CDM and regulatory reform
Subject to Parliamentary approval, new Construction (Design and
Management) Regulations 2015 (CDM) will come into force on 6th April
2015. HSE has published draft legal
guidance (L153)1 (http://www.hse.gov.uk/pubns/books/l153.htm) before the Regulations come into to help
anyone who has duties under the Regulations to prepare in advance. There will be no transitional period allowed
for the events industry although the HSE has said that it will only proactively
target events involving higher risk erection and dismantling of temporary and
demountable structures. The HSE has
identified four strands for what it calls the entertainment sector which are TV
and Film, Outdoor, Theatres, and Venues. They have acknowledged that exhibitions will
need separate consideration and the industry has been invited to send a
representative to JACE2. It
is not clear whether exhibitions will constitute a separate strand. The HSE intends to publish guidance for each
strand and have stated that they will do so by April 6th. It is not clear whether exhibitions will have
its own guidance or still fall within the Venues strand.
The key issue is that with 10 weeks to go before implementation and
with no published guidance we are left with no clear idea of the full impact of
these regulations legally, operationally and financially.
X-Venture has published a more detailed analysis of L153 to accompany
this brief although those with direct interests in the outcome of the
implementation of CDM are advised to read widely on the subject and canvass
other views until the HSE can provide us with more certainty.
Those found innocent may still incur defence costs
Many will recall the tragic event
in 2011 when drifting smoke from a rugby club firework display caused a
multiple pile up on the M5 and 7 fatalities.
The organiser was originally charged with 7 counts of gross negligence
manslaughter and later acquitted of health and safety offences3 on
the grounds of foreseeability (see below).
Until recently defendants found innocent and not in receipt of legal aid
could recover most of their costs but this changed in 2012 with the Legal Aid,
Sentencing and Punishment of Offenders Act 2012. Although the judge has some discretion if
there is thought to be improper conduct by the prosecution this was not the
case and so the defendant was liable for the full costs of his defence. Winning a case could turn out to be a pyrrhic
victory underlying the value of preventative strategies.
Reasonably foreseeable risk
A number of recent cases have
contributed to the definition as to what might be deemed as reasonably
foreseeable. This is particularly
pertinent in the event world where we often have to assess risks which are
difficult to foresee and quantify given that the very nature of an event is
that its context in terms of location, content and visitor profile will always
be unique. In the above case of the M5
crash Geoffrey Counsell’s defence hinged on whether the accident was foreseeable. The judge held that even if it could be
established that smoke had contributed to the poor visibility caused by the fog
already present on the motorway, this could not have been reasonably foreseen
and therefore was not material.
In the case of Mr Counsell it
might be reasonably assumed, given that the accident was judged to be not
reasonably foreseeable, that he acted with reasonable care. But what if employees behave foolishly? A Recent case which went to appleal4 sets
a new precedent. The employee whilst
attempting to clear a jammed conveyor ignored the established controls causing
his arm to be dragged in resulting in a fracture. The engineer admitted that he had taken a foolish
risk. Despite this and the fact that the
company had proper controls, risk assessment and a permit to work system in
place they lost the case and incurred fines and costs totalling £41,500. The company did not foresee that the employee
would behave foolishly in the risk assessment and it is a reminder to duty
holders to factor this in when conducting risk assessments.
Fee-for-intervention (FFI)
The HSE’s much maligned FFI
scheme, which has been a regular feature of these updates, is still attracting
comment. The HSE commissioned an
independent review which has found that FFI has been applied fairly and
properly although this has not stopped the criticism by many commentators who
point out that HSE inspections have risen by 6%. Recently HSE chair Judith Hackitt issued an
unequivocal statement that the FFI scheme would remain unchanged. My view is that it encourages to the HSE to
enforce the letter of the law for a material breach. It remains to be seen how this device to
charge for their services comes into play when event construction becomes
subject to CDM regulations.
A recent ruling by HMRC has
determined that since charges imposed on offenders are technically a charge for
the HSE’s services they are deductible against corporate tax which may be a
small compensation for those who end up paying out.
Forklift and telehandler fatalites
A wholesaler has been fined
£175,000 plus £18,450 costs after an assistant at one of its branches was hit
and killed by a forklift. The case
hinged around the company’s failure to adequately protect pedestrians from forklifts
with designated routes.
In a separate case Costain paid
out £615,000 in fines and costs following the death of a telehandler driver
when it overturned on him. The HSE found
that the safety of the vehicle was compromised by the limited space and other
obstructions where he was required to work.
Whilst neither case is related to
the events industry the circumstances are easily comparable to event
construction work. Vehicle movement and
in particular the safety of pedestrians will be an HSE focus under CDM and
those that have actually delved into L153 will have spotted that regulations 27
and 28 specifically address these issues.
Notes
1. L series guidance provides advice to help dutyholders
comply with the law but does not have the same legal status as an approved code
of practice (ACoP) and includes a clause by clause examination of the
regulations.
2. Joint Advisory Committee on
Entertainment
3. R v Counsell
4. Polyflor v HSE
