Access and Egress issue - Who is responsible ?

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Bigcat
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Access and Egress issue - Who is responsible ?

Post by Bigcat » Wed May 09, 2018 12:30 am

Hi, glad to be back.

Just wondering if I could ask the forum for some advice please ?
We have an issue at one of my sites regarding access and egress / ownership.
There is a contractor who manages the whole facility on the behalf of the client, the client owns the building (Duty Holder).

A visitor has put in an insurance claim against the client due to a trip on a pathway.
My questions are "risk assessments" for that area, who is ultimately responisble, the client, or the facility operator ?

I have stood by the fact that the client is the Duty holder, and assett owner, so it would ultimately be down to them ?

Any advice is apreciated.

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Re: Access and Egress issue - Who is responsible ?

Post by Alexis » Wed May 09, 2018 10:08 am

Hi Bigcat. Good to see you back in the fold. :D

Here are my thoughts:

Regardless of the ownership of the access/egress area, which I presume is necessary to enter the premises of the facilities operator, both have duties under Section 2 of HSWA, which includes access/egress.

As far as who should do the risk assessments - under the Management of Health and Safety Regulations, both parties should cooperate and coordinate with each other and come to a conclusion as far as is reasonably practicable.

In answer to your question, in my opinion, both have responsibility.

To take it further - There should have been an action plan in place, within the RA, allowing for such occurrences. This would show who the responsible person was and who would take charge of any repairs necessary.

However, if the pathway trip hazard had been reported to one or other of the responsible parties (outwith the procedures in place) and had not been acted on, either by communicating the problem to the second party, or an agreed solution and time put in place for repair, then in my opinion, both, once again would be at fault.
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ssmith65
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Re: Access and Egress issue - Who is responsible ?

Post by ssmith65 » Wed May 09, 2018 10:29 am

I believe this is a question that often comes up as related to health and safety.

The way I see if and i was told this a few years back is that

`You can delegate responsilbity but not accountability`

So, you can make someone responsilble for the up keep of something, for example the pathway and ensure this responsilbity is carried out by way of audits or meetings but ultimatly all that is in place to ensure the duty holder to carrying out the duties for which they are accountable. The duty holder would then use any documents generated in its defence to mitigate some of the accountability.

At least thats the way I see it. Happy to stand corrected.

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Re: Access and Egress issue - Who is responsible ?

Post by bernicarey » Wed May 09, 2018 11:11 am

Hi Bigcat

You lost me just a little with
We have an issue at one of my sites regarding access and egress / ownership.
There is a contractor who manages the whole facility on the behalf of the client, the client owns the building (Duty Holder).
as to who was who?

So if I have this right, your Client owns the site, and a management company runs it for them. This site is presumably some sort of industrial park, managed office facility or other location where other businesses all have 'units'.

Alexis has mentioned HSWA s2, but that is regards 'employees'; you've said this was a visitor, so it's a s4 issue, "General duties of persons concerned with premises to persons other than their employees".

s4(2)
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.
The cooperation element that Alexis refers to in the Management Regs is, IMHO, more about those sharing a facility, so for example all the individual tenants in a managed building ensuring that their activities do not conflict.

In the case of a fall in a common area, that IMHO would be the responsibility of the Building owner; they can delegate to the management company to run the place, but they can't shirk their responsibilities.
It's a case of Due Diligence to make sure the management contractor is doing their job.
It's one of those things where if it went to court, there would be a lot of 'It's not me it's them' from both the owners and the management contractor.

In your case, I would suggest it's something to be sorted out between the respective insurance companies of the Owners and the management company; it could be down the the terms of their contract.
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Re: Access and Egress issue - Who is responsible ?

Post by stephen1974 » Wed May 09, 2018 1:10 pm

Regarding responsibility, both parties have a responsibility.
Regarding accountability, the courts would have to look in to the circumstances to determine liability. They could decide both are liable, but with different levels of liability.

You asked specifically about risk assessments. I would suggest this:
The operators are employed to manage the facility and they would be expected to carry out the risk assessments.
The owners have a responsibility to ensure the company is doing it job. They wouldn't be expected to check every risk assessment, or check that everything that needed assessing was assessed. That isn't reasonable practicable. However, I would suggest they would be expected to employ the services, or get the operators to employ, an external contractor to perform H&S audits on a regular basis, and that these finding are reported to the owners so they have independent verification of how well the operators are performing.

I'm assuming, since you asked who should have done these, one wasn't done for that area.


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Re: Access and Egress issue - Who is responsible ?

Post by speshtiny » Sat May 12, 2018 11:01 am

Hi, Bigcat and everyone.
My advice or take on this matter.
I deal with this in my workplace. We don’t own the building but we are responsible for all contractors and visitors entering the building. So keeping all paths leading up to the building clear, keeping all access and egress free from obstructions and so on.
But we are not responsible for the repair or maintenance as this is done under the agreement from the building owners i.e. broken slab - repair
So if a state of repair is noticed, we have the obligations of warning all staff, contractors and visitors, also raising a work request with the building owners.
- If we just left it, didn’t put up any warnings and someone was injured, then it's our fault.
- If we raised the repair and the owners just left it or took forever to fix, it becomes their fault. As we have done everything possible our end to prevent an incident.

Like our buildings, we have a few, it’s in amongst many more, all governed by one department. We have a Memorandum of understanding (MoU) and this details a lot of who is responsible for what and so on with that department.
With your case, is there a MoU between the client and the building owners? What is written in the lease agreement? I have seen a lot of companies try and neglect their responsibilities in the small print of a contract.

There is so much more I could add, but hope this helps and if you require any further information please just ask.

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Re: Access and Egress issue - Who is responsible ?

Post by Bigcat » Tue May 15, 2018 5:32 pm

Hi all , apologies for the late reply.
Some great advice as always, which is much appreciated.

Correct, an RA wasn't present.
In the Contract agreement , the Investment over a certain theshold (or replacement) had to be authorised by the building owner.
The F management company notified the building owner of the area (needing a lot of investment). The building owner decided not to spend the money.
The state was left as it was, and the accident happened.

The building owner (with financial authority) being the Duty holder, I would assume have the accountability?

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Re: Access and Egress issue - Who is responsible ?

Post by bernicarey » Tue May 15, 2018 5:35 pm

Bigcat wrote:
Tue May 15, 2018 5:32 pm

The F management company notified the building owner of the area (needing a lot of investment). The building owner decided not to spend the money.
The state was left as it was, and the accident happened.

The building owner (with financial authority) being the Duty holder, I would assume have the accountability?
Sounds like negligence on the part of the responsible person/duty holder.One for the lawyers to fight over.
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stephen1974
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Re: Access and Egress issue - Who is responsible ?

Post by stephen1974 » Thu May 17, 2018 2:30 pm

Bigcat wrote:
Tue May 15, 2018 5:32 pm

Correct, an RA wasn't present.
In the Contract agreement , the Investment over a certain theshold (or replacement) had to be authorised by the building owner.
The F management company notified the building owner of the area (needing a lot of investment). The building owner decided not to spend the money.
The state was left as it was, and the accident happened.

The building owner (with financial authority) being the Duty holder, I would assume have the accountability?
The Risk Assessment is the responsibility of the FM company. If they had identified a problem and gone to the owners with it, regardless of the reaction of the owners, the FM company had a duty to do something about it. Risk Assess it and do something about it. If it cant be rpeaired then restricting access would be the next order of the day.

Obviously, without seeing the area and the problem its hard to say what could have been done but unfortunately with nothing done I think both parties will be held accountable. Assuming the FM company can prove they passed the information on the Owners refused to do anything.

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