Joanna Lewis examines the security measures that construction firms should take on sites suspended due to the coronavirus, and whether ‘all-risks’ insurance covers such a shut down.
The situation with covid-19 is moving rapidly. Daily, sometimes hourly updates are issued as the industry learns more about the Government response and the virus itself.
It is important to note that at the time of writing, no site has been required by law to shut down. However, in the week following the ‘lockdown’ many sites started to close in response to public pressure and safety concerns. There are many considerations to be noted in the event of such a shut down, not least those of security and insurance cover. Note that this article does not seek to examine contractual or commercial issues which should also be considered.
At the time of writing, the Construction Leadership Council (CLC) has issued guidance on temporary suspension of sites – but what key legislation applies and what considerations should contractors take into account?
Security and safety – the law
- Initially it may be helpful to review the primary sources of regulation and legislation with regard to site safety and security. These include:
- The Health and Safety at Work Act 1974
- The Occupiers Liability Act 1984
- The CDM Regulations 2015
The first question a responsible contractor should ask is: “Am I complying with the law”? Followed by: “Is my site safe to leave”?
Occupier’s Liability Act
Every occupier – a person with control of land or property – has a duty of care with regard to the safety of persons on that property. This general principle existed before the Occupier’s Liability Act of 1984. However, it is now established in statute. Therefore, every site must be secured and safe. Walkways should be clear and the usual tenets of ‘good housekeeping’ ought to be observed.
Even what might be regarded as ‘trespassers’ must be protected from harm. Additionally, the ‘standard of care’ – what might be expected in terms of protection, varies according to situation. Children, for example, might attract a much higher standard of care, due to them being unable to read or understand risks, than adults. Simply erecting warning signs, and locking gates, may not be enough to discharge a duty of care to many classes of ‘unwanted visitor’.
CDM Regulations 2015
Added to the general duty, there is a specific duty to secure sites from the public and make them safe. This comes from the Construction Design and Management Regulations of 2015. These include the statement:
“…where necessary in the interests of health and safety, a construction site must, so far as is reasonably practicable, and in accordance with the level of risk posed, comply with either or both of the following; have its perimeter identified by suitable signs and be arranged so that its extent is readily identifiable; or be fenced off.”
Health and Safety at Work Act
The ‘Health and Safety at Work Act’ also covers more than just employees. It has a duty upon employers to ensure that those not in its employment, including visitors and the public, are safe.
The exact wording of the act is ‘lawyerly’, but the relevant paragraph for site security is as follows:
“It shall be the duty of each person who has, to any extent, control of premises to which this section applies or of the means of access thereto or egress therefrom or of any plant or substance in such premises to take such measures as it is reasonable for a person in his position to take to ensure, so far as is reasonably practicable, that the premises, all means of access thereto or egress therefrom available for use by persons using the premises, and any plant or substance in the premises or, as the case may be, provided for use there, is or are safe and without risks to health.”
In other words, any person must be safe from harm. This is an ongoing responsibility. It is important to note that sites must remain safe, so inspections or checking of sites may be necessary. Full health and safety risk assessments including fire, water ingress, electrical and mechanical installations should be carried out.
Security
Often, 24-hour security staff are employed to ensure ‘unwanted visitors’ are not put at risk when a site is in operation or closed. This may be a provision of the contract, or it may be to fulfil the requirements of an insurance policy or other specification document.
It seems unlikely that where a site closed for the night requires overnight security staff, such security would become unnecessary in the event of a long-term closure. In fact, it may be that the need for security increases. So, plans may need to exist to ensure security remains on site throughout a period of suspension.
Insurance
Depending upon the terms of your contract and insurance policies, there may be specified requirements to retain security staff. It is crucial that you check, and re-check your insurance policies. Additionally, the wording of your policy, even your all risks policy may not cover the risks of a shut-down resulting from a global pandemic.
Each policy will likely be slightly different in the extent of its cover. Indeed, even where ‘pandemic’ or similar wording exists, it will need to be quite specific in order for a policy to respond in such a scenario. If the wording of a clause relating to ‘pandemic’ or other outbreak is not clear, then it may be difficult to claim for any loss or injury resulting from such an outbreak. Therefore, making sure you have the appropriate measures in place to shut-down the site safely and securely is essential.
Conclusion
Shutting down a site needs careful consideration, not least because of the contractual and commercial implications but also because of the ongoing duties set out above. However, without an explicit instruction from the government, the best policy initially might be to sit down and have a conversation with all parties to the contract. Perhaps attempt to work out a pragmatic solution to what is, without doubt, an unprecedented situation.
Joanna Lewis is a partner in the construction, engineering and infrastructure team at law firm Beale & Co.
