Vicarious liability and Independent Contractors
All employers are held vicariously liable for the acts of their employees while they are carrying out their usual employment. If for instance an employee working in the construction industry causes harm to another employee, a member of the general public or another worker in the form of an independent contractor then the employer will be held vicariously liable for the damage caused.
If the individual who has caused the damage was in fact an independent contractor and was not an employee that that individual will be held liable for the damage caused.
This is a distinction which is particularly important when looking at the construction industry.
The Construction (Design and Management) Regulations 2007
The Construction (Design and Management) Regulations or CDM Regulations came into force in April 2007 and bring together the previous 1994 CDM Regulations and the Construction (Health, Safety and Welfare) Regulations 1996 under the same regulatory package.
Definitions Under the CDM Regulations
The CDM Regulations initially provide definitions of the parties which are involved in the construction industry. They are as follows:
- CDM Coordinators
- Principal Contractor
A client is defined as the following as the person who in the course of furtherance of a business:
Seeks or accepts the services of another which may be used in the carrying out of a project for him/her
Carries out a projects by himself/herself
The CDM coordinator is the clients adviser to all matters that are concerned with Health and Safety. He must ensure compliance with the requisite sections of the CDM Regulations 2007.
The contractor is defined in the CDM regulations as the person who carries out or manages the construction work.
The designer is defined in the CDM Regulations as the person who prepares of modifies the design or arranges another to do so.
The principal contractor is responsible for all contractors and workers on the site and is required to monitor all contractors.
Approved Code of Practice
The CDM Regulations 2007 are supported by an Approved Code of Practice and industry approved guidance. The Health and Safety executive also produces guidance which outlines the fact that one third of all death’s occurring in the workplace happen in the construction industry. It is therefore imperative that the CDM Regulations are in place and followed by everyone involved in the industry.
General Duties applying to all Construction Projects
Part 2 of the CDM Regulations sets out a specific list of duties which shall apply to all construction projects. They are as follows, but not limited to the following:
- Competence – each CDM Coordinator, designer, contractor or principal contractor will be appointed without reasonable steps being taken to ensure he is competent
- Cooperation – each individual on the site should enlist the full cooperation of those other individuals who are necessary for him to fully complete his task
- Coordination – activities will be coordinated as is necessary to ensure the requisite health and safety protection of those involved
- Prevention – the proper design, planning and preparation of a project shall take into account all possible theories of prevention
- Information – every person designing the structure and contractors appointed by the client will be provided with the requisite pre-construction information.
Notifiable to the Health and Safety Executive
Part 3 of the CDM Regulations 2007 imposes further duties on clients, designers and contractors where the construction project is one which requires notification to the Health and Safety Executive.
Notification is required on all projects which are likely to last longer than 30 days or involve more than 500 person days of construction work.
What is meant by a Person Day?
A person day is defined as one individual which can include a supervisor or a specialist carrying out construction work for one normal shift.
Obligations for Notifiable Projects
For a project that is notifiable the following obligations must be adhered to:
- A competent CDM Coordinator and principal contractor must be appointed
- The principal contractor must develop a suitable health and safety plan before any work can commence
- The principal contractor must ensure that the health and safety file is made available for inspection following construction and delivered to the client
- The CDM Coordinator must coordinate all health and safety aspects of the project in relation to the production of the plan, the delivery to the client and ensuring that all designers comply with health and safety duties, are competent and co-ordinate with each other
- The principal contractor must take over the Health and Safety file ensuring that it is complied with and that all of the contractors coordinate with each other on the project to ensuring the required health and safety.
Health and Safety Plan
The Health and Safety Plan should be developed prior to construction and should detail the following:
- Description of the project – drawings of plans, descriptions of materials used
- Outline of health and safety issues
- Details of provisions made for the welfare of the people working on the project