The appointment of a Principal Designer (PD) on a construction project is a legal duty of a Client. Should the client fail to appoint a Principal Designer, the client themselves automatically takes on the role. This means that the Client must perform actions that will lead to the compliance with the Principal Designer’s duties prescribed by the regulations.
The client therefore will be required to review the health and safety aspects of the design including, but not limited to:
These are just some of the duties that the client would have to undertake should they fail to appoint a PD that are defined in the regulations as the Client’s Duties.
What is more, once relevant appointments are made, the client has a duty to ensure that the appointed Principal Contractor (PC) and Principal Designer undertake their duties. This means, that the client must understand all duty holders’ responsibilities under the regulations and carry out the following:
The clients therefore must undertake the pre-requisites to the appointments and ensure that the companies that the client will engage with, have the right competencies to perform the roles they will be appointed for.
Once the design and the construction phases commence, and if the client does not see evidence of the PD and the PC’s CDM compliance, this might be a sign of the duty holders not fulfilling their prescribed duties. In this situation, it may be likely that the project will not be compliant and therefore at risk of an accident or a safety incident happening on site with a potential HSE prosecution. It is important to understand that a prosecution does not always follow from an accident. It can also be a result of a non-compliance with the law even if nothing happens on site.
It has been reported that between the years of 2015 – 2018, there have been 95 prosecutions, resulting in fines of a total of £6.7million and eight months of imprisonment with the largest financial fine of £800,000.00 (source: https://www.haspod.com/blog/cdm/cdm-2015-prosecutions). Out of 95 breaches, nine prosecutions were under Regulation 4 (Client’s duties), one was under regulation 11 (Principal Designer’s duties) and 29 were breaches of the Principal Contractor’s duties under Regulation 13. The remaining 56 prosecutions accounted for breaches of other CDM regulations.
Considering the above, with reference to the numbers of prosecutions and parties involved, regardless who gets prosecuted and how high fines were, experiencing an accident, an unsafe incident or any type of legal action is an unwanted event on a project that no party, stakeholder or a duty holder would like to encounter.