Structural inspections – When are owners liable?

The impact of a dam wall collapse.
Rudy Maritz unpacks the legal duties of building owners towards structural inspection.

Rudy Maritz unpacks the legal duties of building owners towards structural inspection.

Structural Inspections are the duty of owners in terms of the Construction Regulation (CR) 11(2), under the Occupational Health and Safety Act. The regulation places three duties on owners, regarding structural inspections.

Structural inspections have to be carried out at least every 6 months within the first two years, and annually thereafter, to ensure the structure is safe for continued use.

The second duty is to maintain the structure in such a manner that it remains safe for continued use. The third duty is to keep records of each structural inspection and any maintenance carried out on the structure.

There is often debate surrounding structural inspection duties, mainly caused by the definition of a ‘structure’ in Regulation 1 of the Construction Regulations 2014. In terms of this definition, a building is also a structure.

But the definition also groups structures into three distinct groups. The first group has 22 types of structures, as discussed below.

Buildings require structural inspections

Buildings are defined in Section 1 of the Act as:

  1. any structure attached to the soil;
  2. building or such structure or part thereof which is in the process of being erected; or
  3. any prefabricated building or structure not attached to the soil.

If we compare the two definitions, it is clear that “buildings” are “structures” and “structures” include “buildings”, whether they are attached to the soil or not.

And the last item in the (a) part of the definition of structure, is “any other similar structure”. So if it looks like a building, tower, crane, pipe or cable, is also a structure?

Does the Construction Regulations now require all houses, office complexes and blocks of flats to be inspected?

The lawmaker cannot list everything, so they had to list a few examples and then include other items that may have been left out, under “similar structures”.

A rule for interpreting statutes referred to as “ejusdem generis” (aka “aeus dem generis”) allows for assuming that a general term describing a list of specific terms denotes other things that are like the specific elements.

This is good news for structural engineers and salespeople of “Structural Inspection Services”. The is a killing to be made from owners of structures!

But hold on to your business cards and address books, and let us look at this within the spirit of the law.

What is the intended result required, or the Intention of the law?

In short, the law wants a Built Environment that is safe and free of hazards to health. If you own a structure, regardless of where it is listed, you have the three duties mentioned above.

Duties of house owners?

The intention of the OHS Act and its set of regulations, including CR 11(2) has three main aims:

  1. to provide regulation for the health and safety of persons at work,
  2. to provide regulation for the health and safety of persons in connection with the use of plant and machinery, and
  3. to provide regulation for the protection of the public against hazards to health and safety arising out of or in connection with business activities.

It is clear that ‘structures’ the Construction Regulations refer to, would not include non-commercial or domestic buildings such as houses and garden walls if:

  • There is no, or very little employment taking place where the structural integrity of the building would affect the safety and health of employees.
  • There are no plant and machinery used for the purposes of running a business, and
  • There are no activities or operation where the integrity of the building would become a public safety or health risk.

Should any of the above statements not apply, then the duty of structural inspections and maintenance will fall away regardless of the type of structure.

I recall an incident I investigated years back, where the local authority dug a trench on the pavement and the wall of the house collapsed onto one of the workers.

This was before the Construction Regulations, but even if it happened after 2003, the owner of the house had no legal duty under the CR’s to ensure that the wall remained safe for continued use.

The local authority however, would surely be liable for causing the uncontrolled collapse of the wall as a structure in CR11(1)(a).

Shopping centres, game and theme parks, and large public buildings

These type of buildings fall well within the intention of the law, as the activity involves the public; and any structural failure would result in fatalities and injuries.

Public Infrastructure such as dams, reservoirs, water and sewerage works, power stations, communication masts and towers, would also fall within the ambit of the OHS Act. But the mast of an amateur radio operator (HAM radio) would be excluded, as there is no “public” or commercial benefit.

Crane crashed through Golden Walk Mall roof – Pictures

Roads, bridges, earth retaining structures

Once again, the public interest is largely affected by the conditions of roads, the bridges and the retaining walls next to roads. These structures must be inspected and maintained as provided for in the Construction Regulations.

The important aspect for the “owner” of a structure to keep in mind, is the “RISK” the structure poses to employees, contractors and the public.

If there is a risk arising from the use or occupancy of the structure, the owner has to “inspect and maintain”.

The second part of the problem is “when” does the inspection program start?

The regulation is not clear on when these inspections must begin. It only states that it must be done at least every six months for the first 2 years, and annually thereafter.

The regulation is however clear on the purpose of the structural inspections and maintenance. It refers to the continued safe use of the structure.

In other words, the 6 monthly inspection shall start once the structure or building is put to use or occupied. During construction, the “owner” is not the owner yet. The site and the works belong to the construction company, and ownership is only transferred upon partial or final completion.

As there is no duty on the “contractor” to perform inspections and maintenance, this should further aid in the intention of the law.

In this regard it is also advisable to make sure the latent defects liability period in the construction contract includes at least the first two years of the lifespan of a structure, to co-incide with the requirements of the regulations.

Construction structures

The second group of structures are any falsework, scaffold or other structure designed or used to provide support or means of access during construction work.

The key phrase here is “during construction”. After construction or removal of the falsework, the duty to inspect and maintain falls away.

It is also worth noting that these structures are regulated by their own set of rules in CR 12 and 16. These structures therefore do not fall within the ambit of CR 11(2).

Plant and equipment as Structures

The third group are any fixed plant in respect of construction work, which includes installation, commissioning, decommissioning or dismantling; and where any construction work involves a risk of a person falling.

Both these two groups of structures are excluded from the requirement of Structural inspections and Maintenance by the owner under Regulation 11, as both are used “during construction” where the owner has no “ownership” and there is no “continued use” after construction.

It could however impose a duty on the owner of a tower crane, formwork, or scaffold components, to inspect and maintain it safe for use on the next construction project. Another aspect to consider is Section 10 of the Act itself.

But there are more specific requirements under the Driven Machinery Regulations 18, LEPC regulations and SANS 10085 in respect of these items.

Note the provisionary exclusion of fixed plant from structures. Only where there is a “risk of falling” (defined as a “fall risk”), does fixed plant become a Structure under the definition. Even here, fall protection and rope access regulations should take precedence.

Competence requirements for performing structural inspections

When performing structural inspections, the person doing so must be competent as prescribed in the Construction Regulations.

Recently, this requirement has caused a few “over-the-top” demands from H&S Agents, in particular to scaffolding and formwork. Some insisted that a structural engineer should perform these inspections.

In this regard it is important to look at the nature of the structure, and the purpose of the inspection. Getting a structural engineer to inspect a 6 meter scaffold around a column is asking too much.

But when the foundation of a 55 meter tower is cracking, the level of competence required is much higher.

Structural inspection conclusion

The Duties of owners of structures are clear and easy to follow. The only issue is in interpreting the definition of “structure”, when ambiguity and impracticability may become points of argument.

My opinion is that the individually listed items are not intended to separate things, but to create an inclusive list of similar structures. It is the duty of the owner of the structure to make an assessment of the assets that would require periodic structural inspections, and to consult a competent person.

Owners of structures and construction clients must note their general duty under the OHS Act and common law. When a site has been handed over to a contractor, it does not relieve the owner or client from their duties to ensure that the works are safe and free of health risks.

The duty to ensure the contractor does everything according to the book and specifications, remains with the owner.

  • Rudy Maritz is the MD of Cygma Group, incorporating Cygma SHEQ SA (Pty) Ltd.











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2 Comments on "Structural inspections – When are owners liable?"

  1. Andries Ebersohn | 28 March 2017 at 10:21 |

    Will the same principles apply for any structure on a mining site. Which falls under the Mine Health and Safety act?

    • In the Mining Sector, the MHSA is the primary Act and needs to be read before we look at the OHSAct.
      Section 103 of the MHSA states that the OHS Act shall not apply where a provision of the MHSA is applicable. In the absence of such a provision, such as Inspection of Structures, the OHSAct shall apply.
      Section 1(3) of the OHSAct states it shall not apply to a mine unless the MHSA provides otherwise.
      So, the answer is yes, the same principles applies to structures on mines.
      The general duties of employers in both Acts, states that a safe and healthy work environment must be provided and maintained.

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