The Health and Safety Executive (HSE) has been carrying out a review, in one form or another, of the CDM Regulations since 2009. In July 2013 it looked possible that we would have a new set of regulations in force by October 2014. With the consultation yet to be launched, this timetable now looks unlikely. The May 2015 election even puts a 2015 introduction into question.
Nevertheless, the CDM Regulations are certainly set for an overhaul and one of the key elements of the current proposals is the replacement of the CDM Co-ordinator role with a new 'Principal Designer'. The precise duties of the Principal Designer are not yet clear.
The recent case of MWH UK Ltd v Wise [2014] EWHC 427 (Admin) has highlighted some issues that may result from directing the pre–construction co-ordination role away from CDM Co-ordinators to a Principal Designer.
In MWH, the court reiterated that one of the CDM Co-ordinator's duties is to check any pre-construction information and to advise the client regarding any gaps in that information. In this case, MWH UK Limited had failed to properly advise the client regarding the risk of the presence of asbestos and the absence of an asbestos survey.
The court also held that the CDM Co-ordinator was the key safety advisor at the pre-construction stage of the project and was expected to be able to identify the nature and level of detail of the hazards to be addressed. The judge emphasised that the CDM Co-ordinator was not expected to have the expertise to make a detailed assessment of the hazards, but was expected to have sufficient expertise to understand whether they had been addressed, which was a matter of fact and degree in each case.
This case will undoubtedly raise concerns amongst design professionals who, under the current proposals, will be required to fill the role of Principal Designer. Although the set of duties which will make up the role of Principal Designer are yet to be explicitly defined, it is clear from MWH that there are obligations currently performed by a CDM Co-ordinator that many designers would be unwilling or perhaps unable to fulfil.
Design professionals might consider using the continued delay in introducing new CDM regulations to review their health and safety skills and training to identify the duties they are willing and competent to take on when the changes to CDM arrive.
Ann Metherall leads Burges Salmon’s Health and Safety team and Martin Jones is a solicitor in our Construction and Engineering team.