Occupancy Risk Assessments – Why you should get them done

Many Property Owners share a premises with others in Commercial complexes. This may be where units in a building are sold seperately and then occupied by tenants (companies or organisations) or where they work on a shared site. Some of these multi-tenant complexes will have “common areas” that are under the control of a Body Corporate or Property Mananger as “landlord” rather than the occupier(s) of the premises. Also, it is not uncommon for shared workplaces to have shared services, such as fixed electrical installation, gas supply, and fire safety systems (including alarms and emergency lighting and sprinklers).

Sharing a complex with other users can mean an increase in unknown risks to health and safety because one company can affect risks to another. In addition, the unknown risks caused by tenants may compound the risk to the property itself. Sharing premises also has the potential for misunderstanding and communication problems where there is no formal “management body” established.

The legal requirements relating to shared premises are clear and should be understood by all occupants. The risks involved in shared premises need to be carefully managed and this must start with an effective Occupancy risk assessment process.

Legal outline

The main legal requirement begins with the common law duty of care, which was established in the United Kingdom in the well-known case of Donoghue v Stevenson [1932] UKHL 100. In this case it was decided that a duty of care is owed to “neighbours”. The case defined a neighbour as someone who might reasonably and foreseeably be affected by someone’s acts and omissions. Therefore those sharing premises have a common law duty of care to each other and must consider this when carrying out their normal work activities and processes. If parties sharing premises do not fulfil their common law duty of care, they may be subject to costly civil claims in the case of injury or loss to a “neighbour”.

Statute law also imposes a duty of care on those who share premises. Section 8 of the Occupational Health and Safety Act, Act 85 of 1993 places a duty on employers to take care of their own employee’s health, safety and welfare. In most cases Property owners do not need to worry about the actions of their tenants in terms of Labour law. However, Section 9 of the Act states that employers must give regard to the health and safety of those they do not employ. This in general terms include all members of the public, and tenants in neighbouring units. Clearly, this duty applies to those sharing premises and sites and requires employers to consider not only the health and safety of their own employees but also that of non-employees who could be affected by their actions. This will include employees of other companies sharing sites and buildings.

How does this then affect the Property Owner?

The business of the property owner is “real estate” and generating income through the leasing and letting of properties of all kinds. A tenant is therefore a “client” of the Property Owner. Where a tenant then causes a probem for the owner of a neighboring property or unit within the same shared complex, this could become a very uncomforable situation.

Futhermore, there is a legal duty on the owner of a building to ensure it is used and maintained in such a manner that it will remain safe for continued use.

Let’s look at the law quickly focusing on the dominant requirements:

Section 9, in respect of employers and self-employed persons, states that:

1) Every employer shall conduct his undertaking in such a manner as to ensure, as far as is reasonably practicable, that persons other than those in his employment who may be directly affected by his activities are not thereby exposed to hazards to their health or safety.
2) Every self-employed person shall conduct his undertaking in such a manner as to ensure, as far as is reasonably practicable, that he and other persons who may be directly affected by his activities are not thereby exposed to hazards to their health or safety.

The problem for the Property Owner lies in the aftermath of the failure of the tenant (employer or self-employed person) when there is a fire, damage to third party property, a death or a major incident which results in a claim for damages beyond the insured value of the building. Another issue is the possibility that the actions of the tenant resulting in a loss, may be outside the scope of the Property Owner’s own insurance.

There are also a few other regulations under the Occupational Health & Safety Act, which could result in criminal liability for the Property Owner or the Body Corporate. One is the Electrical Installation Regulations, which puts the liability for electrical matters in the hands of the owner or the tenant. The intention here, is that the “who” is determined by the lease agreement.

The second regulation is the Construction Regulations of 2014, which makes the Property Owner or Body Corporate liable for all construction work on the “common property” of a complex or estate or where the construction work in terms of the lease agreement, falls within the obligations of the Property Owner or Body Corporate. In these regulations, there is a legal duty on the property owner or body corporate to force compliance with the rules on any person performing the construction work on its behalf.

The Construction regulation further states that

An owner of a structure must ensure that—
(a) inspections of that structure are carried out periodically by competent persons in order to render the structure safe for continued use;
(b) that the inspections contemplated in paragraph (a) are carried out at least once every six months for the first two years and thereafter yearly;
(c) the structure is maintained in such a manner that it remains safe for continued use;
(d) the records of inspections and maintenance are kept and made available on request to an inspector.

A structure for the purposes of these regulations could include any of the following:

(a) any building, steel or reinforced concrete structure (not being a building), railway line or siding, bridge, waterworks, reservoir, pipe or pipeline, cable, sewer, sewage works, fixed vessels, road, drainage works, earthworks, dam, wall, mast, tower, tower crane, bulk mixing plant, pylon, surface and underground tanks, earth retaining structure or any structure designed to preserve or alter any natural feature, and any other similar structure;
(b) any falsework, scaffold or other structure designed or used to provide support or means of access during construction work; or
(c) any fixed plant in respect of construction work which includes installation, commissioning, decommissioning or dismantling and where any construction work involves a risk of a person falling;

When letting a “structure” the issue of “safe for continued use” could come in dispute where the tenant “uses” the structure for a purpose other than for which it was designed. As example, we could use a mutli unit complex where there is a swimming pool manufacturer as well as a steel fabricator. The one stores large quanities of flammable liquids on site, while the other performs welding, cutting and grinding operations; next to each other.

The situation itself, makes the building unsafe for continued use, purely by virtue of its occupancy. The remedial measures will become a dispute as to who pays for the installation of a flammable liquid store? Who is responsible for the additional fire preventive measures to the building which was not designed for either classes of occupancies?

Risk assessment

The Act requires all employers to carry out risk assessments. Each employer must ensure that it deals with the risks associated with the activities it undertakes and that are under its control.

In particular, in shared occupancy premises and sites it will be important to consider the risks to the other occupants from differing work activities. Non-routine activities such as maintenance activities must also be carefully examined.

It is important for the results of such risk assessments to be shared with the other occupants of shared premises. There may be the need for an overall risk assessment and if one employer controls the whole site or building then that employer will be required to take the lead.

Employers should consider, in the risk assessment, their own specific work activities, and in particular what risks there are to third parties such as those who share the building or site — and what controls for these risks are required.

Matters to consider

There are a number of general matters that should be considered when performing shared occupancy risk assessments.

Health and safety policy and arrangements

Does the policy give regard to shared occupancy? Do the arrangements for health and safety include and deal with the shared occupancy risks? Is shared responsibility detailed in the policy? Is the policy jointly owned by parties sharing occupancy of the premises? Which of the parties sharing occupancy of the premises sign the policy?

Health and safety management systems

There should be a health and management system in place for each employer and this should be in line with the ISO45000, SmartSafe or similar systems. Does the system include those issues relating to shared occupancy? Is the monitoring of health and safety performance such as accident investigation, inspections and audits to be co-ordinated centrally? Is there the need for a site-wide health and safety management system?

Competent person

Is there or should there be a health and safety advisor for the whole site? Should respective health and safety advisors liaise? Is a health and safety co-ordinator needed? Is there expertise available, which could be shared for the benefit of all? What training is required?

Health and safety consultation

What arrangements should there be to ensure proper consultation on health and safety matters? Are there trade-union-appointed safety representatives on site? Are there appointed non-trade union representatives of health and safety? Is there the need for a central health and safety committee? Are the Safety Representatives and Safety Committees? How will health and safety matters be communicated to all on site?

Serious and imminent danger

Have all types of emergency situations, which may require evacuation or emergency action, been considered? (This may include security threats, fire, chemical release, etc.) Has the impact on other occupants been considered?

Do the separate employers’ emergency procedures take into account everyone in the workplace or site? Is there co-ordination between the occupants for evacuation purposes? Are the shared responsibilities clear? Are the procedures clear? Are evacuation drills carried out? Has contact with the emergency services been made as necessary?

Are there “danger areas” to which access must be restricted? Has this been communicated to all on site?

First aid

Is there a need or scope for shared provision of first aid? How many first aiders should there be? Are there any special risks requiring specialist first-aid training? If so, these special risks and related first-aid treatment must be communicated to other occupants.

COIDA

Are there arrangements in place to ensure that the requirements of Reporting of Injuries, Diseases and Occurrences are complied with? Is it clear who should report accidents to non-employees? Is it clear who should report “dangerous occurrences”? Are central records to be kept?

Access, egress and common areas

The common areas of the premises are areas that are used by occupiers but not controlled by them. These areas may be under the control of a landlord rather than of the occupiers.

Although the individual occupiers may not have any direct control over the common areas of the premises, they need to ensure that access and egress through these areas are safe for their employees, visitors and contractors. This may require liaison with the landlord. The areas under consideration could include:

  • the car park
  • access routes to the premises
  • external ramps and steps
  • internal staircases
  • corridors
  • lifts and lift lobby areas.

Facilities management

Who is responsible for facilities management? Are there any shared functions? Is there a need for co-ordination between occupants? Are procedures in place? Is there a need for permits to work, which will require co-operation between occupants?

Contractors

Are there central and co-ordinated procedures for the work of external contractors? Are there procedures in place to ensure that permits to work are followed by contractors?

Training

Is training required to account for shared occupancy risks? Do line managers and supervisors require specific co-ordinated training? Is specialist risk awareness training needed?

External agencies

Are there a number of enforcement agencies responsible for the site or building? Typically this could include the Health and Safety Executive, local authorities, the Environment Agency and others. Are procedures in place to deal with any overlap of enforcement responsibility?

Conclusions

There are clear legal requirements on those who share premises, to “co-operate and co-ordinate” on health and safety issues. These requirements are in place because there are special and often increased risks when premises and sites are shared. Those sharing sites need to pay special attention to these risks and take appropriate positive action.

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