We hear regular reports of construction site accidents where workers come into contact with live services when opening up, uncovering and excavating. The root cause of these accidents can often be found in the failure to provide information, instruction, training and supervision.
These are important issues in an industry involving so many different parties, and need to be given careful consideration not only by those directly involved in construction but also by professionals involved in project management, building design and contract administration.
Good practice
The legal requirements are simple and a pragmatic expression of good practice. The basic duty, which derives from case law, is codified in section 2 of the Health and Safety at Work etc. Act 1974: 'the duty of every employer [is] to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all [their] employees'.
This includes 'the provision of such information, instruction, training and supervision as is necessary to ensure, so far as is reasonably practicable, the health and safety at work of [their] employees'. These requirements are echoed and reinforced by regulations 10 and 13 of the Management of Health and Safety at Works Regulations 1999, covering, respectively, information and training.
"The legal requirements are simple and a pragmatic expression of good practice"
Roadworks criminal case
A criminal case from early 2017 demonstrates some of these statutory principles and shows how the Construction (Design and Management), or CDM, Regulations 2015 can extend those duties beyond employees. This involved infrastructure services company Amey LG, which appointed a subcontractor to carry out roadworks. One of the subcontractor's workers hit an 11,000V cable while digging out a concrete service box and sustained life-changing injuries including burns and nerve and eye damage.
- The subcontractor had carried out work for Amey previously, but the particular gang appointed to this job was new and unfamiliar with the work.
- Amey had provided the gang with a scanner to locate buried services, but had not shown them how to use it properly.
- Amey had employed a cable avoidance specialist to scan nearby services, but had not passed the results on to its subcontractor gang. It had also spray-painted markings on to the road ahead of the excavation area but had not briefed the gang on what these meant.
- Amey provided a map, but at 1:1,250 scale it was unclear due to the congestion of services in the area.
There were clear failures to provide adequate information, instruction, training and supervision. The gang in this case were not Amey’s employees, so the employee provisions of the 1974 Act did not apply directly: the prosecution was made under CDM Regulation 25 on energy distribution installations – specifically 25(4), which concerns the carrying out of suitable and sufficient steps to prevent risks from underground services.
While not cited in the case, it is also worth mentioning CDM Regulation 8: ensuring people have necessary skills, knowledge and experience. This goes hand in hand with the facts of this case, and is one of the areas on which the Health and Safety Executive is focusing in its enforcement efforts.
With the support of principal designers and consultants, clients can help avoid such accidents by, first, ensuring that appointed contractors have the necessary skills, knowledge and experience – competence – and adequate organisational capability and, second, by providing contractors with information about buildings and sites as part of CDM preconstruction information. This will go a long way towards helping contractors control such situations, but the final onus is on the contractors themselves.
The introduction of the health and safety sentencing guidelines in February 2016 has had the effect of increasing the level of fines significantly. Amey was penalised £600,000 in this case under the new regime, but the amount could easily have been a lot more.