Health and safety on construction sites: Criminal Cassation judgment
It is in line with the provisions of Legislative 9/4/2008 Decree n. 81, as amended, contains the Consolidated Law on health and safety at work, this judgment of the Court of Criminal Cassation which have been identified insolvency responsibility of the coordinator at run time and the undertaking 's foster following a fatal accident happened at work on a construction site in which, on the basis of a complex scheme of work contracted cascade came to be at work simultaneously different contracting companies. In this case, in particular, foster a company has granted part of the work had contracted by the client and for the construction of a shopping center to a subcontractor which in turn transferred the work of supply and installation of the structure metal of the building to another company which in turn still has entrusted to a fourth company of the mounting plates and panels making up the metal roof of the building. It was just an employee of that company subsubappaltatrice who was the victim of the accident on the job for a fall on deaf ears as a result of a failure of part of the roof structure.
The decisions of the Court and then before the Court of Appeal and finally the Supreme Court shall be deemed to have been taken in full respect of the provisions of Legislative Decree no. 81/2008 as, in addition to the employer of the injured were called to respond to the incident both coordinator at run time that the holder of the contracted company for failing to provide acoordinare the ongoing work on the construction site and the latter even more for not having controlled the security not only of its employees but also on the work done by subcontractors in respect of which the same standard to assume a position of warranty.
The dynamics of the accident.
The accident at work in question happened while the worker was carrying a heavy metal that was intended to complete the roof covering and frames after the same has put a foot out of an opening in the floor covered by a panel of polystyrene that has succumbed under the weight of the worker.
The client, through its safety coordinator, had failed to prepare the security plan and coordination (PSC) and all businesses both contractor that subcontractors had prepared its operational safety plan (POS) according to the legal provisions in force. For what happened were indicted co-ordinator for the design and execution of the works nominated by the client, the President of the company entrusted with the responsibility for the safety and technical director of construction, the foreman and the foreman of the same enterprise, in addition to employer of the injured. The Court has recognized the responsibility of all the defendants, except for the foreman (who died before the trial) and the President of the company who was acquitted for not having committed the crime, and ordered the security coordinator to sentence of six months imprisonment, the technical director of construction and the employer of the injured each to eight months in prison and the foreman to one year. Any judgment given by the Court were later confirmed by the Court of Appeal.
Singular was the dynamics of the accident. At the time of the injury was work in progress for completion of the steel structure of the roof of the building and infill of the side openings. Following the fall of the worker not properly protected and existing opening in the attic on the first floor, where the injured worker was at work, and on which it was resting just a polystyrene plate, the same falling impacted against a plank that protected the mouth of a fireplace below which in turn sold by end upside down within a ventilation duct worker who then fell to the ground once followed the whole of the duct and after a fall of about 14 meters.
All the defendants were liable for failing to draw up suitable safeguards for the protection of openings in several places of the yard and necessary to allow the passage of air ducts, and the foreman more for not having ensured that the guards were not removed same apertures. The latter in particular claimed to have duly complied with the requirements of the law with the arrangement of the openings sealed fixed networks from pieces of wood that held tight the track network and evidently were subsequently removed.
In fact it was found that the networks had not been sealed permanently anchored to the ground as required by law (DPR n. 164 of 1956, Article 68, paragraph 1) and the same POS that the contracted coverage of openings in the floors had to be firmly fixed so as to remain always in the same position and offer resistance not less than that of the decking. The protection of the opening of the ducts of the floor below was deemed insufficient as a shelter that was merely apparent and not being likely to provide the necessary strength to the body of the injured worker.
"In the yard there were more companies, multiplication undoubted element of risk," said the Court of Appeal, "and the duty to adopt general measures for the protection of all workers, including non-employees, was borne by the contracted company "so charged to the foreman of that undertaking has been detected responsibility not scoring a safe system of protection and did not properly monitored, which would allow him to detect prior to the accident that the safety net opening in question was out of place. For the same reasons has been held accountable also the technical director of the yard, up the site manager for the company foster also in terms of security, from which the foreman took orders; formed part of his duties in overseeing the preparation of measures general what were those under consideration. The safety coordinator has been held accountable in view of its position as the guarantee that competed in his capacity as editor of the Safety Plan and Coordination (PSC), "central figure", he continued his Sec. IV, "in the rules laid down by Legislative Decree no. 494 of 1996 with specific tasks (Article 5) of control and supervision during the execution of the work. " "He was present at the site," he also argued by the Supreme Court, "and therefore should have realized that the system was not made regular and claim the commissioning rule, whereas it had tolerated".
The appeal to the Supreme Court.
Against the judgment of the Court of Appeal filed an appeal to the Supreme Court the defenders of the safety coordinator, the technical director of the yard and the foreman. The coordinator for security, in particular, among other reasons given, argued that in previous proceedings had not been taken into account its diligent work done in the yard, also documented by photographs, and that "the role of the coordinator should not be construed almost like a liability. "
The Technical Director and the foreman, for their part, have to be clear that the injured worker was employed by the subcontractor and the contracted company and that the latter, however, in the working phase in which the incident occurred, not was carrying out any work in the plan where the same has happened. The appellants also emphasized that, based on the content of the D. Decree no. 494/1996 (in force at the time of the incident), each of the contracting companies on the job site was responsible for the safety of its employees and was required to draw up its own operational safety plan (POS) in relation to the work that was required to perform, plan as to which the company was to treat only the execution, and also claimed that there is no obligation on the employer of an executor, whether the main contractor or not, to supervise the implementation of the plan safety and general coordination (PSC) being a fulfillment of this responsibility of the customer or the person appointed by him as co-ordinator or to supervise the implementation of an operational plan that is not his.
According to the defenders of the technical director of the yard foreman and the contracted company, in addition, the lower courts had wrongly attributed to this undertaking the substantial role of "sponsor" with respect to subcontractors, in view of the fact that it was the company present in the main yard, and unjustly so they charged the same responsibility for ensuring compliance with the SGP neglecting that, pursuant to article 2, paragraph 1, letter b of the said Legislative Decree, are headed exclusively to the client, such as "subject on whose behalf the entire work is done," the responsibility for the coordination provided for in Article 6. The applicants, therefore, does not hold the company entrusted with the role of the buyer, have concluded that it had no obligation to give effect to the requirements of the PSC of the client, but only to those of its POS and concluded that if it was true that the latter provided POS and disciplined the danger of falling from a height, the same would have to ensure compliance of this plan only in places where the firm entrusted with waiting, with its existing workforce and to any process which had led to such a risk.
The decisions of the Supreme Court.
The Court of Cassation rejected the appeals of the accused holding them unfounded. As far as the safety coordinator and his observations, the Supreme Court has deemed to be correct the assessment made by the Court of Appeal in relation to his behavior having considered "guilty as they come into being in violation of the specific location of assurance that required him to monitor the practical implementation of the provisions in the security plans (PSC and POS) and continued compliance with the requirements as well, and can be considered especially in relation to the progress of the work, being very often that's the most dangerous moment in the life of a construction site, on the one hand, to the take over of a certain reliance on the practices and, on the other hand, normally, for entry into the construction site of new subjects not aware of all of the previously made up to that moment " .
Regarding the use of the technical manager and foreman of the contracted company and the observations formulated by the same obligations, the contractor in accordance with the safety standards has the fundamental task to ensure proper coordination between the various companies operating in the yard, Sect. IV has emphasized that the same defendants "have neglected to consider that such regulation is not necessarily exhaustive of all the rules that govern the safety at work, since the decree in question fits into the overall framework of the rules laid down in this area , which special rules dictated to better protect a specific working environment, what shipyard's temporary and mobile precisely, which, because of its special characteristics (linked to the lack of a reference point business stable since each site is a reality in themselves, with their own needs and entrusted to a person who may well be different every time) and the correlative particular hazards of the work that takes place in it, needs special rules and special but not exclusive of course, and indeed require, as it disclosures, the simultaneous application of general rules. "
"This is so true," continued the Supreme Court, "that the Legislative Decree n. 494, 96, Article 1, paragraph 2, expressly states that, in the specific area that it regulated, that of temporary and mobile, and subject to the specific provisions laid down by it are concerned, the provisions of Legislative Decree no. 626, and Article 8 of the same decree draws employers on the job site to observe the general safety measures referred to in Legislative Decree no. 626 of 1994, Article 3 "and" imposes on them - to the letter g. - To cure, each for part of competence, cooperation between employers and self-employed. "
As mentioned above, therefore, the Sec. IV considered to be perfectly consistent with the regulatory framework in D. Decree no. 494/1996 and Legislative Decree no. 626/1994 (then in force) the allegations contained in the judgments of conviction that, since the yard a structure and a complex organization, was part of the main tasks of the contractors to coordinate and to adopt general measures the protection of all workers, including non-employees. "The main responsibility of which plays the role of the buyer with respect to subcontractors," he said still the supreme court, "being connected with the realization of the overall project, even though it remains no longer operates in the area where the situation of risk lies. "In essence, concluded Sec. IV, what the judges of both lower courts had correctly stated that the company is entrusted with, and through it the foreman and the technical construction site as the highest responsible for safety, "as the main contractor of the works for the construction of the shopping center itself and contracting of specific works, was bound to the supervision of the entire construction site especially since, as pointed out in particular the judgment of first instance, it was measures of a general nature. "
Supreme Court - Criminal Section IV - Case no. 25529 of 5 July 2010 - Pres Morgigni - East Bianchi - PM Of the People - Ric. R.M., M.P., A.F. The Supreme Court: confirmed the co-responsibility of the coordinator and the contracted position and their warranty claims against the contractors who may come to be at work in the work on a construction site.
17/01/2011
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Translated via software
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Source:
Italian version of ReteIngegneri.it