Preventing Accidents on Construction Sites

Preventing Accidents on Construction Sites This chapter investigates the health and safety measures that are currently in place to reduce accidents and injuries on construction sites. In order to prevent accidents in construction it is not just a matter of setting up a list of rules and making safety inspections, although both of these have their place (Holt, 2001). Holt (2001) suggests that a system for managing health and safety is required that meets the needs of the business and complies with the law. This chapter intends to identify these strategies used and highlight the benefits to the industry in implementing them. The most important overall method is to implement the CDM regulations 2007 successfully, however within these regulations there are specific measures that can provide better results. The HSE concluded in ‘Blackspot Construction’ that 70% of the deaths on construction sites could have been prevented by positive action by managers within the industry (Joyce, 2001). The general principles of prevention as stated in regulation 7 of the CDM regulations 2007 are as follows: i. Every person on whom a duty is placed by these Regulations in relation to the design, planning and preparation of a project shall take account of the general principles of prevention in the performance of those duties during all stages of the project. ii. Every person on whom a duty is placed by these Regulations in relation to the construction phase of a project shall ensure so far as is reasonably practicable that the general principles of prevention are applied in the carrying out of the construction work. Welfare Facilities The provision for health, safety and welfare of workers involved on construction sites was not included in the CDM Regulations 1994 as it was the responsibility of the CHSW 1996; however these regulations have now been revoked by the CDM regulations 2007. These regulations set out the requirements for the provision of welfare facilities to be provided by the contractors as it has recently been recognized that the health and safety of workers is directly affected by their personal welfare (Joyce, 2007). The provision of high welfare facilities is likely to reduce the number of accidents and injuries on construction sites as it promotes recruitment, good morale and employee retention. These reasons alone should be sufficient justification for the investment in welfare facilities which should encourage the client and contractors to ensure that they are provided on construction sites from the outset to an acceptable level. Without the provision of welfare facilities workers are likely to be cold, overheated, dirty, dehydrated and uncomfortable (Joyce, 2007), this in turn will have an effect on the efficiency and effectiveness of their work undertaken creating an unsafe environment to themselves and their fellow workers. The provision of welfare facilities can be seen as an important measure to reduce accidents on construction sites; however the contractors must ensure that they are cleaned and maintained throughout the entire duration of the construction work in order to achieve their full benefit to the industry. Education and Training Education and training plays a very important part in the reduction of accidents on construction sites which is a legal requirement under the Management of Health and Safety at Work regulations 1999 as well as more recently the CDM regulations 2007. It is the responsibility of the employer to provide such training during recruitment, at inductions or when being exposed to new or increased risks (Hughes Ferret 2007). The levels of education and training required covers a wide range of information such as specific company health and safety policies, risk assessments, method statements, safety procedures, good practice and legal requirements (Hughes Ferret 2005). It is evident that providing essential information through a high level of education and training will enable employees to carry out tasks with limited supervision, this in turn should reduce the likelihood of health and safety risks and therefore help reduce the number of accidents and injuries within the construction industry. Construction Skills Certification Scheme (CSCS) The Construction Skills Certification scheme has been set up to help improve the general quality of workmanship as well as to reduce accidents and injuries occurring on construction sites. This CSCS scheme helps to ensure that competent workers are registered within the construction industry, which is currently the largest scheme within the construction industry which covers over 220 different occupations. As a result of this these cards are becoming increasingly demanded throughout, in particular by clients and contractors in order for workers to provide proof of their occupational competence and therefore gain access onto construction sites throughout the UK. This scheme has been supported by construction authorities such as the Major Contractors Group (MCG), National Contractors Federation (NCF) and the Major Home Builders Group (MHG) as it shows they have passed the CITB – Construction Skills Health and Safety Test. If these cards are made mandatory as a standard requirement within the construction industry then it will ensure that the general health and safety awareness of construction workers on construction sites with regards to health and safety risks will significantly improve, therefore more than likely reduce the number of accidents and fatalities within the industry. http://www.citb.org.uk/cardschemes/whatcardschemesareavailable/certificationschemes/cscs.asp Competence Assessments The CDM regulations 2007 have highlighted the increased awareness that the employment of competent workers is likely to reduce the number of accidents within the construction industry. This is evident from the increased vigour of worker competence assessments that are required before a work operative can start work. Competence assessments are carried out in order to assess whether a person is suited to carry out a job which is a method used to reduce accident on construction sites. It is the author’s opinion that competent people are more aware of health and safety risks surrounding them which they can therefore deal with before an accident occurs. The level of competence required is proportionate to the risks arising from the construction work (Joyce, 2007) which is stated in the ACoP so no work undertaken should be carried out by an unable worker. The term competence is not defined in the CDM regulations however a definition made during a civil court case in 1962 sates that a competent person is: A person with practical and theoretical knowledge as well as sufficient experience of the particular machinery, plant or procedure involved to enable them to identify defects or weaknesses during plant and machinery examinations, and to assess their importance in relation to the strength and function of that plant and machinery. The concept of confidence underpins the CDM regulations 2007 because no duty holder can be appointed unless they are competent themselves, this is required by regulation 4(1)(a): No person on whom these Regulations place a duty shall appoint or engage a CDM co-coordinator, designer, principal contractor or contractor unless he has taken steps to ensure that the person to be appointed or engaged is competent. In order to prevent incompetent people assessing the competence of others, the CDM regulations set out a statement in regulation 4(1)(b): No person on whom these Regulations place a duty shall accept an appointment or engagement unless he is competent. The introduction of the CDM Regulations 2007 clearly shows that competence assessment is an important measure to prevent accident on construction sites and must be implemented further if these measures are to be highly successful. Designing to reduce risks The introduction of the CDM regulations 2007 has provided a bigger emphasis on designing out risks in the planning stage of construction projects. Increased responsibility has been placed on designers as a result of the introduction of the CDM regulations 2007 to eliminate hazards before they have chance to occur. Holt (2001) suggests that the method of prevention to remove the risk of a hazard at the design stage is likely to be more effective than to establish a control strategy, especially as it would rely on people to work in the correct way which is not always likely to happen. An example of this may be for a designer to prevent from specifying fragile roofing materials which could present the opportunity for people to fall through. In the event of a designer unable to completely eliminate health and safety risks at the design stage, then the design and specification can still make a significant difference to actions carried out on site. It should emphasize ways in which work should be carried out in order to provide minimal health and safety risks to workers. The extra time spent that may result from a more detailed design process should be repaid through savings of time and money, and possibly lives throughout the construction process (Holt, 2001). Communication The variety of measures in place in order to reduce accidents and fatalities on construction sites which are evident from the ongoing literature review throughout this chapter. The successfulness of these measures however is dependant on effective communication, particularly when implementing training and education as it will dramatically improve work operatives understanding of health and safety risks. Hughes and Ferret (2007) suggest that many problems regarding health and safety on construction sites is a result of poor communication between management and the workforce within an organization, this often arises from ambiguities or possible accidental distortion. There are 3 basic methods of communicating health and safety information within the construction industry identified by Hughes Ferret (2007) as verbal, written and graphic. The most common of these methods is verbal communication via speech or word of mouth, this type of communication should only be used when providing simple instructions or information generally during meetings or training sessions, these are generally known as ‘tool box’ talks. In order for the implementation of verbal communication to be successful, the spokesperson needs to ensure that the messages they are trying to relay are clear and prevent confusion, the receiver should then demonstrate some form of understanding in order to prove they clear on what is expected of them before undertaking any work. This method of accident prevention can have its drawbacks and be a regular cause of accidents on construction sites if a verbal instruction has not been understood. Hughes and Ferret (2007) suggest that this may be as a result of a number of factors such as language and dialect barriers, use of technical language and abbreviations, background noise and distractions, hearing problems, ambiguities in the message, mental weaknesses and learning disabilities, lack of interest and attention. Despite the potential limitations that exist with verbal communications, there are also a number of benefits that it brings to construction sites if carried out successfully. Communication in this manner is less formal, enables the exchange of information to take place quickly and can be carried out close to the workplace (Hughes Ferret, 2007). Written communication involves the use of emails, reports, notice boards etc. in order to communicate information regarding health and safety. Potential problems involved with this form of communication are that the language used may be difficult to understand and affect the level of comprehension. Detailed reports may not be read properly due to time constraints and notice boards may be positioned in the wrong places with out of date and irrelevant information. The main benefit of using written communication, in particular emails, is that it provides a quicker method to ensure that messages get to all the people that may be concerned which is an important measure which could be implemented further to reduce accidents on construction sites (Hughes Ferret, 2007). Graphical communication is carried out through the use of photographs, drawings, posters and videos. This type of communication is often used to inform workers of health and safety information such as fire exits and HS propaganda. This is regarded as being a relatively effective method of communication as it has no barriers with regards to language or dialect and displays a simple message that can be remembered. The potential limitations regarding this procedure is that the graphics may very quickly become out of date or in the case of posters, be ignored (Hughes Ferret). Improvements in Technology A key measure in which to reduce accidents on construction sites is through the use of up to date technologies. This view is supported by (reference) who suggests that new technologies in construction sites are not only likely to help prevent accidents and injuries on construction sites but also improve the overall efficiency of construction projects. This view is also supported by Holt (2001) who suggests that keeping up to date with new technology can bring an added benefit to the industry and generally improve site conditions. The introduction of new technology may be in the form of improved software, software often gets up-graded quickly with new and improved packages that should be installed to benefit the industry. It may also involve improvements in technology such as the new Blackberry; this can incorporate cell phone capability and email connectivity into a single device that will benefit employers relaying safety messages quickly and directly to employees on site, therefore improving coordination between site operatives. New technology may also be in the form of site equipment and plant, for instance the use of mechanical systems such as hoists and lifts should be replaced instead of manual operations, this is not only likely to increase productivity on site but also prevent the likelihood of injuries such as back problems. The introduction of improved technologies into construction sites in an attempt to reduce accidents and injures is largely dependant on the level of training that accompanies it. Employers must be aware that productivity on site may not be at its peak during the period of change as new software and equipment requires training and adjustments to that of old technologies. However, if sufficient training is provided to accompany the new technology and software then employees will be able to harness the power of new technologies and provide numerous benefits to the construction industry. Risks Assessments Risk assessments are an important measure used to reduce HS risks on construction sites, they are a legal requirement of many HS legislations during the planning stage of a project so that plans can be put in place to control potential risks as assessed in Chapter 2 of this study. A risk assessment involves an examination of the potential risks that may cause harm to people which cannot be avoided through the design process of a project, the risk assessments should only identify the significant risks that apply to the construction project and ignore the trivial risks that are not likely to result in an accident or fatality. They are carried out in order for organisations to establish whether they have taken enough precautions or to identify if they could do more to prevent the likelihood of an accident or fatality on the construction site (HSE, 2006a). Risk assessments are used to decide on priorities and set objectives for eliminating hazards and reducing risks, if this is possible it is usually through selection and design of facilities, equipment and processes. However if they cannot be eliminated they are minimised by the use of physical controls or, as a last resort, through systems of work and personal protective equipment (Hughes Ferrett, 2007). ‘A hazard is something with potential to cause harm. The harm will vary in severity some hazards may cause death, some serious illness or disability, others only cuts and bruises. A Risk is the combination of the severity of harm with the likelihood of it happening.’ http://www.hse.gov.uk/pubns/indg275.pdf Hughes and Ferrett (2007) identifies two basic forms of risk assessments, these are ‘quantitative’, which involves risks given a numerical value and ‘qualitative’ which is the most common form of risk assessment in the construction industry which is based purely on personal judgement and then quantified as being either high, medium or low risk in terms of its severity. The HSE (2006a) identified the following 5 key steps in order to asses the risk in a workplace: Step 1: Identify the hazards Step 2: Decide who might be harmed and how Step 3: Evaluate the risks and decide on precautions Step 4: Record your findings and implement them Step 5: Review your assessment and update if necessary If these steps are followed by every construction organisation throughout the UK then it will make a big difference to reducing the number of accidents and fatalities on construction sites which is regarded as being the principal aim of risk assessments, this aim however is also dependant on the competence of people carrying out the risk assessment and also the communication of their findings. An example of a risk assessment form can be seen in Appendix 2. Health and Safety Culture HSE publication HSG 65, Successful Health and Safety Management Health and Safety Inductions Health and Safety Policies Health and Safety Policies are an important measure that are required by law for every organisation to produce. The can play a key role in reducing accidents and fatalities on construction sites. They have been assessed in greater detail in chapter 2, section 8.4. Managing Risks during construction The introduction of the CDM regulations have also placed more emphasis on managing risks during construction in order to target the high level of accidents and fatalities on construction sites. This measure involves creating a well established management system that controls the potential risks faced during a construction project and deciding what should be done about them. This may involve giving collective protective measures priority over individual measures to provide the biggest benefit to the health and safety of everyone involved. This may involve removing hazardous dust by exhaust ventilation rather than providing a filtering respirator to an individual worker (Rowlinson, 2004). It is therefore the role of a manager, such as the principal contractor to assess the most appropriate protective measures to use during the construction process and ensure that people under his command abide by these management decisions. Managing risks during construction may also be in the form of giving appropriate instructions to employees. This may involve making sure that all employees are fully aware of specific company policies, risk assessments, method statements, safety procedures, good practice, official guidance, and any legal requirements that they must follow (Holt, 2001). Personal Protective Equipment (PPE) It is the opinion of (make up a reference) that Personal Protective Equipment (PPE) should only be used as a control measure as a last resort to try to reduce accidents and fatalities on construction sites. This is due to the fact that it does not eliminate the hazard and will present the wearer with the maximum health and safety risk if the equipment fails. Hughes and Ferrett (2007) identify a number of limitations as to why PPE should only be used as a last resort such as the equipment only protects the person wearing it and doesn’t take into account the effects the risk may have on others working nearby; it relies on people wearing the equipment at all times which people do not often do; it must be used properly which requires training, this could result in a loss of time and productivity and it must be replaced when it no longer offers the appropriate levels of protection. Aside from these limitations the use of PPE still provides certain benefits to the industry and is an important measure to reduce, or at least prevent the level of accidents on construction sites. PPE enables workers to have immediate protection to allow a job to continue; in an emergency it can be the only practicable way of effecting rescue or shutting down plant; and it can be used to carry out work in confined spaces where alternatives are impracticable (Hughes Ferrett, 2007). The Construction Phase Plan The Health and Safety File The Construction Phase Plan and The Health and Safety File which were introduced by the CDM regulations both help to reduce accidents and injuries on construction sites. They have been discussed previously in Chapter 1, Section 7.2 in greater detail on the positive impacts they have on the construction industry. It is the opinion of the author that these measures to reduce accidents on construction sites should be reviewed periodically to ensure that they are still effective and to introduce new improvements to these measures. In the event of a serious accident or incident occurring on a construction site, then an immediate review of the risk control measures in place should be carried out to identify the problem and why it occurred. Cost of implementation of the CDM regulations 2007 The HSC has claimed that the CDM regulations are likely to save the construction industry  £2.7 billion, through reduced bureaucracy and a further benefit to the construction industry by up to  £3.2 billion by reduced loss of working time (Joyce, 2007), this however is likely to be the best case scenario, the HSC concluded that in the worst case scenario the introduction of the CDM regulations 2007 could cost the construction industry  £660 million (Joyce, 2007). The financial cost of implementing these measures of prevention through the CDM regulations may be regarded as costly to the industry; however it is the authors opinion the benefit of implementing theses regulations successfully and reducing the number of fatalities and accidents on construction sites is a small price to pay as it benefits the industry as a whole by the factors outlined below. This view is supported by Robert E McKee who commented that â€Å"Safety is, without doubt, the most crucial investment we can make, And the question is not what it costs us, but what it saves†. 4.6 Benefits of accident prevention The measures identified in section 4.1 above highlight the main factors that can assist in preventing accidents and fatalities on construction sites. The implementations of measures to prevent accidents are extremely worthwhile as they provide a number of benefits to the construction industry which are discussed below. 6.6.1 Cost in human suffering The cost in human suffering, physical pain and hardship resulting from death and disability is impossible to quantify (Holt, 2001). The accident and fatality statistics analyzed in chapter 3 provide the author with background knowledge that there are an alarming amount of accidents and fatalities within the construction industry each year. This is likely to have had a significant impact on the lives of workers and their families causing a considerable amount of disruption. This is one of the major reasons why these statistics need to be reduced and try to achieve a safer construction industry. 6.6.2 Moral Moral reasons stem from a developing public awareness that something needs to be done to raise the quality of life within the construction industry (Holt, 2001). It is becoming increasingly evident that the safety of workers within the construction industry is being put at risks for reasons such as potential increased profits. It is of the author’s opinion that this is morally wrong and should be prevented which in turn will benefit the construction industry as a result of fewer accidents. In order to increase workers moral within the industry (Holt, 2001) workers should be actively involved in accident prevention programmes, this is likely to increase the productivity of work and prevent weakened worker moral through a reduction in accidents on site. 6.6.3 Legal Legal reasons are contained in state law, which details steps to be taken and objectives to be met, and which carries the threat of prosecution or other enforcement action as a consequence of failure to comply (Holt, 2001). The prevention of fatalities is likely to reduce legal action faced by organizations which in turn is likely to reduce cost in terms of money and adverse publicity as there will be a reduction in the number of workers able to gain compensation. 6.6.4 Financial The benefit of accident prevention is likely to have a significant impact on financial reasons which will ensure the continuing financial health of a business and avoid the costs associated with accidents (Holt, 2001). These costs can be both direct cost such as production delays which include the cost of compensation as well as indirect costs such as management time spent on investigations and fines. Conclusion of chapter The analysis of measures to reduce accident and fatalities on construction sites along with the benefits that these measures bring, highlight the fact that a good safety record and document safety management systems can more than repay the time spent of achieving it. A reduction in accidents and fatalities through increased measures to prevent them will significantly reduce the problems identified in section 6.6 and therefore significantly benefit the construction industry as a whole. This chapter highlights many control systems and mechanisms that are in place to decrease the chances of accident and injuries within the construction industry, however Chapter Four: Methodology This chapter discusses the different methodological approaches for this study and expands on the outline methodology highlighted in chapter 1. Detailed accounts of the specific research strategies are also examined, highlighting the methods used to analyze and interpret the data collected. Each question chosen for the questionnaire will be examined stating why it was chosen, what it hoped to achieve, and how it relates to the research aim and objectives. Finally, the location of the study and methodological restrictions are also considered. Approach Several methodologies to assess the effectiveness, success and problems of CDM regulations have been used in the past, notably sample groups, influence network models, case studies and statistical analysis (reference). The case study approach analyses a very small number of duty holders using semi-structured surveys, and over a number of periods (e.g. quote people and times). Although this methodology can be detailed, results can be extremely unrepresentative. Resultantly, the sample group methodology was chosen for this study, which follows the same layout, but with a much larger number of duty holders. Academics such as (reference) and (reference) have used this type of methodology in the past. The sample group methodology was most appropriate for this study, as data was needed from multiple different duty holders in order to make comparisons and generalizations. Using influence network models was deemed less appropriate than a sample technique as this tended to concentrate on influences for poor health and safety rather than the effectiveness of the CDM Regulations 2007. Criteria for evaluating effectiveness In order to gain useful information it was important to understand what the outcome would be compared to (Moore, 2000), therefore, at this stage the ultimate outcome for measuring the effectiveness of the revised CDM regulations would be to measure the impact they have had on accident statistics on construction sites. This measure however takes a long period of time for changes to manifest themselves and enable a comparison to that of the CDM regulations 1994. As the introduction of the CDM regulations 2007 only came into force in April 2007, a number of different measures have been implemented throughout this study in order to measure the early effectiveness of the new CDM regulations. Table 7.1 below shows the steps taken with the required source of evidence to indicate that an early impact has been made. Effectiveness means the capability of producing an effect (www.wikepidia.org) and in this case, it can be assumed that with reference to this study the intended effect of the CDM regulations is to reduce accident statistics on construction sites. Table 7.1 Impact outcome of the revised CDM Regulations Step Outcome measure Indicative evidence of outcome 1 Duty holder awareness that CDM regulations have been revised Events and articles to launch the revised CDM Regulations 2 Duty holder obtains information about revised CDM Regulations Sales and downloads of the revised CDM regulations and guidance material 3 Duty holder acts internally on contents of revised CDM regulations Duty holder acknowledges clarity in the regulations and better known what is expected of them 4 Improvements in management and design practice appear Positive duty holder views on the improved flexibility in the fit of the revised CDM regulations to a wide range of contractual arrangements. Improved information flow including from the clients. Improved competence assessments. Improved communication, cooperation and coordination between duty holders. Improved health and safety files. Reduced bureaucracy and paperwork. Clients committed to ensuring the safe management of projects. Coordinators are perceived as adding value. 5 Improvements in risk management through good design apparent in specifications and drawings. More on-site hazards are eliminated and thus appear less frequently on drawings / specifications. More resid

Equity and Trusts: Barnes V Addy Second Limb

Introduction This paper examines the development and scope of accessory liability under the second limb of Barnes v Addy as it stands in both England and Australia. As to the law in England, the focus will be on the rearticulation of the principle of accessory liability under the second limb as stated in Royal Brunei Airlines Sdn Bhd v Tan. In particular, it will consider the extent to which the decision has reconciled inconsistencies in earlier authority and remedied those issues propounded to be inherent in the traditional formulation of the principle. At this stage, this traditional principle remains good law in Australia.However, as suggested in Farah Constructions Pty Ltd v Say-Dee Pty Ltd, there is potential for the English approach to be adopted in the Australian context. Such an adoption may be advisable in light of the judicial and extra-judicial commentary suggesting that the orthodox approach is in fact not properly aligned with equitable principles. The discussion of this possibility involves not only an assessment of the advantages and disadvantages of each approach, but also a determination as to the extent to which the separate application of each approach could result in a divergent outcome.The development of the second limb of Barnes v Addy in Australia- ‘knowing assistance’ The classic authority on the circumstances in which third parties will be held accountable for their involvement in a breach of trust or fiduciary duty is the English case of Barnes v Addy. It was in this case that Lord Selbourne LC articulated the much cited and analysed statement of principle that has come to form the modern law: †¦ trangers are not to be made constructive trustees merely because they act as the agents of trustees†¦unless those agents receive and become chargeable with some part of the trust property, or unless they assist with knowledge in a dishonest and fraudulent design on the part of the trustees. This statement has come to be understood as allowing liability to be imputed on a party in two distinct circumstances, where the third party either knowingly receives trust property, or assists with knowledge in a breach of trust or fiduciary duty.This paper seeks only to consider the latter. In what ostensibly remains the authoritative case on this second limb of Barnes v Addy in Australia, the High Court in Consul Development Pty Ltd v DPC Estates Pty Ltd, (‘Consul Development v DPC’) not unlike other cases at the time, focussed predominantly on the level of knowledge which would be sufficient to attract accessory liability in the circumstances before them.The primary question was not one of the dishonesty or otherwise of the actions of the third party, but of that third party’s knowledge of the dishonesty of the fiduciary. The majority, it seems, realised that the terms ‘constructive notice’ and ‘actual notice’ did not in themselves comprise the requisite sophisti cation for dealing with the matter of the knowledge of the third party.They instead expressed the required degree of knowledge within particular parameters, with neither Stephen J nor Gibbs J willing to extend these parameters to include a negligent failure to inquire on behalf of the third party. In Equiticorp Finance Ltd v Bank of New Zealand, Kirby P (in dissent) indicated support for the Consul test of knowledge, and attempted to clarify the judgement in Consul Development v DPC with reference to the decision in Baden, Delvaxs & Lecuit v Societe Generale pour Favoriser le Development du Commerce et de L’Industrie en France SA (‘Baden’).He equated the degrees of knowledge set out by the High Court in Consul Development v DPC with the first four categories as stated in Baden thereby confirming that both actual and constructive knowledge, but not constructive notice, would constitute the requisite degree of knowledge necessary to render a third party liable unde r the second limb of Barnes v Addy. Similar findings have been made in later cases where Consul Development v DPC has been declared authority on the matter, although such an explicit reference to the Baden scale is not always present.Conversely, other judges have found the judgement in Consul Development v DPC to be inconclusive, adopting a narrow interpretation of the judgement of Stephen J and restricting the requisite knowledge only to the first three categories of the Baden scale. This tendency toward a narrow approach increased following the decision in Royal Brunei Airlines Sdn Bhd v Tan (‘Royal Brunei’) as courts attempted to reconcile the UK and Australian lines of authority.However in other cases, such as Gertsch v Atsas it was held that that the acceptance of the first four Baden categories was synonymous with accepting a standard of honesty. Given the discordant state of the Australian authorities, the High Court took the opportunity in Farah Constructions Pt y Ltd v Say-Dee Pty Ltd, (‘Farah Constructions’) to clarify the Australian position on knowing assistance.Their Honours declared, in obiter, that Australian courts should continue to follow the decision in Consul Development v DPC, thereby continuing to see as necessary the requirement of a dishonest design on the part of the fiduciary, and subscribing to the proposition that where the third party’s knowledge falls within the first four categories of the Baden scale it will answer the requirement of knowledge under the second limb of Barnes v Addy.In what has been referred to as a â€Å"profound shift in the rules of judicial engagement† following Farah Constructions, lower courts have regarded themselves as obligated to follow the obiter of the High Court and have thus returned to an orthodox approach. However, the law in Australia is far from settled on this point and a case is yet to come before the High Court with the facts necessary to allow for a rec onsideration of the principles enunciated by the Privy Council in Royal Brunei. The development of the second limb of Barnes v Addy in England- ‘dishonest assistance’While in Australia the courts are returning to an orthodox approach towards accessory liability, in England, the courts are grappling with a reformulation of the principles under the second limb of Barnes v Addy following the decision in Royal Brunei. In this case, the Privy Council refocussed the relevant inquiry in cases concerning liability under the second limb of Barnes v Addy away from the third party’s knowledge of the trustee’s dishonesty, to the dishonesty of the accessory themselves.Consequently, the dishonesty (or lack thereof) of the trustee or fiduciary is irrelevant as it is the dishonesty on the part of the accessory that attracts liability. There is nothing new about the application of a dishonesty-based in inquiry into the liability of accessories to a breach of fiduciary duty , with Lord Nicholls suggesting that before the inquiry â€Å"donned its Barnes v Addy strait-jacket† judges hadn’t regarded themselves as confined to inquiries into the levels of knowledge of the accessory.It may even be said that the dishonesty-based inquiry had retained its place in contemporary law prior to Royal Brunei, and that it was merely obscured by the additional and more tedious requirement of determining the level of knowledge of the accessory. For example, in Agip (Africa) Ltd v Jackson Millet J stated: There is no sense in requiring dishonesty on the part of the principal while accepting negligence as sufficient for his assistant.Dishonest furtherance of the dishonest scheme of another is an understandable basis for liability; negligent but honest failure to appreciate that someone else's scheme is dishonest is not. This can be set alongside other cases which suggest that that the requirement of dishonesty on the part of the principle is in fact a compel ling reason not to require dishonesty on the part of the fiduciary, as they are an ‘accessory’ who merely needs to be is linked to the conduct of the principle. Millet J, however, seemingly wishes to see this principle extended, so that dishonesty is required on the part of both parties.The decision in Royal Brunei does not precisely echo this formulation of the dishonestly principle (Lord Nicholls ultimately went on to conclude that that the fiduciary need not be dishonest at all in order for the accessory to be held accountable), but instead clarifies and affirms a general principle in light of other commentary on the point. Consequently, Lord Nicholls in his judgement has set out what is necessary for the inquiry into the accessory’s dishonesty, stating that courts should look to determine whether the person acted â€Å"as an honest person would in the circumstances† in light of their actual knowledge at the time.He further explains that the question sh ould be approached objectively and indicates that the test is not one of the ‘reasonable person’. He seeks to clarify this test of dishonesty with the following examples: If a person knowlingly appropriates another’s property, he will not escape a finding of dishonesty simply because he sees nothing wrong in such behaviour†¦Honest people do not knowingly take other’s property†¦[or] participate in a transaction if he knows it involves a misapplication of trust assets to the detriment of the beneficiaries.Nor does an honest person in such a case deliberately close his eyes and ears, or deliberately not ask questions, lest he learn something he would rather not know, then proceed regardless. This passage, while meant to further explain the test for dishonesty, initially seems difficult to reconcile with later comments, where his Lordship makes explicit reference to the departure from the orthodox inquiry into degrees of knowledge, stating that the w ord â€Å"knowlingly† should be avoided and that the Baden scale was â€Å"best forgotten†.While it seems unproblematic to abandon the Baden scale of knowledge, commentators and courts alike have found difficultly in divorcing the concept of dishonesty from knowledge itself and the most recent authoritative decision on the point Barlow Clowes International Ltd v Eurotrust International Ltd (‘Barlow Clowes’) confirms that an inquiry into dishonesty does to some degree require an inquiry into the knowledge of the third party. Comparison of the English and Australian position One of the objectives of the court in Royal Brunei was to remedy some of the problems with the orthodox approach to accessory liability.Such problems were not only present in English courts, but have also plagued Australian courts and were not resolved in by the High Court’s affirmation of the knowledge-based test in Farah Constructions. Firstly, Lord Nicholls in Royal Brunei soug ht to realign the principles of accessory liability with equitable doctrines and focussed primarily on the conscience of the accessory themselves. In the orthodox approach, as expressed in Consul Developments v DPC, the inquiry is not into the state of mind of the accessory themselves but into the accessory’s knowledge of another’s state of mind.It has been suggested that the inquiry has thus been misplaced, and that although it results in an indirect finding of dishonesty on the part of the accessory, it is much further removed from equitable principles than the Royal Brunei approach. Lord Nicholls also sought to do away with the confusion surrounding the need for judges to distinguish between the different levels of knowledge, in particular constructive knowledge and constructive notice.However, as noted above, Lord Nicholls on several occasions makes reference to the knowledge of the accessory which is the reason that the degree to which the test of dishonesty is di vorced from an inquiry into knowledge has been questioned. However, what must be realised here is that the inquiry into knowledge that is embarked upon as part of the dishonesty based approach is different to that which was required under the knowledge based approach.This redirection for the knowledge inquiry was first considered in Twinsectra Ltd v Yardley where a difficulty arose in determining whether Lord Nicholls had intended for an objective or subjective approach to be taken to dishonesty. In the leading judgement, Lord Hutton tendered the â€Å"combined test† which required that the third party’s conduct be dishonest by the standards of the reasonable person as well as requiring an appreciation by the third party that by those standards his or her conduct was dishonest.This combined test endured much academic criticism and was seen as being inconsistent with the objective test enunciated by Lord Nicholls in Royal Brunei. The Privy Council, and in particular, Lo rd Hoffman (who was in the majority in Twinsectra Ltd v Yardley) had the opportunity in Barlow Clowes to clarify the comments made in Twinsectra Ltd v Yardley. It was stated that the majority in Twinsectra Ltd v Yardley had, in fact, always espoused a test in line with that which was conceptualised in Royal Brunei and it was commentators who had skewed this test into a different form.Despite the contempt that many commentators had for this account, the statement of a complete principle of dishonest assistance was applauded. Incorporated in this principle was the conclusion that the liability of the accessory was not dependant on a requirement for fraud or dishonesty on the part of the fiduciary, but depended solely upon whether the accessory was at fault. This is the converse position of the orthodox approach, whereby a third party can escape liability even where they know they are assisting in a breach of fiduciary duty, provided that the fiduciary was not acting dishonestly.Thomas J in Powell v Thompson held that protecting a person with a guilty conscience in this manner was not in line with equitable principles, and his consequent assertion that the conduct of the principle should be irrelevant was later approved in Brunei. One significant consequence of the divergent approaches in what are currently the UK and Australian positions on this matter would be the substantial difference in outcome in cases where the fiduciary had acted innocently.Provided that all other requirements are satisfied, in the UK the accessory would be held liable however in Australia they would not. Further to this, while some Australian judges have found it difficult to distinguish the traditional approach from that of Royal Brunei, the fact that the orthodox reliance on the Baden scale restricts investigations only to knowledge and not to other attributes or types of conduct, lends weight to the argument that in certain circumstances there would be divergent outcomes of the two ap proaches. Perhaps, it is best to take FarahConstructions as authority on this point, with the High Court in this case imputing that one of the reasons it is directing courts to treat the approaches distinctly is due to the potential for the different formulations of the principle to lead to different results. Conclusion In line with the arguments presented in this paper, it is submitted that the approach to accessory liability espoused in Royal Brunei is preferable to that which was propounded in Consul Development v DPC due what is an ostensible irreconcilability of the latter case with conventional equitable doctrines.This assertion turns on the manner in which the judges in Consul Development v DPC dealt with the requirement for a dishonest and fraudulent design on the part of the fiduciary as per Lord Selbourne LC in Barnes v Addy. Like many other cases at the time, Consul Development v DPC was concerned more with attempts to define what Lord Selbourne had meant by a â€Å"dish onest and fraudulent design† rather than questioning whether it was an appropriate criterion for the imposition of liability on a third party.Consequently, when it came to fulfilling equity's calls as to inquiries into the conscience of the defendant, courts were misguided and came to focus instead on the conscience of the principle. The arguments in favour of the retention of this approach are largely set out in reliance on the requirement that the third party be implicated in the conduct of the fiduciary. However, as suggested in Royal Brunei, assistance in itself should be enough to draw a sufficient connection between the accessory and the fiduciary.It was this realisation which enabled Lord Nicholls in Royal Brunei to reformulate the principle under the second limb of Barnes v Addy so as to redirect inquiries into the minds of defendants to their appropriate place in accordance with equitable principles. Although the adoption of the approach in Brunei may not result in ma jor shift in the law of accessory liability in Australia, it’s contemplation of circumstances in which the third party can be held liable even where the fiduciary is innocent would at the very least resolve the seemingly inequitable approach to this point as it stands in current Australian law. Bibliography Articles/Books/Reports Aitken, L, ‘Unforgiven: Some thoughts on Farah Constructions Pty Ltd v Say-Dee Pty Ltd' (2007) 29 Australian Bar Review 195 Andrews, G, ‘The redundancy of dishonest assistance’ (2003) 8 Conveyancing and Property Law Journal 1 Birks, P, ‘Misdirected funds: Restitution from the Recipient’ (1989) Lloyds Maritime & Commercial LQ 296 Chambers, R, ‘Knowing Receipt: Frozen In Australia' (2007) 2 Journal of Equity 40 Cope, M, ‘A comparative evaluation of developments in equitable relief for breach of fiduciary duty and breach of trust' [2006] QUT Law Journal 7Cope, M, Equitable Obligations: Duties, Defences and Rem edies (2008), Lawbook Co, Pyrmont. Hoffman, L, ‘The Redundancy of Knowing Assistance’ in Birks, P (ed), The Frontiers of Liability, (1994) vol 1, Oxford University Press, New York Dietrich, J & Ridge, P †The receipt of what? ‘: questions concerning third party recipient liability in equity and unjust enrichment' [2007] Melbourne University Law Review 3 Harding, M & Malkin, I, ‘The High Court of Australia’s Obiter Dicta and Decision-Making in Lower Courts’ 34 Sydney Law Review 2 Kirby, M, ‘Equity's Australian Isolationism' (2008) 8 Melbourne University Law Review 2Kiri, N, ‘Recipient and accessory liability- where do we stand now? ’ (2006) 21 Journal of International Banking Law and Regulation 11 Loughlan, P L, ‘Liability for Assistance in a Breach of Fiduciary Duty’ (1989) 9 Oxford Leg Studies 260 Mason, K, ‘President Mason’s Farewell Speech’ (2008) 82 Australian Law Journal 11 Ong, D, à ¢â‚¬ËœThe Knowledge or Role that makes a Person an Accessory under the Barnes v Addy Principle’ (2005) 17 Bond Law Review 6 Radan, P ; Stewart, C, Principles of Australian Equity ; Trusts, (2010), LexisNexis Australia, ChatswoodSullivan, G R, ‘Framing an Acceptable General Offence of Fraud’ (1989) 53 Journal of Criminal Law 92 Thomas, S B, ‘Knowing Receipt and Knowing Assistance: Where do we stand? ’ (1997) 20 UNSW Law Journal 1 Thornton, R, ‘Dishonest Assistance: Guilty Conscience or Guilty Mind? ’ [2002] 61 Cambridge Law Journal 3 ? Case Law Aequitas v AEFC [2001] NSWSC 14 Agip (Africa) Ltd v Jackson [1990] Ch 265 Air Canada v M;L Travel Ltd (1993) 108 DLR (4th) 592 Attorney-General v Corporation of Leicester (1844) 7 Beav 176 ASIC v AS Nominees (1995) 133 ALR 1Baden Delvaux ; Lecuit v Societe Generale pour Favorisier le Developpment du Commerce et de l’Industrie en France SA [1992] 4 All ER 279 Barlow Clowes International Ltd v Eurotrust International Ltd [2006] 1 All ER 333 Barnes v Addy (1874) 9 Ch App 214 Beach Petroleum NL v Johnson (1993) 115 ALR 411 Belmont Finance Corporation Ltd v Williams Furniture Ltd (No 2) [1980] 1 All ER 393 Carl Zeiss Stiftung v Herbert Smith ; Co (No 2) [1969] 2 Ch 276 Consul Development Pty Ltd v DPC Estates Pty Ltd (1975) 132 CLR 373 Corporate Systems Publishing Pty Ltd v Lingard [No 4] [2008] WASC 21 Coshott v Lenin [2007] NSWCA 153Digital Cinema Network Pty Ltd v Hepburn (No 4) [2011] FCA 509 DPC Estates v Grey [1974] 1 NSWLR 433 Eagle Trust plc v SPC Securities Ltd [1992] 4 All ER 489 Eaves v Hickson (1861) 30 Beav 136 Equiticorp Finance Ltd v Bank of New Zealand (1993) 32 NSWLR 50 Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 Flyer v Flyer (1841) 3 Beav 141 Gertsch v Atsas(1999) 10 BPR 18,431 John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd; Walker Corp Pty Ltd vWhite City Tennis Club Ltd (2010) 241 CLR 1 Karak Rubber Co Ltd v Burden [1972 ] 1 All ER 1210 Kation Pty Ltd v Lamru Pty Ltd (in liq) (No 2) [2009] NSWCA 428Lipkin Gorman v Kapnale Ltd [1992] 4 All ER 451 Maher v Millenium Markets Pty Ltd [2004] VSC 174 NCR Australia Pty Ltd v Credit Connection Pty Ltd [2005] NSWSC 111 New Cap Reinsurance Corporation Ltd v General Cologne Re Australia Ltd [2004] NSWSC 781 Ninety Five Pty Ltd in liq v Banque Nationale de Paris [1988] WAR 132 Powell v Thompson [1991] NZLR 597 Royal Brunei Airlines Sdn Bhd v Tan Kok Ming [1995] 2 AC 378 Selangor United Rubber Estates Ltd v Cradock (No 3) [1968] 1 WLR 155 Twinsectra Ltd v Yardley [2002] 2 AC 164 Voss v Davidson & Ors [2002] QSC 316 Yeshiva Properties No 1 Pty Ltd v Marshall (2005) 219 ALR 11

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