This month, our legal agony aunt gets to grips with the practicalities of health and safety rules, assesses whether a client can claim against a design he didn’t even use and checks out whether you can amend a bill of quantities by simply sending a fax
Who has the final say on safety?

We have had works suspended by the planning supervisor for an apparent breach of regulations or non-conformity with Health and Safety rules. Who has responsibility for suspending or restarting a contract on safety grounds?

The Health & Safety Executive is the principal body for enforcement purposes created by the 1974 Health and Safety at Work Act and is responsible for creating inspectors in different localities to supervise larger construction projects. The act gives such inspectors the right to direct that the premises remain undisturbed until an examination or investigation is complete – inspectors thus have a direct power to stop construction until a health and safety issue is satisfactorily dealt with. In practice, inspectors may only make spot checks to ensure that

works are being conducted safely but they can respond and inspect a site if a health and safety contravention has occurred or is likely to occur.

Under the CDM Regulations the planning supervisor is responsible for overall co-ordination of health and safety issues at the design and planning phase, and must ensure that designers undertake their duties in respect of risk avoidance and risk reduction. Planning supervisors are not given any specific statutory powers to force parties to act in the event of a breach of health and safety practice on site. However, a planning supervisor would be obliged to make the employer and/or the HSE aware of any breach of the health and safety plan. A prudent employer would order an suspension of the work if the health or safety of men working on site or the general public were in any way at risk.

Contractors have the prime responsibility as employers for ensuring that safe systems of work are provided for their employees. The principal contractor is given responsibility and power under the CDM Regulations to ensure compliance with the health and safety plan, and such powers include allowing him to restrict access to authorised persons and give directions to any subcontractor. So contractors can and should order their subcontractors to stop work if they were failing to comply with the plan.

The cost of wrong roof tiles

A homeowner wanted an extension to his property. Plans were approved by local authority planning and Building Control. The designer specified roof tiles which could only be used

for 17.5 degrees or above. The roof pitch was 15 degrees. The homeowner and the builder decided to make the extension 550 mm wider than the approved drawings, reducing the roof pitch to 13-14 degrees. Building Control asked the homeowner to rectify the situation. Can

the homeowner claim against the designer for specifying the wrong tiles in the first place?

There are effectively two issues here: the incorrect specification of roof tiles by the designer; and the changes required by the local authority.

The designer contracted with the homeowner.

It is therefore the homeowner who has any right of action against the designer. The fact that the extension has not been built to the design will make a claim more difficult. The homeowner would need to establish that although the design was not used, the designer’s specification of the particular tile was relied upon by the homeowner.

In respect of the changes required by the local authority, it depends upon whether the designer’s original error is the cause of the changes required. If the local authority requires the tiles to be changed on the basis that they should only be used on roofs of a pitch of 17.5 degrees or above then a claim could still be brought.

Notwithstanding the local authority’s position, a claim could still be brought against the designer if you can show the use of these tiles is likely to lead to roof failure/excessive maintenance. Again, this would depend upon establishing that a roof pitch of 17.5 degrees is an absolute requirement.

Although the homeowner agreed to the marginal increase in the size of the extension, there may of course be an action against the builder for failing to advise the homeowner of the difficulties that could arise. In each case, the homeowner has to prove they have suffered loss.

Upping the rate

Can a rate in a re-measurable bill of quantities be amended when no contract form has been specified? A faxed order for the work is in place and in the tender quotation a clause has been included to read “should the bill quantities increase by more than 5% we reserve the right to amend the rates”.

If the clause “should the bill quantities increase by more than 5% we reserve the right to amend the rates” is included as a term of the contract, then it is likely that the rates can be amended if the bill quantities increase by more than 5%. The fact that no contract form has been specified should not be relevant. The question arises as to whether that term is a term of the contract. If the tender quotation has not been amended or rejected by the faxed order or any later correspondence, and the parties have contracted in accordance with the terms of the tender quotation, then it is likely that the term will form part of the contract and be binding on the parties.

Got a question?

If you have a query for Berwin Leighton Paisner, email legal@cmpinformation.com and we’ll pass it on. Please keep your questions as brief as possible. Replies are only based on information provided, and it is essential that you consult a solicitor before putting any advice into action.