Personal appointments may unwittingly expose individuals to liability
In April 2015 the Construction (Design and Management) Regulations 2015 introduced the client appointed Principal Designer (CDM-PD) to replace the Coordinator (CDM-C) role.
The new CDM-PD has oversight of action to avoid health and safety risk during the design and preparatory phase of a construction project. CDM 2015 Regulation 5 requires that the project client must:
“appoint in writing a designer with control over the pre-construction phase as principal designer”
The appointed CDM-PD must plan, manage and monitor the pre-construction phase and coordinate matters relating to health and safety during the pre-construction phase so that the project is carried out without risks to health or safety. These are new and onerous duties.
The CDM-PD must be a ‘designer’ and is required to possess the necessary skills, knowledge, experience to discharge the CDM-PD responsibilities. Where the CDM-PD is an organisation the regulations state that the PD must also possess the necessary organisational capabilities.
So who IS the Principal Designer?
The regulations allow that the CDM-PD can be a ‘real’ person or a corporate body. The identity of the project CDM-PD can be found in either or both of the following documents:
- Written Appointment – the client must appoint the CDM-PD in writing. This written appointment will show who has been appointed with the associated legal responsibilities and potential exposure to HSE enforcement; and
- Project Notification – in addition to the written appointment the CDM-PD will be named in the project notification sent to HSE regarding notifiable projects.
The skills, knowledge, experience and organisational capability (SKEC) required of the CDM-PD do not need to reside in one ‘real’ person or one corporate body. Both types of CDM-PD can bring in any additional SKEC required to discharge the duties on a particular project.
Liability of individuals
The above issues have real practical importance.
It is vital that there clarity regarding the identity of the CDM-PD appointment because the function comes with demanding duties and potential liabilities. In our experience some individuals erroneously believe they are appointed as a person when it is in fact a corporate appointment, and vice-versa
Individuals (‘real’ people) who accept appointment as CDM-PD must be aware that they are personally responsible for delivery of the CDM-PD responsibilities and potentially liable to HSE enforcement as an individual, including legal proceedings, in the event of non-compliance.
‘Real’ people should therefore think carefully before accepting appointment as CDM-PD. Caveat emptor!