‘Investigation’ fixes health and safety liability

[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;
http://www.buildsafe.co.za/Login.aspx?RetURL=SafetyAlerts.aspx

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;

Incident causes
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.

Incident prevention
[] 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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Edmond Furter

Editor at Sheqafrica.com
Edmond Furter is the editor of Sheqafrica.com. He is a freelance technical journalist, and has won six journalism awards. He specialises in industrial, business, and cultural content in web, journal, and book formats.

7 thoughts on “‘Investigation’ fixes health and safety liability

  1. Nice pick up on the falsework designer’s duties Edmond. Something BuildSafe omitted on their broadsheet.
    Another aspect where I felt there was a shortcoming , and I communicated as such to BuildSafe, was the Designer’s Duties (6), specifically (my comments in brackets)
    (c) before the contract is put out to tender, make available in a report to the client—
    (i) all relevant health and safety information about the design of the relevant structure that may affect the pricing of the construction work; (which would include the necessity of through propping)
    (iii) the loading that the structure is designed to withstand; (including construction loading
    (d) inform the client in writing of any known or anticipated dangers or hazards relating to the construction work, and make available all relevant information required for the safe execution of the work upon being designed or when the design is subsequently altered; (again, the capacity of the incomplete structure to take construction loads)
    Of course, the Agent, who should have been appointed at the concept stage would have checked that such instructions were available as part of the Tender documentation, including the H&S Specification, which in turn would require the Agent to have an engineering background – or many years of experience!
    Also part of the Designer’s duties is (g) when mandated by the client to do so, carry out the necessary inspections at appropriate stages to verify that the construction of the relevant structure is carried out in accordance with his design: (which would include the application of temporary loads to the incomplete structure)
    Here again the Agent may get called in to play if the Designer doesn’t have the mandate to do the inspections – adding more to my argument that an Agent needs to have an engineering background.
    So, as an academic debate, would the solution be for ECSA, rather than SACPCMP, to have control over the validation of CHS Agents,?

    ==== Editor responds; I thought at first that engineers would line up to register as Agents, but the law and the scheme that it legitimises is not as simple as it appears. Engineers want Health and Safety Agents, ideally consutants, to cover their liability.
    We would have to cover ourselves by meticulous records of our reports to managers, and ensure supervision by competent line management of high risk functions (we all know when and where these take place), and avoid acting as direct supervisors.
    They want your ass in the concrete, best cover it.

  2. I tend to agree with Richard that Construction Safety is an engineering discipline and should rather fall under ECSA than the SACPCMP. Agents or “Engineers and Employer Representatives” as referred to in FIDIC, GCC, JBCC and NEC3 contracts are normally fully responsible for Design if the design is done by the “employer”. Unless a D&B(Yellow book) Project, the onus always rests with the engineer to ensure the design is adequate.
    If looking at the Scope of services of the Agents, the number of H&S people having the DRM expertise, and accepting their duties as “clients” as referred to in Construction regulation 5(5)” where such an appointment is made the duties that are imposed by these Regulations upon a client, apply as far as reasonably practicable to the agent so appointed” are extremely limited. It is thus only sensible that the Agent will be the engineer or consulting engineering firm for that matter.

  3. And HOW, I ask you, will the Professional Construction Health and Safety Agent do the structral inspection part, in 2.2.7 in the SACPCMP Scope of Services for Agents;

    “Inspect the structure on behalf of the Client/Owner once every six (6) months for the first two (2) years on completion of the structure, and then yearly thereafter, to ensure the structure remains safe for continued use, and records are kept of such in the structures health and safety file.”

    Could any “structural engineers” answer this one? Yes, right, I know it is only if so mandated. But a Client will commit suicide if he appoints a H&S Agent for this function, so why not just remove it from the document?

    Then next collapse will be for your book!!! Hope you all have profesisonal indemnity indusurance (PII) to cover your career.

    This clearly indicates that the competency of the Agent borders on engineering rather than file paralysis.

  4. Have to agree, that function borders on engineering, but they cannot do the health, and possibly to a lessor extent environmental control requirements.

    About insurance, well in one of my letters I did mention Professional Indemnity. I started my application, but how much is enough? The application does not include design, this is for engineers (I am not an engineer). Plus the role of an Agent seems to have changed from the client’s bodyguard, to accountability.
    I have written my own standard contract with exclusions, reasons are numerous. An agent in my opinion should not leave the worksite, as “anything” happen e.g. a slight change in the approved procedure may, may equal a couple of deaths. Thus the Agent should only be liable when he is there, and starting at the “end of the day” when he submits his report. His scope of authority must be obvious – he must be able to stop work if necessary.
    As there are numerous shortfalls, without an established contract, what do we do? Cover your arse, the cost of accountability will increase; what is the going rate? e.g. HPCSA cost I believe is for us chaps up to R1700 per hour, 9 hour day, equals over R14000.
    When or if we go on to the next job, we cannot be held accountable if not there, the client must see this as a rule. Otherwise being there 100% of the time as the clients representative. Regards, Shane

  5. Regarding the Section 32 inquiry, the DOL will be making a huge mistake if they investigate the Thongahi Mall collapse incident according to the 2014 Construction Regulations Amendment. The incident occurred in November 2013 and it needs to be investigated and assessed against the regulations in force at the time of the incident.
    This means that any contravention of the new Regulations would be irrelevant, as it did not constitute a criminal offence at the time.
    I also think the inquiry is taking far too long. It could have been resolved months ago! The DOL seems to miss the point in trying to find the root cause, instead of finding the contravention of the law and to prosecute accordingly. But the taxpayers have lots of money, let’s waste it.

  6. I see we have a nice robust discussion progressing around the appointment of H&S Agents. I am one of the engineers queuing up for registration, but as an independent consultant.
    Shane, if you are struggling with professional indemnity (PI) insurance, change brokers. They must wake up to their client’s needs. Is it not also something that SACPCMP should facilitate, if they are not already doing so? I, too, include a limitation of liability clause in my documentation!

    I would also like to stir the pot about the quoted statement from Master Builders; “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”.

    Could anyone explain why the JBCC takes what is tantamount to an illegal position? In terms of the Construction Regulations, the Client has to ensure that the Contractor has made adequate provision for H&S, yet the March 2014 JBCC makes no reference to H&S, nor is there a line item in the standard bill for any H&S measures, without which the Client is unable to verify if adequate provision has been made – thus exposing the Client to charges by the Derpatment of Labour! Have the appointed H&S Agents highlighted this shortcoming to their Clients, or am I missing something here?

    Also, does the role or label of ‘Principal Agent’ bypass the appointment of a Construction Project Manager, whose registration with SACPCMP is a regulated requirement? Although that person may not be getting hands dirty in the rough and tumble of construction, surely coordinating the activities of numerous contractors is the role of the Principal Contractor, if that person is not a construction project manager. They have to be one or the other, imho.

  7. With reference to the JBCC Agreement version 6.1, (March 2014) and all other forms of contract for that matter I have to stress the importance of READING the clauses in the standard documents. The choice of contract is greatly dependent on the position of risk and the responsibility for the design function. The JBCC by default is a “design by employer” contract. The employer carries the full responsibility as “client” in the construction regulations and has to ensure the “designer” (Normally the architect) is properly informed about the requirements of regulation 6 and the “Report” required regarding “additional costs”.
    Regardless of the form of contract, there are “special conditions” which must be used to add “line items for H&S” specifically related to the BoQ. For general H&S expenses, provision must be made in the P&G’s of the contract documents.
    The H&S specification must be referred to and included in the contract, as well as the design risk report related to costs identified by the designer.
    To date I have yet to find a tender document fully compliant with the new regulations, and even less so in the case of Government contracts.
    The biggest issue with the standard forms of contract is the assumption that all are the same. As the standard clauses are only referenced in the tender documents each and every construction company should ensure they have the latest additions of these documents.
    However, it is noted that most PC’s are still working on the older version of the JBCC as the 6.1 version has removed the forfeiture of claims.
    Regarding reference to H&S, only the GCC 2010 refers to the appointment of a H&S consultant. None of the other forms have any specific reference to H&S, nor are the terms used in the contracts aligned to the definitions in the construction regulations.
    The general clause related to H&S is that the contractor must comply with the relevant legislation, regulations and by-laws.
    It is thus up to the agent preparing the “contract data” to ensure the H&S requirements are included in the Optional clauses. Reference should by made to SANS 294 in preparing tender documents.
    One must keep in mind that FIDIC, GCC and NEC3 were not written for SA exclusively, whilst the JBCC is SA based but only for buildings and not ideal for EPC or ECW projects

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