Ralph Harrison was fatally injured on 8 September 1997 when a conveyor which he was installing at Port Talbot Steel Works fell and crushed him. The contractor, Paul Wurth, was prosecuted under the Construction (Design and Management) Regulations. In the recent successful appeal by Wurth, the Court of Appeal revealed a large hole in the regulations.
Wurth was contracted to design, supply, install and commission plant at Port Talbot, which was to convert a waste product of the steel-making process into granulated sand. Wurth employed Fairport Engineering, who in turn employed Universal Conveyor Company to manufacture the conveyor. Universal's drawing of the machinery unhappily omitted a pin which would have locked in place the latching devices supporting the conveyor. Before manufacture, Universal had submitted the drawing for approval to Fairport, who submitted it for approval to Wurth. No one commented on the absence of this pin which would have saved Harrison's life.
The Court of Appeal found itself obliged to exonerate Wurth. In so doing they criticised both the way in which the prosecution had put the case and, more importantly, the relevant part of the regulations, from which Lord Justice Pill said it was 'difficult to extract a coherent scheme'. The tragedy which befell Harrison is precisely the sort of incident the regulations were designed to avoid, so why did the prosecution fail?
Wurth was potentially liable as the designer. Under Regulation 2 a designer can be either someone who 'prepares a design' or someone who 'arranges for any person under his control ' to do so. Regulation 13(2)(a)(i) imposes upon designers the duty to ensure that designs avoid foreseeable risks. But the Court of Appeal found the duty was not imposed upon all designers; that is the hole in the regulations. Having carefully defined the two categories of designers in Regulation 2, the 'preparers' and the 'arrangers', the duty to design so as to avoid foreseeable risks is then only placed on the first category - those who prepare a design.
The prosecution tried to persuade the court that the duty was also meant to be placed on 'arrangers'. While that may have been what the regulations wanted to achieve, the Court of Appeal concluded that was not what they said. As criminal sanctions would have been the end result, the court was understandably reluctant to construe the regulations broadly. The court rejected two further arguments aimed at showing that Wurth was a 'preparer'. First, it found that simply because the drawing bore Wurth's name and stated on its face that it owned it, that did not mean that Wurth had prepared it. Secondly, Wurth's approval of the drawing did not equate to it having prepared it.
As something of a sub-plot the court also found that even if Regulation 13(2)(a) had applied to 'arrangers', it would not have applied to Wurth. The Regulation 2 definition of 'arranger' does not include someone who arranges for someone else to do the work, and then doesn't object if they in turn ask someone else to do it for them. In other words, by subcontracting to Fairport and then allowing Fairport to sub-contract to Universal, Wurth ceased to be an 'arranger'. So, unlessit was a 'preparer', it would not be a 'designer' under the regulations.
As things stand the important Regulation 13(2)(a) duty on designers to ensure that their designs take adequate regard of the need to avoid foreseeable risks falls only on those who themselves prepare a design. It does not apply to 'arrangers', including anyone who sub-contracts the design, including an employer who has the design carried out by his employee in house.
The cdm Regulations came into force in March 1995. It has taken almost five years for this shortcoming to be revealed. The criticisms of the Court of Appeal of the lack of coherence, together with the particular lacuna they identified, make an urgent rethink essential. The hse is reported to be undertaking a review and it is to be hoped that the result will be a clarification of the duties of those responsible for the likes of Harrison. In the meantime, while the regulations are widely used, there must be some doubt as to how much they are understood.