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Jean-Yves Gilg

Editor, Solicitors Journal

A positive development?

A positive development?


In the first of a series articles on the new Construction (Design and Management) Regulations 2007, Gordon Exall assesses the scope of civil liability and the importance of breach of statutory duty

There are four set of Regulations revoked by the Construction (Design and Management Regulations) 2007(CDMR):

  • The Construction (General Provisions) Regulations 1961;
  • The Construction (Design and Management) Regulations 1994;
  • The Construction (Health, Safety and Welfare) Regulations 1996; and
  • The Construction (Design and Management) (Amendment) Regulations 2000.

There are numerous incidental amendments to other regulations. Most of these relate to references to the revoked regulations and replaces them with reference to the CDMR.

Civil liability

Before we deal with definitions and duties in detail we have to know whether or not these regulations have any direct relevance for the personal injury practitioner. In particular does a breach give rise to civil liability?

This issue of civil liability for breach is dealt with in an oblique way in Regulation 45: 'Breach of a duty imposed by the preceding provisions of these Regulations, other than those imposed by Regulations 9(1)(b), 13(6) and(7), 16, 22(1)(c) and (l), 25(1),(2) and (4), 26 to 44 and Schedule 2, shall not confer a right of action in any civil proceedings insofar as that duty applies for the protection of a person who is not an employee of the person on whom the duty is placed'. The situation is only partly clarified by the guidance notes: 'Civil liability is now restricted under these Regulations only in respect of Part 2 and 3 duties, for which there is civil liability only to employees, except in respect of the duties concerning welfare facilities and to prevent access by any unauthorised person, and the construction phase plan, for which liability is unrestricted'.

Turning this into plain English in not easy but by way of explanation:

  • Part 2 of the Regulations relates to general management duties applying to construction sites. With some minor exceptions there is only an actionable duty here only to employees. (We will deal with definitions below).
  • Part 3 imposes additional duties where a project is notifiable. Again, with some minor exceptions, breach of these duties gives a right of action only to employees.
  • Part 4 (Regulations 26 '“ 44) concerns duties relating to health and safety on construction sites. Here liability for breach of duty is general and not confined to employees but extends to all those working on the site.
  • Breach of Schedule 2 '“ which deals with welfare facilities '“ can give rise to a general duty of care.

The specific duties in Part 2 and 3 which can give rise to general civil liability are:

  • 9(2) '“ A duty on the 'client' to take reasonable steps to ensure that the requirements of Schedule 2 (welfare facilities) are met with.
  • 13(6) and (7) '“ A duty on the contractor not to begin work on a construction site unless reasonable steps have been taken to prevent access by unauthorised persons to that site.
  • 16 '“ A duty on the client to ensure that the construction phase does not start unless the principal contractor has complied with Regulations 23(1)(a) and 23(2) . Briefly the duty to prepare a plan to ensure the work is carried out without risk to health and safety and to ensure that plan includes measures to address risks.
  • 22(1)(c) '“ A duty on the principal contractor to ensure that the welfare facilities provided under Schedule 2 are provided throughout the construction phase.
  • 22(1)(l) '“ A duty on the principal contractor to take reasonable steps to prevent access by unauthorised persons to the construction site.

An extension of civil liability

It may not be wholly clear from the wording of regulations but this represents an extension of civil liability. Breach of the 1996 regulations always gave rise to civil liability. Breach of the more general duties imposed by the other regulations did not give rise to liability, however these have now been extended to include a duty to employees.

Part 4: Who owes the duty of care?

For the most part litigators wishing to explore the issue of liability will look at Part 4 (Regulations 26 '“ 44):

  • 25(1) which imposes a duty on any carrying out construction work to comply with Regulations 26 to 44. Insofar as they affect him or any person carrying him or any person carrying out construction work under his control or relate to matters within his control.
  • 25(2) which imposes a duty on every person who controls the way in which any construction work is carried out by a person at work to comply with the Regulations of 26 to 44. Again this matters to matters which are within his control.
  • 25(3) imposes a duty on every person at work on construction work under the control of another person to report to that person any defect of which he is aware which may endanger the health and safety of himself or another person (Note that breach of this duty does not give rise to civil liability).
  • 25(4) states that 25(1) and (2) does not apply to Regulation 33 (reports of inspections) since that the regulation states specifically who is owed the duty.

Detailed knowledge of the regulations

Having established that breach can give rise to civil liability it is worthwhile reminding ourselves why it is important to have a detailed knowledge of the regulations.

Breach of statutory duty is fundamentally different from the issue of negligence since it can occur with absolutely no fault at all on the part of the employer, or that person owing the duty of care.

This was emphasised in Larner v British Steel [1993] 4 All ER 102: 'The issue of negligence requires a very different approach from the issue of breach of statutory duty. To make good a claim in negligence, the onus is on the plaintiff to establish matters such as the foreseeability of the damage resulting from a breach of the duty of care. To make good a claim for statutory duty under s29(1) of the Factories Act 1961 the plaintiff has to allege and prove injury while and in consequence of working at a place at which he has to work and that such place was not made or kept safe for him.'

Similarly, in Smith v Cammell Laird & Co [1940] AC 242, Lord Atkin stated: 'It is precisely the absolute obligation imposed by statute to perform or forebear from performing a specified activity that a breach of statutory duty differs from the obligation imposed by common law, which is to take reasonable care to avoid injuring another.'

In Koonjul v Thameslink Healthcare Services [2000] PIQR P123 CA Hale LJ was considering the question of risk in relation to a manual handling case: 'For my part, I am quite prepared to accept those statements as to the level of risk which is required to bring the case within the obligations of Regulation 4; that there must be a real risk, a foreseeable possibility of injury; certainly nothing approaching a probability. I am also prepared to accept that, in making an assessment of whether there is such a risk of injury, the employer is not entitled to assume that all his employees will on occasions behave with full and proper concern for their own safety.

I accept that the purpose of regulations such as these is indeed to place upon employers obligations to look after their employees' safety which they might not otherwise have had.'

The most apposite example in relation to a construction site arises in Nixon v Chanceoption Developments Limited [2002] EWCA Civ 558, where a labourer on a building site fell off scaffolding and into the building he was working on. The judge at first instance dismissed his claim on the grounds that he was actually blown by the wind from the scaffold and that he was the author of his own misfortune by venturing out onto the scaffold when it was windy.

The Court of Appeal emphatically overturned that decision. Sedley LJ observed that there were manifold breaches of the regulations (including the duty to fence the scaffolding) and: 'Inexplicably, the judgment has overlooked the uncontested fact that the respondents were in breach of statutory duty. Had that been taken into account from the start, as it should have been, it seems to me that the judge would have had to hold the respondents liable.'

Ward LJ stated: 'In concentrating on why the claimant fell off the scaffolding, the judge lost sight of the fact that he did fail. He would not have fallen in had been there been guard-rails to prevent this very happening. The place where he was working was not safe. There were, therefore, a series of breaches of the construction regulations . . . liability is established accordingly. Those regulations were there to protect the claimant from the folly which the judge was inclined to think made him the author of his own misfortune.'

In brief

  • Breaches of Part 2 and 3 of the regulations, in general, only gives rise to an action by an employee of the party in breach.
  • Part 4 of the regulations imposes a more general duty.
  • There are some important exceptions which need to be examined in detail.

Structure of the regulations

  • Part 1 deals with citation, commencement, interpretation and application.
  • Part 2 deals with general management duties applying to construction projects.
  • Part 3 deals with additional duties where a construction project is notifiable.
  • Part 4 deals with general duties relating to health and safety on construction sites.
  • Part 5 deals with civil liability, enforcement in respect of fire, transitional provisions, revocations and amendments.