Safety Argument: Constructor's Duty of Care in Design Interpretation and Information Exchange

While Designers hold primary responsibility for safe design, Constructors in Victoria are not passive implementers. This article explores the Constructor's active duty of care under the Occupational Health and Safety Act 2004 (Vic) concerning the interpretation of designs during construction. It examines how competency, state of knowledge, and the obligation to ensure safety "So Far As Is Reasonably Practicable” (SFAIRP) compel Constructors to scrutinise designs, exchange critical information, and even assume specific design-related duties when producing elements like shop drawings.

1. Introduction

The successful and safe delivery of construction projects hinges on a clear understanding of roles and responsibilities. While the Designer's duty for providing a safe design is well-established, the Constructor's obligations extend beyond mere execution. Under Victoria's Occupational Health and Safety Act 2004 (Vic) (OHS Act), Constructors have a profound duty of care that encompasses how they interpret and interact with design information throughout the construction lifecycle. This includes identifying potential risks arising from the design, communicating these effectively, and understanding the heightened responsibilities when undertaking tasks akin to manufacturing or supply.

2. The Constructor's Overarching Duty of Care (SFAIRP)

The foundation of a Constructor's OHS obligations lies in the general duties imposed on employers and self-employed persons. These duties revolve around ensuring health and safety "So Far As Is Reasonably Practicable” (SFAIRP).

Employer's Duty to Employees: OHS Act 2004 (Vic)
Section 21(1) states: "An employer must, so far as is reasonably practicable, provide and maintain for employees of the employer a working environment that is safe and without risks to health."

Duty to Other Persons: OHS Act 2004 (Vic)
Section 23(1) mandates: "An employer or self-employed person must, so far as is reasonably practicable, ensure that persons other than employees of the employer or self-employed person are not exposed to risks to their health or safety arising from the conduct of the undertaking of the employer or self-employed person.”

These provisions mean a Constructor must proactively manage risks, including those that might arise from how a design is understood, interpreted, and physically implemented on site.

3. Competency, State of Knowledge, and Design Interpretation

The SFAIRP standard requires consideration of what the duty holder "knows, or ought reasonably to know" about hazards and risks. For a Constructor, this links directly to their:

Competency: The expected skill, training, experience, and knowledge to undertake their construction work, including reading and interpreting design documentation.
State of Knowledge: Awareness of industry best practices, common construction risks, and information pertinent to the specific project.

This implies a duty to:

Understand the Design: Constructors must take reasonably practicable steps to comprehend the provided design. Ambiguity or lack of clarity that could lead to unsafe construction practices necessitates seeking clarification (e.g., via Requests for Information - RFIs).
Identify Obvious Errors or Risks: If a design contains an error, omission, or safety risk that would be apparent to a competent constructor in their field, they have a duty to raise this. This is not about undertaking a full design review, but about recognizing manifest issues within their sphere of expertise and control over the physical works.

The "Ought Reasonably to Know” Test
The OHS Act implicitly expects Constructors to apply their professional acumen. They may not be design specialists, but they "ought reasonably to know" about construction hazards, common industry standards, and glaring inconsistencies or dangers evident in a design from a practical construction viewpoint.

4. Constructors as "Designers" or "Manufacturers"

In certain circumstances, a Constructor's role can extend into areas with more direct design-related responsibilities, particularly when producing shop drawings for prefabricated components or bespoke elements.

Duties of Designers of Plant: OHS Act 2004 (Vic)
Section 27(1) outlines: "A person who designs plant that is to be used, or could reasonably be expected to be used, at a workplace must ensure, so far as is reasonably practicable, that the plant is designed to be safe and without risks to health if used for a purpose for which it was designed." (Note: "Plant" is broadly defined and can include structural components).

Duties of Manufacturers of Plant: OHS Act 2004 (Vic)
Section 29(1)(a) requires: "A person who manufactures plant that is to be used, or could reasonably be expected to be used, at a workplace must ensure, so far as is reasonably practicable— (a) that the plant is manufactured to be safe and without risks to health if used for a purpose for which it was designed..."

When a Constructor develops detailed shop drawings for elements like structural steel, precast concrete, or complex facades, they are, for those elements, acting as a designer and/or manufacturer. They must ensure their detailed design (the shop drawing) is safe, buildable, accurately reflects the principal Designer's intent, and correctly interfaces with the overall structure. This necessitates a robust information exchange with the principal Designer.

5. The Imperative of Information Exchange

Effective risk management SFAIRP requires open communication. While Victoria's OHS Act doesn't have a singular, explicit clause mirroring the model WHS laws' duty for inter-duty-holder consultation, the principle is inherent. Constructors, leveraging their site-specific knowledge and practical expertise, may identify design aspects that are impractical, potentially unsafe as detailed, or could be improved for safety or efficiency. Communicating these observations to the Designer (and client, where appropriate) is a crucial part of fulfilling their duty of care. This collaborative exchange allows the Designer, who retains ultimate design authority, to make informed decisions.

6. Systematic vs. Random Errors in Design Interpretation

6.1 Systematic Error: Intentional Dismissal

A systematic error occurs if a Constructor knowingly disregards a design flaw or safety risk that is obvious to their level of competency and state of knowledge. Examples include proceeding with construction despite clearly inadequate structural support shown on a drawing, or using a material known to be hazardous for the specified application without query. Such actions would likely constitute a breach of Sections 21 and 23 of the OHS Act. The argument that "it was the designer's drawing" offers no defence if the Constructor proceeded despite an evident and significant risk they should have identified and queried.

6.2 Random Error: Incidental Omission

A random error involves a Constructor failing to identify a subtle, implicit, or complex design flaw that is not obvious to a competent constructor without specialist design expertise. This could be a sophisticated engineering miscalculation or a latent material defect not widely known.

Defence Against Incidental Omission
In the event of an incidental omission leading to an issue, a Constructor's defence would typically involve demonstrating:

The error was not something a reasonably competent constructor, exercising due skill and care for their role, would have been expected to identify.

Reasonable reliance on the specialist expertise of the principal Designer (who has duties under Section 28).

The subtle or hidden nature of the error, with no "red flags" that should have prompted further investigation by a constructor.

Adherence to good construction practice and quality control.

Expert testimony and evidence of industry standards would be crucial.

7. Conclusion: Proactive Engagement for Safety

The Victorian Constructor's duty of care extends significantly into the realm of design interaction. It is not a passive role but one that demands active engagement, critical thinking based on their competency, and open communication. By diligently interpreting designs, raising legitimate concerns about obvious risks, and understanding their heightened duties when involved in specific element design or manufacture, Constructors play an indispensable part in ensuring that projects are delivered safely and in compliance with the Occupational Health and Safety Act 2004 (Vic). This proactive stance is fundamental to managing risks SFAIRP and fostering a safer built environment.

Disclaimer: This article provides general insights and should not be taken as specific legal advice. Parties should consult with legal professionals for advice tailored to their specific circumstances and contracts, and refer to the Occupational Health and Safety Act 2004 (Vic) and associated regulations.