Roddy Cormack

It’s important to remember the responsibilities for ensuring a safe and healthy construction site don’t rest solely with the contractors. Under the Construction (Design and Management) Regulations 2015 (the “CDM Regs”), designers are also under a statutory duty to play a role.

Under the CDM Regs, designers, when preparing or modifying a design, must take into account a hierarchy of safety principles (known as “the general principles of prevention”) to eliminate, so far as is reasonably practicable, foreseeable risks to the health or safety of any person carrying out or liable to be affected by construction work.

That obligation to take into account the general principles of prevention only kicks in when actual design work is being carried out. Essentially, therefore, a designer does not need to retrospectively open up completed designs and revise them to take into consideration health risks that are now foreseeable in light of the pandemic.

The obligation does, however, apply to designs that are still work in progress. The provision of post-contract production information drawings would, therefore, likely be covered. It is also possible that the provision of design details for particular elements of the building which simply explain previously supplied design information could fall to be covered by the obligation.

While research into the exact mechanics of transmission of coronavirus is ongoing, the health protection protocols the industry is working to may change over time. As things currently stand, however, key precautions which are especially relevant in the construction industry are: maintaining a two metre distance and avoiding multiple contacts with common surfaces.

Compliance with the CDM Regs, therefore, is likely to involve designers producing designs that, as far as reasonably possible, eliminate from the construction process: the need for personnel to be within two metres of each other during operations; and, materials being handled by different people during the construction process.

One obvious example would be the need to review whether a design that specifies the use of large heavy lintels that cannot be safely lifted in to place by a single operative is still appropriate. Could a different type of lintel be used? Is the location such that it would be possible/practicable to have the lintel lifted in to place using machinery?

If, after a design review takes place, the need for a move away from the building specification originally proposed arises, this may have implications in terms of time and costs. The question as to who (contractor, client or designer) needs to absorb these implications is likely to raise the need for careful consideration of both the contract terms and the commercial and pragmatic realities of projects in a post-COVID world.

It is, however, also important to note that commercial clients need to be aware they are under a statutory duty (again, under the CDM Regs) to make suitable arrangements for managing a project, including the allocation of time and other resources. Arrangements are deemed suitable if they ensure the construction work can be carried out without risks to the health or safety of any person affected by the project. A client refusing to accept any change to the design of a project may end up being in breach of that statutory duty.

So, in the flurry of activity that will be required to get construction sites back into operation, it’s not just contractors who have work to do.

Roddy Cormack is a legal director at Wright, Johnston & Mackenzie LLP