The recent prosecution of a Canadian project manager for health and safety breaches brings into sharp focus the increasingly onerous responsibilities of those in control of construction sites.

The three-and-a-half-year jail term imposed, whilst perhaps not disproportionate to the crime, which resulted in the wholly avoidable deaths of four workers, brings the respective jurisdictions of civil and criminal law closer perhaps than they have ever been.

In both the UK and NZ, there are increasing efforts, largely through both new and repealed legislation, to enforce new and higher standards of health and safety, particularly on construction sites. With that comes a shift away from corporate responsibility to individual accountability, more rigorous prosecution and, as can be seen, harsher punishment. It also brings what was typically a civil action into the realm of criminal prosecution.

Construction of even a minor project is not a risk-free undertaking. Site managers, project managers, engineers and designers are now expected to have a role in ensuring that any construction project can be ‘reasonably’ safely constructed, blurring yet another line between the respective design and construction functions. But exactly where does the liability for workers health and safety lie?

To my mind, there is no clear answer; as ever there are the black and white examples at the extremes and a lot of grey in between.

To attempt to answer the question, I’d like to first look at what the standard forms of contract demand of the various named contract administrators, be they project managers, engineers to the contract or other such persons.

New Zealand’s standard 3910, which is similar to FIDIC, requires administration via an engineer to the contract. This engineer’s role with respect to safety is not well prescribed.

Section 6, Engineer’s Powers and Responsibilities, Clause 6.2 Role of Engineer: In four clauses and three sub-clauses, there is no direct reference to the engineer’s duties in respect of health and safety. The contract instead imposes some obligations upon the contractor in terms of H&S and control of the site, for instance: “Section 5 General Obligations, Clause 5.1.5: The Contractor shall be responsible for the adequacy, stability and safety (at last!) of all its Site operations and methods of construction…”

There is a further limited reference in Clause 5.2 to the contractor providing ‘all necessary supervision during the contract…’ which I suspect is more related to management and control than it is health and safety.

Clause 5.7 comes to the rescue of the stranded health and safety obligation and 5.71 and 5.72 require the contractor to inter alia:

• Provide and maintain a safe working environment
• Identify any significant hazards

The obligation extends to ensuring that employees and sub-contractors are not unnecessarily exposed to hazards which are under the contractor’s control, but could they by interpretation be necessarily exposed to such hazards?

These are broad brush obligations and allow room for subjective determination as to what compliance might mean. They are also obligations that have no sanction other than to cite a fundamental breach for contractual non-compliance – not really an option in most instances.

The (mostly British-used) New Engineering Contract, or Engineering and Construction Contract to use its correct name, uses a project manager and a supervisor for contract administration.

Whilst no better determined than 3910, (arguably in fact, worse) common practice has the supervisor more than the PM taking what safety role there is. This is largely due to the ‘clerk of works’ type role the supervisor takes, which sees the safety role as a natural expansion of the quality role, which is the primary function.

The contract itself says little about what the safety role is or how it should be performed. With an uncharacteristic lack of rigour, the NEC, under Clause 27.4 states: ‘The Contractor acts in accordance with the health and safety requirements stated in the Works Information.’ For the unfamiliar, the Works Information is client-supplied documentation such as specs and drawings.

Arguably, if the Works Information is absent any health and safety specific requirements, then the contractor’s obligations are curtailed accordingly, but only in respect of the contract. That though is a slightly specious argument. It is here that the law takes over and the contractor as an employer in its own right has very specific duties imposed upon it to ensure the safety of its employees, an obligation that trumps any contractual terms that may be either present or lacking.

Typically though, educated procurers will have equally rigorous requirements in the contract documents as they too are employers, and the enforcement of a client’s health and safety processes by virtue of a contract onto a contractor comprises both a visible compliance with the law and shields said employer from the potential consequences of a breach.

Thankfully, prosecutions for the type of serious harm outlined at the beginning are rare, and that poses a problem for those bodies tasked with enforcement of the legislation.

There is relatively little common law precedent to relate to given the newness of the legislation, so determining whether the prosecution is a civil or criminal one depends upon not only the severity of the injury but relates to causation. The basic difference between a civil and criminal action is that for the latter, the state prosecutes and concomitantly, one or more stated laws must, at least on the face of it, be broken. The nature of the transgression must also be such that it is an affront to society as a whole and warrants punishment rather than compensation, which is the intended outcome of civil procedures.

When then and how, does that decision get made?

In the case stated at the start, the deaths of four workers clearly meets the ‘affront to society’ test but what of say, the loss of a limb, or an eye? Typically, these remain as civil actions as case law will attest to but what of two limbs, both eyes, or permanent disability?

It is probably a fair call to say that anything short of death will remain a civil issue. An accident resulting in a death and/or deaths and the possibility of a criminal prosecution will then depend upon a detailed analysis of the events leading up to it. Typically, the state makes this determination with the aid of the police and (in the UK and in NZ) the Crown Prosecution Service.

Notwithstanding that determination though, both civil and criminal actions can run concurrently. The burden of proof for the two is different – ‘balance of probability’ and ‘beyond reasonable doubt.’ With the latter being a lower hurdle to clear than the former, it is this route most often pursued when damages are sought. The O.J. Simpson case succeeded in its civil action when the criminal one failed.

The harsh reality for the industry is that those with any influence on the health and safety of workers on a construction site don’t really know what they may be liable for and what may befall them as a consequence of any failure.  It may be minor, or it may be as extreme as incarceration and/or a hefty fine.

I’m not advocating this as inappropriate. As has been seen in failed attempts at corporate prosecution in the UK for rail accidents in the early 2000s, it is very difficult to allocate individual liability for the result of what is almost always, a chain of both causation and command.

Recent legislation attempts – not unreasonably – to do this, and in a society where we are as individuals generally held accountable for the consequences of both our acts and omissions on our ‘neighbours,’ it is hard to argue against such a stance.