News & Updates
COVID and Construction Designers
In the flurry of activity that is the precursor to construction sites (at some point) coming back into operation, it’s not just contractors that need to assess and manage health risks. Designers are in the mix too and, of course, the outcomes of all this may well have implications for clients.
The construction industry is now beginning to focus more on the process of opening sites back up (rather than closing them down). This includes looking at how social distancing can be maintained at all times, from leaving the house to go to work all the way through to returning again (and possibly also overnight if personnel need to work away from home).
It is important to keep in mind that 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.
Regulation 9(2) of the CDM Regs says:
“When preparing or modifying a design the designer must take into account the general principles of prevention and any pre-construction information 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 …”
It is important to note that the 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 all completed designs and revise them to take into consideration health risks that are now foreseeable in light of the current Corona Virus outbreak.
Modifying a design
What constitutes “modifying” is not defined in either the CDM Regs or the accompanying guidance from the HSE. It may, however, be prudent to assume that any change, or addition of further detail, to an earlier iteration of a design would be deemed a modification.
The provision of post-contract production information drawings is, therefore, likely to trigger application of the Regulation 9(2). It is also possible that the provision of design details for particular elements of the building that simply explain previously supplied design information could be classed as modification.
Management of foreseeable risks – the what
Scientific research into the exact mechanics of transmission of the virus is ongoing and so it may well be the case that the health protection guidance we are working to currently may change over time. At present, however, the key precautions of particular relevance in construction would appear to be the maintenance of 2 metre distancing and avoiding multiple contacts with common surfaces.
Compliance with the CDM Regs, therefore, is likely to involve designers producing designs that eliminate, as far as reasonably possible, the need for:
a) personnel to be within 2 metres of each other during construction operations; and
b) materials to be handled by different personnel during the construction process.
Designs that require 2 or more people to be in close proximity with each other in order to be effected will, therefore, need to be, at least, reviewed to see if an alternative approach to how the work is to be carried out could be adopted. The use of large heavy lintels that cannot be safely lifted in to place by a single operative is one obvious example.
Of course, the Contractor has to comply with the CDM Regs in the performance of the construction operations and so may also have to make changes to their methods of construction. We wrote an article about this which can be found here.
Management of foreseeable risks – the when
While it is arguable that the implications for and impact upon construction operations arising out of the current public health emergency were not previously foreseeable (prior to the beginning of this year, at least), the health risks relating to construction operations arising out of that emergency are certainly foreseeable now. Management of those risks definitely needs to be borne in mind by clients, contractors and designers going forward.
Exactly at what point over the last few months, designers in particular should have started factoring in social distancing etc. considerations to their design work will come down to the particular facts and circumstances of each case. The risk of a claim against a designer for failing to manage such risks within designs early enough is, however, a separate (legal liability) risk that designers may need to consider managing through a pro-active review of design work produced over the last few months.
Costs and the Client
If, after a design review takes place, the need arises for a move away from the design originally proposed, this may well have a cost and time implication.
In design and build contracts, such implications may (under the strict terms of the contract at least) fall to the contractor to absorb. The position under traditionally procured contracts is, however, likely to be that this is something the Client will need to take on. Either way, the likelihood is that there will be further contractual implications (this time, through the design development process) arising out of the COVID outbreak. We touched on contractual implications arising out of the need to make changes to on-site operations in one of our earlier articles that can be found here.
Crucially, Clients need to be aware that they are under a statutory obligation under Regulation 4 of the CDM Regs to make suitable arrangements for managing a project including the allocation of time and other resources. Arrangements are “suitable” if they ensure that the construction work can be carried out, so far as is reasonably practicable, 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 for time or resourcing reasons may well, therefore, be in breach of their statutory duties.
Consequently, therefore, it’s not just contractors that have work to do as we gear up for (at some point) getting construction sites back into operation.
The information contained in this newsletter is for general guidance only and represents our understanding of relevant law and practice as at May 2020. Wright, Johnston & Mackenzie LLP cannot be held responsible for any action taken or not taken in reliance upon the contents. Specific advice should be taken on any individual matter. Transmissions to or from our email system and calls to or from our offices may be monitored and/or recorded for regulatory purposes. Authorised and regulated by the Financial Conduct Authority. Registered office: 302 St Vincent Street, Glasgow, G2 5RZ. A limited liability partnership registered in Scotland, number SO 300336.