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Justice, Certainty, Process and Substance
Last month Philip Poynter argued for a return to basics in considering CDM duties and examined the ABC&D of CDM Coordinator Duties.
This month he looks at designer duties under CDM 2007.
Justice or Certainty?
HSE has been quiet of late regarding the duties of designers under CDM. This could be about to change as three Designer Awareness Days (DADs) have just been announced for the East of England.
What are the core duties of designers under CDM 2007?
Some argue that CDM designers duties are so general and qualified as to be either unenforceable, or a alternatively, a legal minefield for the innocent.
For example, whether enough has been done in designing to avoid risk so far as is reasonably practicable (a key designer duty) is a matter of judgement. The design practice, HSE and the courts may all take different views on what is ‘reasonably practicable’ or what is allowed in ’taking due account of other relevant design considerations’.
This state of uncertainty always existed, even in the halcyon days of the highly specific Construction Regulations (Working Places) Regulations 1966. Calls now for a return to more specific regulation may well fall on deaf ears.
Also, be careful what you wish for. Specific and absolute law provides certainty but may hinder justice.
General and qualified law produces uncertainty for duty holders but can also obstruct over-zealous regulators attempts to prove non-compliance.
Process or Substance?
So how should designers get to grips with CDM 2007?
Firstly, remember that process is just as important as substance.
It is much easier for regulators to prove a lack of process to secure compliance than it is to prove that not enough was done in substance. We can always do a little more.
So, the key actions required by designers to make a valuable contribution to H&S whilst at the same time protecting their self-interest are:
- Understand what the law requires;
- Establish your own clear processes to meet each requirement;
- Check regularly that the processes are being followed and;
- Change the process if it is broken.
Designer Duties
What does this mean for designers? Once again, designer duties are really as simple as A, B, C & D.
Awareness: assess client awareness of CDM 2007 duties. If your client is not aware of his duties under CDM no design work is permitted;
Background: consider the pre-construction information provided by the client / CDM-C and use it to inform the design;
C’s X Three: check and ensure your own corporate and individual CDM competence and take positive steps to coordinate and cooperate with others and;
Design: to avoid risk by eliminating hazards, reducing risk from remaining hazards and providing sufficient information about the design or its construction / maintenance as will assist others to comply with their duties.
Conclusion
Design practices with sound processes in place to cover these four elements will not go far wrong in law and will also add value to the project.
Clients will increasingly look for evidence of design organisation competence under CDM 2007.
HSE will step up their early interventions with designers and ’track back’ to design organisations following incidents during the construction phase. Remember, there is no choice in the matter so it is better to be proactive.
A visit from the Police / HSE investigating a project fatality and exploring the role of the design organisation is not the time to be considering if you have done enough.
Use the detailed guidance in the CDM Approved Code and HSE Designer FAQs to help craft your processes but do not lose sight of the essential A, B , C & D of designer CDM duties.