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The real risks of design and build

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Legal matters

The Health and Safety at Work Act 1974 has been with us for some time. It is used to prosecute perpetrators of bad working practices, particularly on construction sites, which cause death or personal injury. Recently, however, the legislation has been used to prosecute both a client and its design-and-build contractor responsible for the construction of a high-level passenger walkway linking the terminal building with Berth 3 at the Port Ramsgate.

The walkway collapsed in September 1994, some four months after it was completed: six people died and seven were seriously injured. The Health and Safety Executive's investigation revealed a catalogue of design errors caused by a failure to appreciate the behaviour of the walkway when in use. The hse prosecuted the Swedish design-and-build contractor, the Lloyds Register of Shipping responsible for certifying the walkway, and the port owner and operator, Port Ramsgate.

After a 25-day trial at the Old Bailey, all four defendants either pleaded or were found guilty. Fines totalling over £1.5 million were imposed, together with orders to pay costs in excess of £0.5 million. As the case was a criminal prosecution, the key findings of liability were made by the jury. Although the judge, who summed up the evidence at length, gave the jury detailed guidance as to the interpretation of the statutory provisions, in the absence of a consideration of the relevant legislation by the Court of Appeal, the judge's contribution is of limited general application.

Nevertheless the case is of considerable interest to those involved in design and build, as it is the first successful prosecution brought under the Health and Safety at Work Act for latent defects. This may be seen as a departure by the hse from its existing policy not to concern itself with the structural safety of buildings, as criminal liability was imposed not only upon the design-and-build contractor but also upon those responsible for certifying the work and, perhaps most surprisingly, upon the client.

Port Ramsgate's defence centred around the fact that it had procured the works by means of a design-and-build contract and relied upon an independent certification body, Lloyds Register. It went one stage further and said that the one thing you do not do as an employer under a design-and-build contract is to start interfering in the way that the contractor does its job and that, in effect, its obligation as an employer was to do nothing.

The prosecution maintained, however, that it was incumbent upon an operator such as Port Ramsgate to have proper management systems in place to ensure that it had some control over the process of design and construction. The prosecution did not contend that the client ought to retain its own consultant to carry out safety checks. The prosecution's expert was, however, of the view that the client retains overall responsibility for the project and its safety and should ensure that the contractor has proper quality- assurance systems. Quite how this is to be achieved was not addressed in detail.

The Port Ramsgate case was an extreme example of the type of danger to public safety which the Health and Safety legislation is designed to prevent. It is perhaps not surprising, therefore, that it was used to expand the ambit of criminal liability in this way. It remains to be seen however, whether it will lead to an increase in prosecutions of this type. Regrettably, it offers little practical guidance to responsible employers, minded to procure an innovative project by means of design and build, as to how best to protect themselves from similar liability.

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