The CDM Regulations 2015

The Construction (Design and Management) Regulations 2007 were replaced by the Construction (Design and Management) Regulations 2015 (“the CDM Regulations”) on 6 April 2015 subject to some transitional provisions. The CDM Regulations set out the health and safety responsibilities in any construction project. We consider the changes and the steps to take to minimise the potential risks.

What are the main changes?

• The CDM Co-ordinator is being replaced by “Principal Designer” for the identification, planning, managing, monitoring and co-ordination of pre-construction health and safety. The Health and Safely Executive (“HSE”) has clarified that “the overarching duty of the Principal Designer to plan, manage, monitor and co-ordinate is…qualified by the standard ‘as far as is reasonably practicable’.”
• A “Principal Designer” and “Principal Contractor” are required on all projects where there is more than one contractor. Until these appointments have been made, the client will take on the functions.
• All projects must have a written construction phase plan, including smaller domestic projects.
• Project notifications are now only required for projects lasting more than 500 person days, or lasting more than 30 days with more than 20 workers simultaneously.
• Non-domestic clients are now responsible for some duties previously carried out by the CDM Co-ordinator such as ensuring that construction work is carried out without risk to the health and safety of workers. This duty does not fall under the remit of the Principal Designer.
• Provision has been made for how appointments must be made during the transitional period running from 6 April to 6 October 2015.

Risks for insurers

The Principal Designer role will almost always fall to the lead designer: most likely the architect. Whilst architects do not have to accept the role, it is likely to make commercial sense to do so. The creation of a new role will inevitably widen the scope of their responsibilities and therefore their potential liabilities. Designers will not necessarily possess the skills to undertake the role a Principal Designer is required to undertake, in particular, the health and safety elements of the role. Equally, someone currently acting as a CDM Co-ordinator is unlikely to possess the skills or training to assume design obligations so is unlikely to meet the requirements of project designer. The role can be subcontracted but remember that any liability will be assumed by the Principal Designer in the first instance leaving them to pursue their subcontractor.

How can the risks be minimised?

• Principal Designers should consider who their client is, and therefore who to whom they are assuming liability.
• Principal Designers should look to take on as much of a minimum role as allowed by the Regulations.
• Indemnities should be sought as between the designer / other parties that any health and safety obligations may be subcontracted to.
• Where a subcontractor has been delegated any of the Principal Designer’s duties, their own insurance arrangements should be scrutinised.
• Attempts should be made to limit liability contractually where possible.
• Parties should ensure that any existing standard form contracts are amended appropriately to cover the new arrangements.
• Underwriters should ask about whether the role of Principal Designer is being taken on by their insureds (particularly architects) and whether additional training is being undertaken.