Although it was concluded that the GoC was not directly or vicariously responsible for the subcontractor`s violations, the owners argued that they were entitled to compensation under the common law. They argued that gc contractually assumed exclusive responsibility and control over the entire project and had the contractual authority to (1) direct, supervise and control the means and methods of the applicant`s work; and (2) take safety precautions to protect workers. Consider the health and safety risks of all persons affected by the work (including the public) when planning and managing the measures necessary to control it. A short guide states: «You and the contractor you use have responsibilities under health and safety laws. Everyone must take the right precautions to reduce the risk of workplace hazards to employees and the public. Make sure everyone understands the role they must play in ensuring health and safety. This is not to say that responsibility for health and safety is evenly distributed. Of course, those in positions of power are expected to do more than workers. For this reason, employers generally have the greatest responsibility for health and safety. Thus, if a subcontractor does not comply with health and safety laws, the subcontractor and the prime contractor could get into trouble. The subcontractor for violation of the law. And the prime contractor, because he did not ensure that the subcontractor has implemented the legal requirements. OSHA provides safety and health regulations for the construction industry.
According to the building regulations, «the prime contractor may in no case be relieved of the overall responsibility for compliance with the requirements of this Part for all work to be performed under the contract.» Contractual relationships between different project members, including prime contractors, subcontractors, site managers and professional consultants, may assign or even transfer primary responsibility from one party to another. Under law and regulation, as well as the principles of tort (negligence), a party may be subject to certain liabilities and liabilities, regardless of how creative they have been in the language of their contract. Based on a party`s actions in the field, a party may submit to responsibility for the safety of the site, even if the wording of the contract states that it assumes no responsibility. Courts in different states hold very different positions when it comes to the liability of the planning professional for safety during construction. In Carvalho v. Toll Brothers 278 NJ Super. 451 (1995), the New Jersey court found that the contractor had the power to stop work that did not meet specifications and that the engineer was required under the common law to take action when faced with a dangerous condition of which he was actually aware. Not only does the prime contractor have the overall responsibility to ensure that construction work is carried out without risk to health or safety, but they also have more specific responsibilities with respect to the health and safety of other contractors. A Site Manager (CM) is not liable for injuries sustained by a Contractor`s employee if the Cm Contract with the Project Owner did not establish CM`s contractual responsibility for site safety and (1) the Contractor`s contract with the Owner stated that the Contractor was the controlling employer responsible for its own safety programs and precautions for its employees, and the CM`s liability did not extend to direct control or responsibility for the acts or omissions of the subcontractor and its employees; and (2) the CM has not assumed any non-contractual liability in the area that would have created a legal obligation or responsibility for the safety of all employees.
The OSHA Hazardous Waste Operations and Emergency Response Standard, 29 CFR 1910.120, requires contractors who engage hazardous waste subcontractors to inform subcontractors of the on-site emergency response and any potential fire, explosion, health, safety or other hazards from the operation of hazardous waste identified by the Employer Information Program and provide them with access to written safety and health program. The prime contractor must therefore plan, manage and supervise the construction phase of the project. Not just their own work. And they need to coordinate health and safety issues. Again, not only in their work and employees, but in all the construction work that is done on the project. Other courts have held that the mere maintenance of the power to direct, control or supervise the work that caused the damage is not a sufficient basis for holding the prime contractor liable for the subcontractor`s failures if the subcontractor did not exercise effective control over the work of its subcontractor. Therefore, in the absence of evidence of negligence or effective supervision on the part of a subcontractor, the mere power of the general contractor to supervise the work and perform the safety procedures is not a sufficient basis for imposing liability on the prime contractor or for establishing that it must compensate the contracting authority for the damage. The court noted that if the contract did not require the CM to provide safety at the site, it should not be presumed that the CM had legally assumed a safety duty of care, unless it performed specific supervisory functions that went beyond those set out in the original construction documents. A prime contractor is responsible for controlling the construction phase (if there is more than one contractor).
At this stage of a project, the prime contractor plays an important role in managing health and safety risks. The HSE stipulates that the prime contractor: Projects involving construction activities must comply with the 2015 CDM regulations. Under these regulations, health and safety obligations are divided between the responsibilities that all contractors must assume and responsibilities that are solely responsible for the prime contractor of a project. In projects with a single contractor, this person must assume the role and responsibility of the prime contractor. While there are no specific global requirements, we will study safety regulations for contractors in the construction industry in the United States, the United Kingdom, Canada, and Australia. In summary, the Occupational Health and Safety Act and the Common Law recognize the obligation for persons working on construction sites with multiple employers to identify hazards, immediately reduce or attempt to reduce those hazards, and train employees and others in the detection and prevention of hazards. If employers fail to meet their obligations to maintain a healthy and safe workplace by identifying and eliminating hazards on multi-employer construction sites, this can result in injury, illness or death, as well as liability and damage to many parties. After concluding that the CM had no contractual obligation to be safe at the site, the court then focused on whether the CM had assumed this responsibility through its actions in this area.
As noted earlier, the court found that the CM had not taken any action in favour of security measures beyond the requirements of his contract. Therefore, the CM had no responsibility due to the responsibility assumed for safety on the construction site. As the court explained, «The case should not be sacrificed on construction sites, especially in large public construction projects like this one, for fear of liability. The contract at issue in the present case reflects a way of promoting safety without exposing site managers to combinations such as this. We agree with Friedlander J. that [the plaintiff`s] position «would make it virtually impossible for a contractor to assume the role of construction manager to limit its liability so as not to become a safety insurer for workers of other contractors.» Following a request for summary judgment, the trial judge rendered a summary judgment with respect to the consultant and the electrical engineer, whom he referred to as the «design team» because he found that the limitation of liability set out in the contract did not hold them liable for the contractor`s failure to perform the contractor`s work in accordance with the specifications. The Canadian Centre for Occupational Health and Safety (CCOHS) reports on some cases where employers have been found not to protect the safety of their contractors – with fatal consequences. In response to the cross-motions for a partial summary verdict, the trial judge ruled that the CM could be held accountable on behalf of Baker Concrete`s actions that led to the plaintiff`s violations.
On appeal, the Court of Appeal overturned the Trial Court`s decision on the liability of enforcement agents and ruled that the CM was not held liable for the contractor`s security liability simply because the CM`s security officers inspected the site on a daily basis for violations of the project`s security program and held security committee meetings. In the province of British Columbia, WorkSafe BC`s prime contractor responsibilities state that on most multi-employer construction sites, «the prime contractor is responsible for health and safety» and gives contractors advice on how to protect themselves and take preventive safety measures: some courts determine the contractor`s liability by focusing legal analysis primarily on the language of the contract between the contracting authority and the contractor, which includes specific and detailed safety responsibilities, are imposed on the contractor by the contract. .
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