29.Aug.2018

Property developer receives custodial sentences for serious demolition site safety breaches

Construction is dangerous business. Whilst the number of deaths has decreased in recent years, in 2017-2018 there were 38 construction worker fatalities across the UK, with another 64,000 workers having suffered non-fatal injuries (2016-2017).

These figures are higher than in any other industry sector, with most fatal accidents occurring as a result of falling from a height. A high proportion of these incidents occur on small construction projects. The Health and Safety Executive (HSE) is well aware of this fact, and as well as performing spot-checks on construction sites, also routinely carries out targeted inspection initiatives.  

Construction Health and Safety Regulations

There are several Construction Health and Safety Regulations applying to works on construction sites, including the Health and Safety at Work etc. Act 1974, as well as construction specific legislation such as the Construction (Design and Management) Regulations 2015.

Over the years the Construction (Design and Management) Regulations (CDM Regulations) have been amended to place more responsibility on the client, with the intention that the client, as the one who “holds the purse strings”, can ensure health and safety is given the prominence it deserves.

The CDM Regulations require clients to satisfy numerous obligations, including making suitable arrangements for managing their project in order that construction work can be carried out, so far as reasonably practicable without risk to health and safety; appointing the principal designer and principal contractor (where applicable); ensuring a construction phase plan is prepared before construction works commence and that suitable welfare facilities are provided for the duration of the construction work. 

The Client is also responsible for ensuring the designers and contractors it appoints have the suitable skill, knowledge, experience and organisational capability to perform their duties and that the principal designer prepares a health and safety file that is made available to anyone who needs it.

Organisations that do not carry out their duties, also need to consider the implications of the Corporate Manslaughter and Corporate Homicide Act 2007. The Act can impose criminal liabilities on companies, including large organisations where serious failures in the management of health and safety result in a fatality.

Recent Prosecution

A recent judgment in England should be a reminder to clients that they need to take their duties seriously, and there could be serious consequences for those who do not.

A property developer was recently jailed for serious safety breaches at a demolition site in Oldham, Greater Manchester. The court heard that Mr Ahmad, the developer, had employed a team of workers who had no experience of construction or demolition, in order to carry out the works at the site in Oldham.

The HSE visited the site shortly after receiving a call from Oldham Metropolitan Borough Council’s building control department on 11th August 2017. The HSE found that almost all of the internal walls and supports of the internal roof had been removed. The condition of the structure was so dangerous that a prohibition notice was served to prohibit any further work being carried out and a major road next to the building was closed.

The following day it was established that there was no safe way of entering the building, and Oldham Metropolitan Borough Council obtained an order to demolish the existing structure. Unfortunately, prior to the Council being able to do this, the building partially collapsed, resulting in a major emergency incident involving Greater Manchester Police and the Fire Service. The area was evacuated and cordoned off and the Council arranged for an emergency demolition of the remainder of the building later the same day.

The HSE investigation established, that had a principal contractor been appointed and a suitable risk assessment been carried out, these steps could have ensured the stability of the building during the demolition, as control measures such as scaffolding would have been used. Mr Ahmad was found to have employed unskilled workers who had no experience of construction; had neglected the risks from working at height; had ignored the stability of the building; had failed to provide the workers with basic welfare facilities; and, had not considered several health hazards.

Mr Ahmad was found guilty of breaching Section 2(1) and Section 3(1) of the Health and Safety at Work etc. Act 1974, which was essentially a breach of the duty of the employer to ensure that his employees were not exposed to a risk to their health and safety. Mr Ahmad was also found guilty of a breach of Regulation 19(1) of The Construction (Design and Management) Regulations 2015, which was a breach of his duty to ensure that all practicable steps must have been taken, where necessary to prevent danger to any person, to ensure that the existing structure did not collapse if, due to carrying out the construction work, it became unstable or was in a temporary state of weakness or instability. He was sentenced to eight months imprisonment for each offence, with the sentences to run concurrently. He was also ordered to pay the £65,000 prosecution costs.

In sentencing, the Judge remarked: “This was a very serious case indeed. It was nothing short of a miracle that only one person was injured. A clear statement has to be made to those who undertake significant projects such as this, namely that health and safety legislation has to be adhered to for good reason, and those who ignore its basic tenets will receive punishment.”

This case is perhaps an extreme example of blatant and avoidable breaches of health and safety laws and CDM regulations. However it should also serve as a reminder the HSE will always take site safety seriously, and will take action against those that fall below the required standards.

With additional reporting by Neil Robertson, Solicitor in the Property & Infrastructure team.

 

Should you require further guidance regarding the CDM Regulations, please contact Kirsteen Milne, Senior Associate within the Property and Infrastructure Division.

For further advice in relation to Health and Safety generally, please contact Kevin Clancy.

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