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CDM What are the CDM Regulations?

The Construction (Design and


Management) Regulations 2007 The UK response to EC Directive 92/57/EEC – Temporary
or Mobile Construction Sites Directive, which applies
across all Member States and has been implemented in
accordance with local practice.

Replace CDM Regulations 1994


Replace Construction (Health,Safety
(Health,Safety and Welfare)
Regulations 1996 (now Part 4)
New Approved Code of Practice

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CDM 94 – Setting the Scene


The basic requirements of the Temporary
History
or Mobile Construction Sites Directive are:
Two part implementation of the directive:
To ensure that where two or more contractors are
working on a site that arrangements are in place for one
contractor to control and manage health and safety on
the site. Construction (Health, Construction (Design &
Safety & Welfare) Management) Regulations
To ensure that the client and the contractor are provided Regulations 1996 – to deal 1994 – to deal with the
with competent advice in respect of health and safety with the activities management issues.
issues. themselves
To ensure that the required documentation is produced
at specific stages of the project.
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CDM 2007
The Construction (Design and
Management) Regulations 2007
Effective – 6 April 2007 and structured into five parts:

Part 1 – Introduction
(regulations 1 to 3);
Part 2 – General duties applying to construction work
(regulations 4 to 13);
Part 3 – Additional duties where a project is notifiable
(regulations 14 to 24);
Part 4 – Health and safety on construction sites CDM – is it working?
(regulations 25 to 44); and
Part 5 – General
(regulations 45 to 48).
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Regulatory Impact Assessment (RIA) CDM Duty Holders
CDM 2007 recognises a number of duty holders, each
having duties and responsibilities under the regulations,
It was stated that the aim of CDM 2007 is to reduce
namely:
construction accidents and ill health by:

being flexible and accommodating the wide range of contractual The Client
arrangements to be found in the construction industry;
Designers
emphasising the need to plan and manage work rather than the
bureaucracy associated with it; CDM Coordinator – for Notifiable projects
emphasising the communication and co-co-ordination advantages of duty
holders working in integrated teams; and Principal Contractor– for Notifiable projects

simplifying the way duty holders assess competence. Contractor

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Structure of UK Construction Industry The Client


CDM 2007 does not reflect the way in which the industry is Broadly speaking clients can be placed in two categories:
structured in the UK and fails to mention, or to place any
duties or responsibilities on the Contract Administrator,
Employer’s Agent or on Project Managers. The knowledgeable client – development, construction and
These roles are pivotal to the management of construction maintenance form part of their core business activities.
projects -the arrangements for managing projects being one
of the main concerns of these regulations - yet are not The un-knowledgeable client – the one-off client with little
mentioned in the regulations. or no knowledge of managing construction projects who
In addition many key decisions are made on cost grounds yet relies upon their professional advisor or in the case of
the cost consultant [unless are also involved in design] is not smaller projects – the advice of the contractor engaged to
included or recognised in these regulations. carry out the work.

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CDM 2007 – Client’s duties CDM 2007 – Client’s duties


The definition of a construction project includes not only the construction Domestic projects no longer need be notified. The provisions for clients’ agents
work itself, but also all planning, design, and management or other work and developers have been removed. (One client in a project may act on behalf of
carried out before and during the project until the end of the construction all clients.)
phase. The appointment of a CDM Co-ordinator under Regulation 14(1) to support and
Property developers are carrying out work in the furtherance of a business, advise the Client (Planning Supervisors no longer exist) or a Principal Contractor
and therefore they are 'clients' under the Regulations. under Regulation 14(2).
Projects which last longer than 30 days OR involve more than 500 person The need for a written health and safety plan only applies to notifiable projects.
days of work are known as 'notifiable' projects.
Client duties are made more specific. The Client must take reasonable steps to
Non-notifiable projects are primarily non-commercial residential work and
ensure that work can be carried out without risks to the health and safety of anyone
projects which do not exceed 30 days and/or 500 man-days in duration.
Duty holders involved in non-notifiable projects have the specified concerned.
minimum obligations. Clients must tell Designers and Contractors how much time they have for
The main difference between the two types of project is that a CDM Co- planning and preparation of work.
ordinator must be appointed for notifiable projects and notice of the The facility whereby Clients can transfer their criminal liabilities (under CDM) to a
project must be given to the HSE. Client’s Agent are removed.
No work may take place on notifiable projects, other than initial design, There is an enhanced duty on Clients to exercise their influence in ensuring
until the Co-ordinator has been appointed. effective health and safety standards during construction projects.

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CDM 2007 – Client’s duties - Does CDM 2007 work for Clients?

Clients involvedCompetence
in notifiable projects have additional More burdens and responsibilities
requirements placed upon them and Clients cannot
Criminal Liability
appoint anyone to “manage, design or construct”
construct”
anything unless they are competent or under Exposure to prosecution
competent supervision. Clients are required to
establish the competence of appointees, and also to
ensure their own competence prior to accepting any Clients should be provided with better advice relating
appointment. to the options available
May intentionally or unwittingly take on role of
designers or contractors
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Clients DON’
DON’T have to CDM 2007 – Designer’s

duties
Plan or manage construction projects themselves
Specify how work must de done, unless they have Designers have always had liability for the projects that
the relevant expertise they deliver, under CDM they are exposed to criminal
liability and a number of prosecutions have arisen for
Provide welfare facilities for contractors
failings under CDM 2007, including:
Check Designer’s work to ensure their compliance ƒ The Taylor Young Partnership
Inspect the site or supervise construction ƒ Prosecution of Neil Vesma

Employ third party advisors to monitor H&S These were cases brought upon technicalities – for failures
standards to fulfil a duty under the CDM Regulations – in both cases
no one was injured.

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CDM Co-ordinator – Duties


CDM Co-ordinator – Notifiable
Primarily the role is to advise and assist the client in the furtherance of the client
projects
At the start of the CDM Regulations in 1995, Stuart Nattrass, then
duties, as set out in
paragraph 90 of the ACOP.
Principal Inspector of Construction, stated that it was not the intention
of the new regulations to create a new profession – yet various
organisations were created to service the new role of Planning Regulation 20(1)(a) is fairly wide ranging:
Supervisor – a role which over the course of the following 10 years
became widely discredited and was replaced in the 2007 regulations ‘The CDM co-ordinator shall:
by the role of CDM Coordinator in an attempt to align the role more
closely with that set out in the EC Directive i.e. that of the coordinateur. give suitable and sufficient advice and assistance to the client on undertaking
the measures he needs to take to comply with these Regulations during the
project (including, in particular, assisting the client in complying with
Appendix 4 of the ACOP lays down basic CDM Coordinator regulations 9 and 16);’.
Competence and Appendix 5 refers larger and more complex projects
– yet there are organisations that have created registers for CDM-C’s Regulation 9 covers the client’s duty in relation to arrangements for managing
where the minimum requirement for health and safety qualifications is projects and regulation 16
not met. covers the client’s duty in relation to the start of the construction phase where a
project is notifiable.
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The European Challenge to CDM European Court of Justice Judgement C-
2007 512/08 Nussbaumer
The first challenge to CDM2007 is a recent case heard in
the Italian Courts which concerns a criminal prosecution
brought against MARTHA NUSSBAUMER for failure to
comply with the local construction regulations.
The European Directive –
treatment of domestic clients The court sought a ruling from the European Court of
Justice and a ruling was delivered on the 7th October
UK derogation 2010 which stated that where a number of undertakings
for domestic clients are present on a construction site, the European Union
law requires that a safety coordinator be appointed and
that a safety plan be drawn up when there are particular
risks.
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Impact of Lord Young’s report


European Directive 92/57/EEC Annex II
1. Work which puts workers at risk of burial under earthfalls,
earthfalls, engulfment in Lord Young’s Report: ‘Common Sense,
swampland or falling from a height, where the risk is particularly
particularly aggravated Common Safety’
by the nature of the work or processes used or by the environment
environment at the
place of work or site. With the publication of the recent report
2. Work which puts workers at risk from chemical or biological substances
substances
constituting a particular danger to the safety and health of workers
workers or
by Lord Young ‘Common Sense,
involving a legal requirement for health monitoring. Common Safety’ there are likely to be a
3. Work with ionising radiation requiring the designation of controlled
controlled or
supervised areas as defined in Article 20 of Directive 80/836/Euratiom.
80/836/Euratiom.
significant challenge to those offering
4. Work near high voltage power lines. health and safety advice to clients –
5. Work exposing workers to the risk of drowning.
6. Work on wells, underground earthworks and tunnels. including CDM Coordinators.
7. Work carried out by [divers] having a system of air supply. There is clear support at Government
8. Work carried out by workers in caisson with a compressed-
compressed-air atmosphere.
9. Work involving the use of explosives. level for those offering health and safety
10.Work involving the assembly or dismantling of heavy prefabricated
prefabricated advice to be properly qualified.
components.
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CDM 2007 evaluation – initial thoughts CORPORATE MANSLAUGHTER


(The Corporate Manslaughter & Corporate Homicide
Regulations are simpler and easier to understand, Act 2007)
better laid out
More flexible – but is that being applied?
Received Royal Assent 26th July 2007
Limited effect in reducing bureaucracy – some
people ‘get it’, others don’t – bureacratic approach
can throttle effective coordination
Some success in increasing client responsibility –
Came into force 6th April 2008
but patchy (who’s the client, anyway?) „ Does not apply to anything before this
Positive effect on competence – but only partly
driven by HSE date
More needs to be done to influence SMEs

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Previous High Profile Cases Previous High Profile Cases
Hatfield Rail
Crash
4 Dead

Barrow-in-Furness Legionella Outbreak 7 Dead

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CORPORATE MANSLAUGHTER Corporate Manslaughter Fines to Reach £Millions


[As reported in the Times Online February 10, 2010 by Michael
(The Corporate Manslaughter & Corporate Herman]
Homicide Act 2007)
'Businesses convicted of the criminal offence of corporate manslaughter
There must have been a death can be fined millions of pounds with a £500,000 minimum under final
There must have been senior management failings guidelines published yesterday (9th February 2010). The Sentencing
Guidelines Council (SGC), the body that sets sentencing bands for
There must have been a gross breach of duties criminal offences, said fines “may be millions of pounds and should
seldom be below £500,000” in its final guidance document. “The advice is
R v OLL Ltd (1994) following the death of 4 children on clear – punitive and significant fines should be imposed both to deter and
a canoe trip OLL fined £60K & the managing director to reflect public concern at avoidable loss of life,” the SGC said. When
deciding on fines, judges should not be influenced by the impact on
jailed shareholders and directors, the Sentencing Guidelines Council said, but
should consider the potential effects of innocent employees and the effect
the fine may have on the provision of services to the public.'

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Cotswold Geotechnical Holdings convicted of first Construction giant fined £160k after man
corporate manslaughter charge under new Act falls to his death
(15/02/2011) Date: 23 September 2010

Cotswold Geotechnical Holdings has today become the first company to be convicted of the new offence of corporate A major construction firm has been fined £160,000 after a
manslaughter.
Alex Wright was 27-years-old when he died on 5 September 2008. He was a geologist for Cotswold Geotechnical
labourer fell to his death while building Premier League side
Holdings and was investigating soil conditions in a deep trench on a development plot in Stroud when it collapsed and Everton FC's new training academy.
killed him. Kier North West, part of the Kier group which has an annual
The CPS told the court that Mr Wright was left working alone in the 3.5 metre-deep trench to 'finish-up' when the turnover of more than £2.4bn, was prosecuted by the Health
company director left for the day. The two people who owned the development plot decided to stay at the site as they
knew Mr Wright was working alone in the trench. About 15 minutes later they heard a muffled noise and then a shout and Safety Executive after the incident on 27 February
for help. 2007.
While one of the plot-owners called the emergency services, the other one ran to the trench where he saw that a Mr Davis remained in a coma for three months before he
surge of soil had fallen in and buried Mr Wright up to his head. He climbed into the trench and removed some of the
soil to enable Mr Wright to breathe. At that point, more earth fell so quickly into the pit that it covered Mr Wright
died.
completely and, despite the plot owners best efforts, Mr Wright died of traumatic asphyxiation. Liverpool Crown Court heard that a rubbish chute had been
The prosecution's case was that Mr Wright was working in a dangerous trench because Cotswold Geotechnical attached to a temporary guardrail at the window frame,
Holdings' systems had failed to take all reasonably practicable steps to protect him from working in that way. leading to a skip below. Kier North West's site management
There was no person in the dock at Winchester Crown Court during the three-week trial as it is the company, rather
than an individual, which is charged with corporate manslaughter. team had failed to ensure that the guardrail could withstand
The case was investigated by Gloucestershire Constabulary and supported by the Health and Safety Executive. the weight of the chute and materials being thrown down it.
Cotswold Geotechnical Holdings Ltd (CGH)was fined £385,000 on 17 February. The company has been given 10 The company pleaded guilty to breaching Section 2(1) of
years to pay the fine. It is the first trial and conviction of a corporate body under the Corporate Manslaughter and
Corporate Homicide Act that came into force in 2008.
the Health and Safety at Work etc Act 1974 for failing to
ensure the safety of workers. Kier North West was ordered
to pay £43,993 costs in addition to the fine.
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