Both the CDM Regulations 2015 (CDM 2015) and Building Information Modelling (BIM) have been introduced into the construction industry relatively recently. The similarities in the aims of CDM 2015 and BIM are self-apparent. Both intend to improve and refine the construction process, including, in particular, the management and exchange of data. BIM holds significant potential for supporting the fulfilment of the, at times, rigorous obligations of CDM 2015. This article explores how this could work in practice.

CDM 2015 (launched after various consultations and delay), aimed to bring the UK’s health and safety regulations in compliance with EU requirements, as well as make the regulations more effective and efficient, thereby reducing health and safety construction administrative burden and accidents.

BIM, a combination of new software, procurement processes and collaboration, is similarly aimed at making the construction process as a whole, more cost and time effective and efficient, thereby also improving quality of output. The Government’s mandate for the implementation of Level 2 BIM by 2016, as contained in the 2011 Construction Strategy, came into effect at the beginning of April 2016 and reflected by the industry’s current concerted efforts to implement BIM.
CDM and BIM: a natural partnership?
The data-rich environment of BIM, in easily accessible formats, has the potential to assist in the fulfilment of CDM duties. For example, employer’s requirements or specifications could require relevant information to be included into each designer’s BIM model to facilitate health and safety checks and requirements.

The ability to carry out construction simulations using the models also opens up the potential to identify the safest construction arrangements or processes, and establish likely construction
hazards. The data (whether provided by manufacturers or created by the designers) contained in the models could be embedded with material relevant to health and safety, which would make it easier to check and coordinate health and safety issues and make it less likely to be missed in a mountain of paperwork.

All these possibilities are particularly important given the wide-ranging scope of the new Principal Designer role, and could form an integral part of the Principal Designer’s management and coordination of the pre-construction and design health and safety issues, saving the Principal Designer time, costs and resources.

The potential does not end there. For example, BIM databases could be utilised to track important health and safety information relating to changes in design, materials and equipment, as well as personnel (such as when health and safety checks or training was last carried out). There are already research projects which progress this goal, such as where crane movements were modelled to establish how far across the site it would extend in order to establish lifting patterns and its potential collapse crash zone. Further, a number of trial projects have used data drawn directly from the model to create site visualisations that indicate potential accident hot spots. There are other innovative ways that model data is being utilised, such as the ‘Myzone’ system which uses proximity sensors to keep workers and hazards apart.

Singapore is already making it a reality. The Government-funded Corenet eplan checking software, around since 2001, enables a design to be checked for compliance with Building Regulations. Other model checking software like Solibri enables models to be checked for integrity, quality and physical safety, and is being developed to propose safety measures (e.g. guard rails) on the existence of recognised hazards during its checking process. This reduces the risk of accidents and health and safety incidents both during and after construction. The New York City Council is also starting to utilise BIM for building regulation applications.

In the event of an incident, the modelling data can also be used in investigations, reducing the time and costs of investigations (and any disputes) for all concerned. High risk industries like rail and nuclear already use a similar modelling approach in the investigations of accidents.

The obvious symbiotic potential between BIM and CDM has already been recognised by various bodies. The HSE BIM for Health and Safety Group and the Government-formed BIM4Regs Working Group are in the process of researching this potential, and RIBA Publishing has published a ‘BIM or Construction Health and Safety’ book.

The contractual issues of using BIM to fulfil CDM obligations

If parties are considering utilising BIM to assist the fulfilment or implementation of their CDM obligations, they should ensure that the scope and risk allocation are clearly set out in their contract documents to avoid mismatched expectations or unnecessary disputes.

As regards scope, parties would find it helpful to specify what health and safety information should be contained in the models and/or COBie (or other) datasets, and the level of development (and frequency of updates) required for such information. A standardised format for such information may also ease the parties’ review and dissemination of the information when received. This ensures that the information provided is useful, and there is less likely to be arguments on whether certain health and safety information needs to be prepared or provided.

It is important to specify the extent of authorised use of such information, as with any other BIM information provided to other parties, together with any exclusions or limitations of liability for unauthorised use. In the same vein, a party inputting or providing any such BIM health and safety information or data will want to expressly specify the standard of care to which this information has been prepared (compliance with BIM obligations should always be subject to the exercise of reasonable care and skill however, compliance with health and safety legislation is usually a strict obligations).

Where a party, such as the Principal Designer or Principal Contractor, is relying on such information extracted from BIM models and/or datasets in fulfilment of its CDM statutory and contractual duties, it would be sensible to incorporate appropriate exclusions and limitations of liability as well as, where possible, assurances or warranties from the employer, or directly from the information authors, on the accuracy of, or at least integrity checks carried out on, this information.

The changing and brave new world of BIM clearly holds significant potential for supporting the fulfilment of the, at times, rigorous obligations of the CDM 2015. Designers undertaking the new Principal Designer role in particular would find it sensible to utilise and expand the project’s existing or intended arsenal of BIM data and processes to satisfy the significant new obligations that they are faced with under the CDM 2015.

The obligations imposed by CDM 2015 on Principal Designers, as well as assuming the role of BIM Manager, create potentially onerous obligations which require careful consideration from both an insurance and contract drafting perspective.

If you are an architect (or other consultant performing such roles) you need to ensure that your Professional Indemnity insurance (`PII`) policy provides protection in respect of each activity. Furthermore, as the scope of cover for `cyber` risks varies considerably between different PII policies, you also need to consider the extent of your own risks and those that third parties would be exposed to if there was a `data breach` attributable to you in respect of the BIM data you hold.

For expert insurance advice in these areas please contact Chris Fitzgerald at Watson Laurie
Insurance Broker. Tel: 01204 387111 or cfitzgerald@watsonlaurie.co.uk.

If you require specialist legal assistance then please contact Sarah Maylor. Tel: +44 114 253
2050 or sarah.maylor@kennedyslaw.com You will
be offered favourable fee rates in recognition of you being a Watson Laurie client.