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Engineers fear that the new Construction Act could threaten site safety. This is not the case, argues Roger Sainsbury.

A fear was expressed at a recent meeting of the Standing Committee for Structural Safety that the Housing Grants Construction & Regeneration Act, which came in force on 1 May, would introduce new threats to site safety.

But providing an engineer understands the new legislation and understands his or her legal obligations and professional duties there should in reality be no difficulty in maintaining safe practice.

The particular concerns expressed within SCOSS were:

that an adjudicator, who may not be an engineer, may in an adjudication give instructions to do something unsafe, or to leave in place something unsafe. The Act states that 'the decision of the adjudicator is binding until the dispute is finally determined'.

that the Act gives a right to suspend performance in the case of non- payment and that this could lead to the abandonment of work in an unsafe condition.

On the first point, it is important to say that only an unwise adjudicator will give an instruction to carry out work on site. The Act requires an adjudicator to 'reach a decision' and if called to adjudicate upon quality of work, the wise adjudicator will do just that; he or she will give a decision on whether or not the work satisfies the contract; he will not say what should as a consequence be done.

Suppose, however, that an adjudicator decides that work is within contract, but the Engineer truly believes that it is not safe. The Engineer must exercise his professional duty and instruct that the situation be remedied.

The consequence of the adjudicator's decision is not that bad work must stay in place, but that the employer, at least in the first instance, must meet the cost of the Engineer's instruction.

But suppose again that an adjudicator gives an instruction to a contractor to do something which the Engineer acting on the contractor's behalf believes to be unsafe and over which the architect administrating the contract will not intervene. As a matter of professional duty the Engineer cannot proceed if he or she knows or believes the course of action is unsafe.

There now appears to be a legal requirement under the Act to do something which puts lives and property at risk. But more importantly there is also a clear requirement under the health and safety legislation and the CDM Regulations not to carry out the instruction.

So there can be no difficulty in the principle, and no doubt where priority must be given. The crucial point here will be for the Engineer to act sensibly, not simply to stand on the principle of the legislation.

Acting sensibly will mean seeking a second opinion to test whether one really is right. It will involve ensuring that all parties to the contract are made aware of one's misgivings and seeking support from a senior level in one's own firm. On this basis such problems are likely to be resolved.

Of course if they are not, and the Engineer truly believes there is an instruction to act in an unsafe manner, he or she cannot do so and must resign.

Some may feel that this would be an 'unfair' outcome. It would be and it is hoped that such events will not occur. But the point is that the duty with regard to safety is clear - and it cannot be said that the Act requires engineers to act in disregard of safety.

Turning to the second point of concern - regarding the fear of a contractor abandoning a job after non-payment leaving the site unsafe - what the Act actually says is clear. It points out that in certain circumstances 'the person to whom the sum is due has the right (without prejudice to any other right or remedy) to suspend performance of his obligations under the contract to the party by whom payment ought to have been made'.

Contractors of course often stop work. Typically, they stop work at about six o'clock each evening. They stop for the weekend and they stop for two weeks at Christmas. In all of those cases, however, the contractor knows that he must make the site safe before departing.

What is so different about the right to suspend performance because of non-payment? In terms of the professional duty of an engineer, there can be no difference; the site must be made safe whatever the reason for leaving it.

And the legislation does not suggest otherwise. What is given is a right to suspend performance of obligations to the party by whom payment should have been made. Presumably that will be either the employer or the main contractor.

But obligations with regard to safety are not owed simply to the other party to the contract. They are very much wider; typically they extend to the world at large. This Act therefore offers no succour to anybody who irresponsibly departs from site leaving it in an unsafe condition.

Roger Sainsbury is ICE president elect for 1998-99 and chaired the ICE working party on the Construction Act. He was also chairman of the Construction Industry Council's Construction Act Scheme task force .

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