[SEE A THONGATHI MALL INQUIRY UPDATE BELOW]. Employers used an internal incident investigation as an example to shift health and safety liability of OHS officers.
Thongathi Mall Inquiry questions safety officer
Parties in the Thongathi Mall collapse inquiry, presented their heads of argument in late March. A representative of the subcontractors, Ramlakhan Omprakash, said that Ismael Van Zyl, who was employed by both Gralio Precast and Rectangle Properties, was a competent safety consultant.
He said there was no evidence that the safety officer contributed to the collapse of the construction, because of his outstanding competencies.
Ian Topping, who represented Ethekwini Municipality, said that the contractor failed to comply with the provisions of the National Building Regulations, and Building Standard Act.
“Rectangle is accordingly obliged, at present date, to do all things necessary to demolish whatever remains of the mall, and then start afresh, and seek the municipality’s approval for the construction of any new structure on site,” Topping said.
A representative for the design engineer, Richard Hoal, said a conclusion was reached by all investigating engineers that a failure was caused by either a combination of the weak concrete; lack of reinforcing in the beam; failure to ensure the pile could sustain the designed pile load; and alleged deficiency in the load-carrying capacity.
A representative of the Department of Labour could not present due to other pressing matters.
Inquiry into the skills of the health and safety officer could be seen as part of the shift towards shared liability. It could also indidate that the DOL or the courts may approach the fatal incident in the context of the Construction Regulations Amendment 2014, despite the fact that it occurred before promulgation of the amendment.
Buildsafe SA alert sets liability example
An incident alert with basic facts, investigation findings, recommendations for prevention, and some of the relevant sections of the Construction Regulations, was circulated by Buildsafe SA in March 2015.
See Buildsafe SA incident alerts at;
The incident is five years old, and occurred in the Terengganu region of Eastern Malaysia (dosh.gov.my). It serves as an example of an internal incident investigation, and incidentally hot to shift blame and liability away from managers, project managers, contractors, and engineers, to health and safety practitioners, writes Edmond Furter.
The circular notes that during concrete pouring, hoisted by a mobile crane to a concentrated spot, the formwork and propping structure collapsed.
A worker fell from the fourth floor to the floor below, with the formwork and propping structures. Four others were injured. Buildsafe SA now advises its members and the public as follows;
The incident investigation revealed that:
 The risk assessment was inadequate to the specific task.
 The sub-contractor carrying out the work was not employing a safe system of work. Concrete was poured in a small area, placing extra load on support work.
 Supervision did not recognise the potential disaster.
 Inspection of formwork during the pour was lacking.
 Risk assessment must be carried out to identify hazards and reduce risk of accidents.
 There must be a safe system of work in place detailing how the work is to be carried out in a safe manner, and this should be communicated to all persons.
Health and safety law
Construction Regulation 10; Formwork and support work. “A contractor shall ensure that;
(a) formwork and support work operations are carried out under the supervision of a competent person;
(b) formwork and support work structures are adequately designed, erected, supported, braced and maintained so that they will be capable of supporting all anticipated vertical and lateral loads;
(e) equipment used in the formwork or support work structure are carefully examined and checked for suitability by a competent person, before being used;
(f) formwork and support work structures are inspected by a competent person immediately before, during and after the placement of concrete or any other imposed load.”
Employers want to share liability
The construction industry seems to be using its safety forum to advise its members how to interpret the recently amended Construction Regulations; how to conduct incident investigations; and how to write recommendations; and how to fix blame on health and safety practitioners.
The incident investigation found the risk assessment of the principal, and the safety system, and supervisor, and formwork inspector at fault. Most or even all of these may be OHS practitioner functions.
The recommendations again mention risk assessment and safety systems, and add safety communication, to illustrate that health and safety liability rests with health and safety officers.
The extract from the new Construction Regulation (CR) Amendment lists the functions of the competent person in formwork.
Elsewhere the CR lists the scope of service of the Construction Health and Safety competent person, leaving out some details of when, where, and at what level to appoint an OHS practitioner (read with definitions and exemptions), and thus leaving it somewhat open to interpretation and to contractual duties.
Case law indicates that the last inspector and supervisor at the incident site could be liable.
If health and safety law enforcement is becoming more onerous on individuals, as in SA environmental law, there is sufficient reason for managers and engineers to seek others to blame for fatalities, injuries, and health exposure incidents.
Internal investigations may serve to inform official Labour Department investigations. The scope of services of some health and safety appointees includes aspects of planning, design, procedures, equipment, supervision, inspection, and administration.
People appointed in such duties, particularly if deemed competent in those areas, are liable for incidents.
The drive to professionalise OHS practitioners thus comes into stark focus with the Buildsafe SA circular after promulgation of the Construction Regulations amendments. This focus would increase further after the SACPCMP construction OHS registration deadline of August 2015.
Health and safety professional designations list areas of service and competence. Once OHS practitioners are registered and appointed as competent and ‘professional’ in some of the functions traditionally rendered by designers, engineers, line managers, and supervisors, they are more specifically liable for typical incidents.
Designers also liable
Construction Regulation 6 requires that the designer of temporary works must ensure that;
(a) temporary works are adequately designed so that it will be capable of supporting all anticipated vertical and lateral loads that may be applied;
(b) designs of temporary works are done with close reference to the structural design drawings issued by the contractor, and in the event of any uncertainty consult the contractor;
(c) drawings and calculations pertaining to the design of temporary works are kept at the office of the temporary works designer and are made available on request by an inspector; and
(d) loads caused by the temporary works and any imposed loads are clearly indicated in the design.
The relevant form of contract would indicate who is responsible for design of the temporary works.
In a separate but related forum, Master Builders KZN advised their members on Safebuild about design liability, that “The JBCC Principal Building Agreement, and common law, are very clear… on the responsibility of design, and the contractor’s obligations to the client and principal agent. ‘The contractor shall not be responsible for the design of the works, other than the contractor’s or his subcontractors’ temporary works. The contractor shall not be responsible for the coordination of design elements.’
“Design responsibility therefore rests solely with the Client and the Client’s Agents. Should the Agent’s design be unsatisfactory, no proportion of blame can be attributed to the contractor.”
The Construction Regulations 2014 creates joint liability for health and safety, and industry wants to ‘apportion’ liability. The days when the CEO alone is charged, are coming to an end. -Edmond Furter, Sheqafrica.com
* This post is a personal view of a trend in business and health and safety practice. It is not a legal opinion, and is not intended as legal advice.
• See a lawyer’s opinion on health and safety liabilities based on duties, on Sheqafrica.com
• See a post on some of the differences between incident investigations for legal purposes (finding and individual human root cause, as championed by Difford), and for prevention purposes (finding organisational root causes), on Sheqafrica.com
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