The vast majority of people who contemplate building or altering their homes are not aware of the content or the implication that the Occupational Health and Safety Act 85 of 1993 (as amended) has on what they are doing. The purpose of this article is not to scare anyone but simply to make you aware of the existence of the legislation and what it means to you. I have also only highlighted a few of the more important issues in the Act for you to look at. It is obviously your choice to accept or ignore the issues dealt with once you are aware of them.
In terms of the Act, with any building operation it is the responsibility of the owner of the property, who is assumed to be a “competent person” to ensure that the builder complies with the provisions of the Act with regards to issues of Health and Safety. Any builder that you engage is legally obliged to provide you with an approved Health and Safety (H & S)Plan for your project based on a specification that must be written for your particular project. The Act also states that as the owner, you are responsible for the implementation of the all the terms and conditions set out in that Plan and this includes the completion of all the relevant documentation of which there is quite a bit. The problem is that the Act also states that this monitoring process should be done by a “competent person” meaning someone who is trained in this field and it is unlikely that you will have the necessary qualification.
The important issue to consider is that where there is no Safety Plan on site or where an approved Safety Plan is not being implemented, in terms of the Act, any accident on the site involving anyone working on it is legally your responsibility and not that of the builder.
The builder’s general insurance will cover the building work and he must also be registered with Workman's Compensation to cover his employees. This will not include injury to members of the public coming onto the site. His public liability insurance will take care of that issue. This last insurance is often left to the owner. If the builder did not register with Workman's Compensation, then the responsibility will fall on the home-owner for the medical costs and in addition he may be fined and/or face a prison sentence.
All these insurers will only accept liability if all the items in the H & S Plan have been adhered to and if it can be proven that regular inspections were done and all the required paperwork is in order.
It is quite obvious from the list of responsibilities set out by the Act, that the task is an onerous one for any owner to implement and the risk involved is generally unacceptable.
It is also not legal for any builder to indemnify you from liability for any of the provisions in the Act.
In terms of the Act, it is the responsibility of the Owner to ensure the following:
• That the cost of implementing Health and Safety issues is provided for within in the building budget by yourself.
• That the contractor provides a Occupational Health and Safety Plan for your written acceptance which is in accordance with a Health and Safety specification written specifically for your project and that the builder has costed safety issues into his tender.
• That the Plan is implemented and maintained by the contractor for the duration of the contract by making regular inspections on the site and you must be prepared to stop work if the Plan is not being satisfactorily adhered to.
• That all site personnel are familiar with the provisions of the H & S Plan and that a copy of the plan is available for them on site.
• That the contractor’s insurance covering the works is up to date and valid.
• That there is a valid public liability insurance in place.
The alternative to taking the risk and doing this work yourself, is to appoint a “competent person” to take over the responsibility and the risk and to represent you as a Health and Safety agent on the site for the duration of the project. There are a number of specialist professional firms in Cape Town (and elsewhere) who will perform this function on your behalf for a nominal fee. (SafetyCon is one of the firms that can be contacted.)
It is to be noted that, your Architect’s Professional Indemnity insurance will not cover Health and Safety issues on site. If however, he has been appointed as the Principle Agent on a larger project then the same responsibility and liability as for the client is transferred to the Principle Agent. It is then his prerogative to charge the client an additional fee to take on the roll of “competent person” or if he is not in a position to take on that roll, to then include the cost of appointing an outside “competent person” within his fee structure or separately.
I trust that this article will be of benefit to you.
L A Design Studio