29 August 2012

Health and safety case clarifies obligations of contractors

Contractors should take note of a recent case about health and safety obligations in the workplace that will have important implications in the Christchurch rebuild.

The case concerned a construction company which was prosecuted by the Department of Labour over an accident caused by the negligence of one of its subcontractors. The judge dismissed the charge against the construction company, which was the head contractor. Thesubcontractor had been convicted and fined earlier, having entered a guiltyplea.

Stephanie Grieve, a Duncan Cotterill litigation partner specialising in Health & Safety, defended the head contractor in the case. She said the decision clarifies the health and safety obligations of principals and head contractors and is relevant to all contracting companies who engage contractors or subcontractors.

“The decision will also have implications for project management offices (PMOs) involved in the Christchurch rebuild as recent cases indicate that the Ministry of Businesss, Innovation and Employment (formerly the Department of Labour) intends to apply duties owed by principals (and head contractors) to project managers.”

In the case, a construction company was engaged as head contractor to replace two railway bridges for the client. It subcontracted a piling specialist to help with a variety of tasks includingbuilding two temporary platforms from which work would be done on the main bridge. The piles on the second temporary platform were inadequate, causing the platform to collapse and the crane on it to topple and fall into the water.Fortunately, no-one was injured.

Grieve said the evidence was clear that the platform failed because the piling methodology used by the subcontractor was inadequate. The subcontractor was earlier convicted and fined for failing to take all practicable steps to ensure the safety of its employee (the crane driver).

The charge against the construction company, as head contractor, was dismissed following a week long hearing.

“The decision confirms that a principal or head contractor is clearly responsible for having overall control and management of the construction project, for monitoring health and safety issues and having a clear policy in place,” Grieve said.

“But the head contractor is not required to oversee the technical aspects of the work that it has contracted out, particularly if it has no expertise in that work, and those matters are within the role and expertise of the subcontractor.”

Grieve said that where a subcontractor was negligent, responsibility for that safety issue must lie with the subcontractor itself.

“The head contractor is responsible for checking the competence of subcontractors it engages and, once the project starts, for general safety onsite, but its obligations do not extend to insuring the subcontractor’s workmanship.

“The head contractor will not necessarily need to be onsite at all times, but they must regularly communicate with their subcontractors and have adequate site contact to be able to effectively monitor health and safety aspects.” she said.
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