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'Loophole' in CDM legislation sparks urgent HSE review

THE HEALTH & Safety Executive is to launch an urgent review of the Construction (Design and Management) Regulations after an Appeal Court decision uncovered a loophole which resulted in designers escaping responsibility for the work of their contractors or employees.

A drafting error has been blamed for ambiguities in the legislation after the court overturned a ruling against a designer for its part in a fatal accident at British Steel's Port Talbot works in September 1997. The court said last week that as the designer had not 'prepared' the drawings, it could not be deemed the designer.

But HSE fears the court ruling will undermine the principal of the 1994 Regulations. It wants a three month consultation to recommend changes to the legislation to avoid future legal upsets.

The review represents an embarrassing U-turn for the HSE after it said in January that there was no need to alter the Regulations despite criticisms by health and safety experts that the Regulations had been ineffective and lacked clarity (NCE 20 January) However, an HSE spokesman admitted the review could take up to a year to complete.

The ambiguity over the duties of designers highlighted by the Appeal Court ruling is the result of a drafting error in Regulation 13(2)(a) of the CDM Regulations.

Regulation 13(2)(a) places a duty on the designer to ensure that any design he 'prepares' will include adequate regard to the need to avoid foreseeable risks. But it does not say the designer is also responsible for designs prepared by any person under his control, including employees.

This was found to be at odds with Regulation 2(1) which defines a designer as someone who prepares a design or arranges for any other person under his control to prepare a design.

The decision came in a successful appeal by engineer Paul Wurth SA against a conviction for its part in a fatal accident during installation of a conveyor at British Steel's Port Talbot works in September 1997.

A worker was killed when a hinged slag conveyor fell on top of him from a badly designed latching device. Manufacturing drawings and fabrication of the device were carried out by subcontractor Universal Conveyor in accordance with design specifications provided by contractor Fairport and Wurth. The drawings were then approved by Fairport and Wurth.

At the original trial, Wurth was found guilty of failing in its duties as designer under Regulation 13(2)(a) and fined £60,000. Fairport pleaded guilty and was fined £40,000.

But the Court of Appeal overturned the decision. It said the way the Regulations were drafted meant the design was 'prepared' by the person who carried out the drawing and not by the person who specified and approved the drawing.

The court added that it was 'difficult to extract a coherent scheme from this part of the Regulations' but concluded 'the word 'prepares' in this context does not extend to the approval which (Paul Wurth) were contractually required to give'.

The HSE said the decision was contrary to the principles of CDM. Construction chief inspector Kevin Myers said: 'We must eliminate any ambiguities in the responsibilities and duties of designers and restore the position to what was intended by the Regulations and understood by the industry.'

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