An important change in employer’s liability law took effect on 1st October 2013. Until that date, section 47(2) of the Health and Safety at Work etc. Act 1974 (“the 1974 Act”) created a presumption that breach of health and safety regulations would be actionable, i.e. would sound in damages in an action for breach of statutory duty. An amendment introduced by section 69 of the Enterprise and Regulatory Reform Act 2013 has reversed the presumption. Section 47(2) and (2A) now read as follows:

“(2) Breach of a duty imposed by a statutory instrument containing (whether alone or with other provision) health and safety regulations shall not be actionable except to the extent that regulations under this section so provide.

(2A) Breach of a duty imposed by an existing statutory provision shall not be actionable except to the extent that regulations under this section so provide (including by modifying any of the existing statutory provisions).”

For accidents occurring from 1st October, injured employees will therefore ordinarily have to advance their claims in negligence and breach of the implied term in the contract of employment to take reasonable care for the employee’s safety.

In many cases, it will remain possible for injured employees to rely on statutory duties as relevant to or even as conclusively establishing the appropriate standard of care in negligence. If Parliament has mandated a particular step then it is a step which a reasonable employer should take. Such evidential use of health and safety regulations has been recognised by the courts since at least Lochgelly Iron and Coal Company Ltd v M’Mullan.1 The amendment will not change that.

The change is nonetheless an important one. Many regulations have been interpreted as imposing duties stricter than would be consistent with the law of negligence. In Stark v Post Office, 2 the claimant was a postman injured when the brake stirrup of his bicycle failed and he was thrown over the handlebars. The bicycle had no visible fault before the accident and the employer was not guilty of negligence. The employer was nonetheless liable for a failure to maintain the bicycle under the Provision and Use of Work Equipment Regulations 1992. The obligation to maintain was an obligation to achieve the result of having the work equipment in good condition and it was no defence to have taken all reasonable steps to that end. Without a right to rely directly on the breach of the regulation, therefore, Mr Stark could not have succeeded.

The change is a controversial one. It may work hardship in some cases. If an employer provides an employee with defective work equipment, many will feel that the risk should be with the employer and not the employee. A sympathetic judiciary may be able to make creative use of res ipsa loquitur. Ward v Tesco3 effectively reversed the burden of proof in cases arising from slips by members of the public in shops and it is not impossible that similar assistance might be provided in some cases to injured employees.

Many modern health and safety regulations of course have a European origin. They are intended to implement the United Kingdom’s obligations under the Framework Directive (Directive 89/391/EEC) and various subsidiary directives. One potential route of challenge may be that, shorn of their actionability, the regulations made pursuant to European directives no longer effectively implement them. If civil liability for breach is necessary for effective implementation then at least against emanations of the state an injured claimant could rely directly on the terms of the directive. The difficulty with that argument, however, may be that civil liability for breach is not an essential remedy for effective implementation. Breach of the regulations of course remains a criminal offence so prima facie there is a sanction for breach. And civil liability for breach is not an obvious concept for all Member States. Some countries do not have tort liability for workplace injuries but rather a no fault compensation scheme or enhanced social security benefits. A Commission study of the implementation in national law of the various workplace directives hardly touches the question of compensation for breach.4 It is therefore far from obvious that the amendment to section 47 impairs the effectiveness of the implementation of the directives.

Proponents of the reform may reasonably rely on the highly technical way in which health and safety regulations have come to be interpreted. Distinctions are introduced which may be justifiable on the basis of the words used and the legislative history, but sometimes seem to make the success or failure of the claimant’s case depend on factors far removed from how well or badly the employer conducted itself. Two recent Court of Appeal decisions demonstrate the technicality of the area. In Hide v Steeplechase Co (Cheltenham) Ltd,5 a jockey was injured when he came off his horse and hit a post supporting the rail around the course. His case was that the post was unsuitable work equipment so that liability could be established under the Provision and Use of Work Equipment Regulations 1998. In the 1998 Regulations, suitable is defined as “suitable in any respect which it is reasonably foreseeable will affect the health or safety of any person.” “Reasonably foreseeable” is a concept very familiar to common lawyers from the law of negligence and is a phrase considered in a substantial body of case law. The judge applied the well recognised concept of reasonable foreseeability, no doubt assuming that if Parliament used familiar words it intended them in their familiar sense. He dismissed the claim. The Court of Appeal held he was wrong to do so. Reasonable foreseeability had in this context to be understood against the European background to the legislation. Properly understood, an event is not reasonably foreseeable if it is an occurrence due to unforeseeable circumstances beyond the defendant’s control or is an occurrence due to exceptional events, the consequences of which were unavoidable despite the exercise of all due care. The defendant could not prove these matters. The accident was therefore held to be reasonably foreseeable and the equipment consequently unsuitable. The claimant’s appeal succeeded. And in Willock v Corus UK Ltd,6 the Court of Appeal held that the Provision and Use of Work Equipment Regulations 1998 applied where the unsuitability of the equipment was that its arrangement caused those using it to reach and stretch and thus develop back pain.