needs to be had and to seek the most favourable outcome and then see where you stand.  It may be a case of egos and whispers that is causing the problem.  In any event, it needs to be well documented by all concerned so as to ensure there is good evidence should it go torwards allegations of breach of contract or other litigation.  

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