CDM and the blame-game catastrophe
12 April 2018
What do you get when you have two company directors – one from the client company, the other from the principal contractor – each blaming the other for safety failings and having to answer to the one of the country’s top regulatory barristers? A mighty good mock trial that should make all companies and their senior staff take safety more seriously.
Gerard Forlin QC was the prosecutor in the Fire Safety Keynote Theatre yesterday afternoon (11 April), grilling the directors of client company Get Them Up As Soon As Possible Ltd (GTUASAP) and principal contractor It’ll Be Alright On The Night Ltd (IBAOTN) in the dock over safety failings on a project to construct an 11-storey building. The “court” heard how GTUASAP – an established business that prides itself on having “safety as its number-one priority” but which had only acted as a client under the Construction (Design and Management) Regulations (CDM) once before – selected, for the construction project, IBAOTN’s bid, which was the second lowest. The company that bid the lowest, it said, were “cowboys”. However, GTUASAP did not check that IBAOTN had experience of this type of work.
Following a tip-off from a member of the public, the HSE visited the site, where it found a number of safety breaches. The regulator contacted both companies, whereupon the client – GTUASAP – emailed the principal contractor – IBAOTN – to ask what was going on. The contractor replied to say it had everything under control and was “sorting it out”.
However, when the HSE returned to the site it found nothing had changed, so Prohibition and Improvement Notices were subsequently issued. Both firms were advised that should they go to court and be found guilty of safety breaches, sentencing guidelines meant they could be fined up to £1.5 million plus costs. A mutual blaming contest duly erupted between the two companies, with the client company telling the contractor: “You bid at the price, you build at the price!”
Two directors – one from each company – were summonsed and charged under section 37 of the Health and Safety at Work, etc. Act 1974. Both claimed to be office-based and said they knew nothing about what had been going on. Prosecution witnesses, however, said both directors were on site regularly and, indeed, often made life difficult.
With two volunteers from the audience acting as the directors – Mr Snodgrass of the client company GTUASAP and Mr Rodriguez of the contractor company IBAOTN – Mr Forlin began his interrogation, starting with Snodgrass.
He pointed out that profit margins are tight in construction – which Snodgrass acknowledged was true – yet GTUASAP achieved turnover of £63 million last year, with Snodgrass himself pocketing £1.9 million. He then emphasised that Snodgrass was the client under CDM and asked if he knew what that meant. Snodgrass said he did, to which Mr Forlin replied: “It means you were in charge of the entire project!”
He then asked Snodgrass how many sites in total he had been monitoring at the time, to which the reply was “12”. Asked how much time he got to spend at each one, Snodgrass said “one or two hours a week”. But Mr Forlin countered this with the witness statements, which suggested Snodgrass was actually very hands-on and was fully aware of the problems raised by the contractor. “Do you remember IBAOTN saying that they needed more resources and more time?” he asked. Snodgrass replied: “Once or twice, maybe.”
At this point, Mr Forlin asked the defendant how much research and investigation the client had carried out into the contractor before hiring them. Said Snodgrass: “That was delegated to my secretary.” Asked by Mr Forlin if this secretary had any health and safety qualifications, Snodgrass admitted he wasn’t sure. “Yet you delegated to her the responsibility for checking the competence of your principal contractor?” “Yes,” said Snodgrass.
Mr Forlin then asked Snodgrass directly whose fault he believed the situation to be, to which the defendant answered: “Our contractor’s, surely?”
At this point, said contractor, Mr Rodriguez, was called to the dock. Mr Forlin was straight in, asking him: “So, how many projects similar to this have you worked on?” When Rodriguez said his company had worked on many construction projects, Mr Forlin pointed out that “this project was 11 storeys, but you’ve never built above four storeys before, have you?!” Rodriguez claimed: “We figured we’d be able to do it.” Asked if his company was struggling, Rodriguez admitted that it had done so on this project. When Mr Forlin suggested that this was because margins were tight, Rodriguez countered with the claim that it was because the client hadn’t provided full details of the project.
Mr Forlin made much of the fact that there was no record of anything in writing from the contractor company to the client about the lack of resources or information, or about the fact that the contractor was struggling as a result. When he asked what Rodriguez had done to inform Snodgrass of the problems, all the former had to say was that he had “made him [Snodgrass] aware when he was on site”.
“You were described as cheap and cheerful,” continued Mr Forlin, to which Rodgriguez replied: “I’d prefer to say cost-effective.” “Ah yes,” retorted Mr Forlin, “but one man’s cost-effective is another man’s dangerous. The HSE described your site as shambolic!” Rodriguez agreed his company was under pressure but when it was suggested by Mr Forlin that this was because of time restrictions and time penalties, Rodriguez said: “It wasn’t down to time as such, but to a lack of information from the client. I wouldn’t put the failure on our company.”
At this point, Mr Forlin pointed out that the jury really would be wondering whose fault it was. Rodriguez, sticking to his guns that it wasn’t the contractor’s fault, said the crew on site did all it could, which invited Mr Forlin’s final, dry riposte: “Yes, well, so did the crew on the Titanic, but it was too late then, as well!”
The point of this mock trial, Mr Forlin, explained was to illustrate how a safety trial is conducted and what to expect as a defendant/witness. He emphasised, however, that today’s proceedings were only a snapshot of a real trial, pointing out that when he was a prosecutor (he works mainly on the defence side, now) he was far, far nastier. “In real life,” he said, “Snodgrass and Rodriguez would get 18 months to two years in jail. They’d lose everything.”
The key thing to remember, he told delegates, is that under the CDM Regulations, “it doesn’t matter which sector you are in, these Regulations are important. The client is the one whose job is to prove to a jury that they did everything possible and checked everything, including competence. Also, if you have a global business, what goes on in other countries affects you, and vice versa. If you send people abroad, you have to be able to prove you assessed all risks.”
He concluded by pointing out that in the last six months alone, there have been 32 prosecutions of individuals for health and safety offences. He said: “It is very difficult to get a suspended sentence now. And note that the courts are prosecuting on risk – there doesn’t have to be a fatality, or even an injury. Fines are at the level of £3 million or £4 million and going up, purely on risk. And more and more individuals are being prosecuted alongside the organisations they work for.”