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#1 Posted : 20 January 2004 10:55:00(UTC)
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Posted By Peter MacDonald
OK

This has just happened and I'm looking for some advice.

We are contracted to carry out some work on site as principal contractor. A second party employed directly by the client has been doing some work on site with us. We have no formal dealings with them and they are there to remove some redundant equipment and work in a compeletely seperate area from our activities. This morning one of their employees broke their wrist in an accident. I have been asked by our client to record this in our accident book. As they do not work for us should the client not record this and report the accident under RIDDOR.

Thanks in advance.

Peter
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#2 Posted : 20 January 2004 11:03:00(UTC)
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Posted By Paul Leadbetter
Peter

Surely the duty rests with the employer of the injured person.

Paul
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#3 Posted : 20 January 2004 12:16:00(UTC)
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Posted By Paul Craythorne
As an ex enforcement officer this is one where I would expect a dual notification. One from the employer of the injured person and one from the client on whose premises the accident occurred. If the injured party was not working for you as a sub contractor then you have no more an obligation to report it than I do.

Regards,

Paul Craythorne
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#4 Posted : 20 January 2004 15:16:00(UTC)
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Posted By Edward H
There seem to be two issues here: 1)- responsibility for reporting and 2)- the responsibilities of a principal contractor.

Unless the injured person was not employed, the legal duty to report rests solely with their employer and no one else. If anyone else chooses to report that is a matter of their free choice. If they were not employed then it falls to the 'person in control of the site'.

Whether as principal contractor their work falls under your control [or should fall under your control]will depend of whether the work they were doing was part of the client's overall project. So if the redundant machinery was being removed as part of the client refurbing the area and your activities were also part of that refurb process then under CDM both work activities would be part of the same overall project and if the client had appointed you as principal contractor for that project you would have duties to co-ordinate etc. both activities. The fact that they are not your sub-contractors is not relevant [other than making it a damn sight more awkward!!]
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#5 Posted : 20 January 2004 19:31:00(UTC)
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Posted By Paul Craythorne
Edward,

Although you didn't directly say it, it seems like my response was being questioned. Firstly the information provided by the poster of the question did not say that the project fell under the scope of CDM and although there was a Principal Contractor in place it doesn't necessarily follow.

However, lets assume that it was a CDM project then as such the Principal Contractor would normally co-ordinate the activities and health and safety management of all sub contractors.

In this case the Client has chosen to separately engage the services of another contractor to work on another project that does not fall under the control of the Principal Contractor's site.

Therefore the Principal Contractor has no obligation to this sub contractor other than where their activities may affect the others.

The duty to report falls on the sub contract employee's employer as you have quite rightly stated. However, as the accident took place on the Client's site then they also have a duty to that sub contractor to ensure his health and safety whilst on their premises.

In this instance there is often a need for joint reporting if not for any other reason than it increases the likelihood that it will be reported (some sub contract firms would not bother).

Hope this helps.

Regards,

Paul Craythorne
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#6 Posted : 20 January 2004 20:51:00(UTC)
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Posted By Martyn Hendrie
A beg to differ form you last response Paul.

If the contractor engaged directly by the client is carrying out "construction work" on the project, then the Principal Contractor has duties in relation to the co-ordination and control of their works.

"On the project" would include any work necessary for the project to be completed whether or not it formed part of the Principal Contractors contracted works.

Furthermore contractors on a CDM Project have a duty to inform the Principal contractor of any reportable accidents they have.

I also do not see where the law requires dual reporting the basic rule for injury to an employee is that the employer must notify to the HSE
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#7 Posted : 21 January 2004 12:07:00(UTC)
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Posted By Paul Craythorne
Martyn,

You have your opiion and I have mine. I fail to see how a Principal Contractor can be responsible for other contractor activities where it is carried on outside of the Principal Contractors site. How far would you extend this? If the sub contractor is engaged directly through the client and is working on a separate project to that which is controlled by the Principal Contractor then it is not reasonable to expect the Principal Contractor to manage them.

With regard to dual reporting I never said it was a legal requirement and if you read my posting I agreed that it is the responsibility of the sub contractors employee. However, companies that operate 'Best Practice' on health and safety and are serious about it would build into their system a requirement to notify all RIDDOR accidents that occur on their premises regardless of whether it is an employee or not.

Regards,

Paul Craythorne
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#8 Posted : 21 January 2004 12:23:00(UTC)
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Posted By Allan St.John Holt
Paul,

Your version of 'best practice' and mine appear to differ. I think that conscious over-reporting isn't best practice. I think that ensuring that all contractors on a site know and comply with their legal duties in this and other respects would constitute best practice.

If the HSE want the situation to be that 'occupier reports everything', then it should get RIDDOR changed. Time for a review now, surely?

Allan
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#9 Posted : 21 January 2004 13:30:00(UTC)
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Posted By Edward H
I will assume that CDM applies and that both sets of work are construction work.

The test as to whether work legally falls under the control of a Principal Contractor or not, relies on the natural extent of the clients project, in the words of HSG224: the "work required to achieve the end result desired by the client".

This is not limited by site location [a project might require several 'sites']; nor financial association [who pays who]. If discrete packets of work are clearly seperated in time [e.g. demolition several months before new construction starts] they can be justified as seperate projects. The client cannot artificially divide up a project.

This situation of several contractors working directly to the client occurs quite often. CDM requires the PC to co-ordinate the work of "contractors" it does not use the term sub-contractor. In all similar cases that I am aware of the HSE has applied the above line. [Except the Millenium Dome... but thats a long story...]
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#10 Posted : 21 January 2004 16:06:00(UTC)
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Posted By Adrian Watson
Dear All,

The duty to report accidents is laid down within RODDOR 95.

It states in Sect 3.— that "

(1) Subject to regulation 10, where—

(a) any person dies as a result of an accident arising out of or in connection with work;

(b) any person at work suffers a major injury as a result of an accident arising out of or in connection with work;

(c) any person not at work suffers an injury as a result of an accident arising out of or in connection with work and that person is taken from the site of the accident to a hospital for treatment in respect of that injury;

(d) any person not at work suffers a major injury as a result of an accident arising out of or in connection with work at a hospital; or

(e) there is a dangerous occurrence,

the RESPONSIBLE PERSON shall—

(i) forthwith notify the relevant enforcing authority thereof by the quickest practicable means; and

(ii) within 10 days send a report thereof to the relevant enforcing authority on a form approved for the purposes of this sub-paragraph, unless within that period he makes a report thereof to the Executive by some other means so approved."

"responsible person" means—

(a) in the case of—

(i) a mine, the manager of that mine;

(ii) a quarry, the owner of that quarry;

(iii) a closed tip, the owner of the mine or quarry with which that tip is associated;

(iv) an offshore installation (otherwise than in the case of a disease reportable under regulation 5), the duty holder for the purposes of the Offshore Installations and Pipeline Works (Management and Administration) Regulations 1995[14] provided that for the purposes of this provision regulation 3(2)(c) of those Regulations shall be deemed not to apply;

(v) a dangerous occurrence at a pipeline (being an incident to which paragraph 14(a)—(f) of Part I of Schedule 2 applies), the owner of that pipeline;

(vi) a dangerous occurrence at a well, the person appointed by a concession owner to execute any function of organising or supervising any operation to be carried out by the well or, where no such person has been appointed, the concession owner (and for this purpose "concession owner" means the person who at any time has the right to exploit or explore mineral resources in any area, or to store gas in any area and to recover gas so stored if, at any time, the well is, or is to be, used in the exercise of that right);

(vii) a diving operation (otherwise than in the case of a disease reportable under regulation 5), the diving contractor;

(viii) a vehicle to which paragraph 16 or 17 of Part I of Schedule 2 applies, the operator of the vehicle;

(b) (where sub-paragraph (a) above does not apply) in the case of the death of or other injury to an employee reportable under regulation 3 or of a disease suffered by an employee reportable under regulation 5, his employer; and

(c) in any other case, the person for the time being having control of the premises in connection with the carrying on by him of any trade, business or other undertaking (whether for profit or not) at which, or in connection with the work at which, the accident or dangerous occurrence reportable under regulation 3, or case of disease reportable under regulation 5, happened;

On the stated facts the person's employer has a duty to report the accident, as it clearly falls within Reg 2 (1) para (2) under responsible person.

Secondly under the Social Security (Claims and Payments) Regulations 1979, employers have a duty under Reg 25 to:

" (3) Every owner or occupier (being an employer) of any mine or quarry or of any premises to which any of the provisions of the Factories Act 1961 applies and every employer by whom 10 or more persons are normally employed at the same time on or about the same premises in connection with a trade or business carried on by the employer..."

As the person is not your employee, you do not have to record it in your book.

CDM is a red herring in this instance.

Many Regards Adrian Watson
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#11 Posted : 21 January 2004 16:11:00(UTC)
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Posted By Adrian Watson
Just for the pedants,

RODDER should read RIDDOR.

Regards Adrian Watson
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#12 Posted : 21 January 2004 18:53:00(UTC)
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Posted By Paul Craythorne
Adrian,

Thank you for taking the time and trouble to provide the information. I couldn't put my hands on my copy of RIDDOR and to be perfectly honest I had better things to do.

I was beginning to think of words like 'banging' and 'my' and 'head' and 'off' and 'a' and 'brick' and 'wall' with some of the previous respondents blinkered approach and infatuation with CDM

Regards,

Paul Craythorne
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#13 Posted : 21 January 2004 19:32:00(UTC)
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Posted By Martyn Hendrie
Without wishing to enflame a raw nerve any more. I for one responded because, being a construction safety adviser for the last 24 years, I believe that the information given that the Principal Contractor had no responsibilities in relation to the clients other contractor was wrong. Indeed, if followed would leave the PC open to enforcement action.

I do not consider that to be Pedantic
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#14 Posted : 21 January 2004 19:36:00(UTC)
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Posted By Martyn Hendrie
Sorry I did not mean Pedantic I should have written an infatuation
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#15 Posted : 21 January 2004 20:31:00(UTC)
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Posted By Wilf Archer
Like all health and safety questions the answer raises more questions.

Let us apply a little common sense to this problem. The Principal Contractor (PC) has a contract with the Client to carry out the control of the project etc. including sub contractors. This contract will include all works required as part of the project. The Client has a duty to inform the PC of any changes to the contract and in this case engaging a separate contractor is a change of terms for the PC because the works being carried out by the new contractor may have an effect under the PC’s domain. Even if this is an entirely new contract with nothing to do with the PC, in the interest of health and safety the Client has a duty to inform the PC through the Planning Supervisor of any potential hazards etc.
i.e. A Principal Contractor has a welding operation scheduled for Thursday afternoon. The Client however has arranged that Transco have a gas valve replacement into the mains gas mains scheduled for the same time. Or If you are on a site and are excavating a trench and an adjacent site (nothing to do with you) has a delivery of 40 tonnes of hardcore rubble and the delivery vehicle has to drive past your trench then you have a problem.
Therefore to ensure the safety of personnel and the project requires good 360 degrees communications. Failure to confide in all interested parties could result in a catastrophic incident. Risk Assessments are clear – those who may be affected by the operation. That is why the Principal Contractor is responsible for being aware of all other works being carried out onsite just in case there is a potential problem of incompatible works and why at contract stage he has to ask the question.

However if there is an accident, as in this case, the Principal Contractor cannot be held responsible for reporting it. I would expect the PC to be extremely annoyed at someone working in or around their site without their knowledge. Therefore on noticing the new contractor the PC should have contacted the Client or the Planning Supervisor for a meeting to discuss what was going on.

On a separate note any notification by the PC would appear on the PCs safety record and may affect future contracts.

All this should have been sorted out before the accident.

I suggest that the PC insist that the employee’s employer report this and that they record it within the site log book alongside the Client’s failure to notify them of any new works being carried out on or near the site.

I would rate the failure to inform the Principal Contractor more important than duplicate reporting.

Wilf Archer
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#16 Posted : 21 January 2004 20:54:00(UTC)
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Posted By Martyn Hendrie
I feel that we need to be very careful with the terminology used whan discussing CDM.

The CDM regulations relate to a construction PROJECT. That project includes all the construction work necessary to complete the project for the client to have use of his building/ structure, etc irrespective of the contractual arrangements for its completion.

THE PROJECT IS NOT THE SAME AS THE CONTRACT

There are some grey areas especially in relation to the provision of services that have to brough some distance to site. However, a second contractor physically within the site boundary is not within that grey area.

Also the CDM regulations do not use the term "subcontractor" as it has no relevance to the regulations. Being criminal law it takes precedence over the civil/ contractual arrangements, anyone carrying out construction work on the project is a contractor.

The Planning Supervisor has no duties in relation to matters of control; co-ordination; communication and co-operation during the construction phase. His duties during construction are limited to ongoing design issues and the health and safety file
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#17 Posted : 21 January 2004 22:13:00(UTC)
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Posted By Paul Craythorne
Well said Wilf. The PC does not have the responsibility to notify the HSE. Some other respondents were too warapped up in the CDM chain of command on this one.

You are also right about the Client obligations and the PC being informed as part of two way communications.

Paul
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#18 Posted : 22 January 2004 09:25:00(UTC)
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Posted By Peter MacDonald
I'm glad my thread generated such discussion as I was sure I was correct until the interested parties sat down and went to war.

Thanks everyone for clearing it up.
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#19 Posted : 22 January 2004 10:22:00(UTC)
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Posted By Martyn Hendrie
There are two issues here.

Firstly, does the Principal Contractor have to report another contractors injury accident under RIDDOR - No (however, in an earlier response there was the suggestion that dual reporting should take place)

Secondly, is the Principal Contractor responsible for the control, co-ordination, monitoring of all contractors (including clients other directly engaged contractors)whilst they are carrying out works that are part of his project - Yes

Before Paul accuses me of being fixated on CDM issues if the project is construction work then the issues around who has responsibilities in CDM are fundamental to legal compliance on those works. (The reason CDM was raised was Paul's response indicated the PC had no responsibilities for the clients other contractor)

Either, I and every construction safety professional I know has been getting it wrong for the last 9 years or others have better insight into the requirements of CDM.
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#20 Posted : 22 January 2004 13:12:00(UTC)
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Posted By Peter MacDonald
We are decomissioning buildings, plant and equipment. The injured party worked removing client property prior to us arriving in certain buildings. We know where they are going and how long they will be there, they know where we are and what we're doing. My question was strictly to do with who reports the injury under RIDDOR. I strongly believe we have no duty to report the injury, only record the details in the site file as an accident to a non employee.

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