On 25th April 2013, despite a difficult ride through the House of Lords, the reform abolishing civil liability for health and safety regulations made under section 15 of the Health and Safety at Work Act 1974 received Royal Assent. It will come into force at a time of the Secretary of State’s choosing.

The genesis for the reform is a desire to limit employers’ liability to situations where the employer was at fault. The Govern-ment’s stated purpose is "to send a clear and effective mes-sage" of "reassurance" to business, to overcome a fear of being sued. Conversely, the Government insists that core health and safety standards are not undermined by this measure. All the regulations remain in force and breaches can lead to criminal sanctions.

The regulations themselves implement various EU directives on health and safety. It remains possible to bring civil actions against emanations of the state for breach of directives. Thus NHS Trusts, Government Departments, Local Authorities et al. will find that they are sued for breaches of EU Directives and not domestic Regulations.

‘Emanation of the state’

When is a body is an ‘emanation’ of the state? The ECJ consid-ered this in Foster v British Gas [1991] ICR 84. The answer which came back was ‘a body… which has been made respon-sible, pursuant to a measure adopted by the state, for providing a public service under the control of the state and has for that purpose special powers beyond those which result from the nor-mal rules applicable in relations between individuals." Whilst a government department clearly falls into one category and a limited company into another, other bodies may have character-istics of both. There may well be arguments along the lines of those in London and Quadrant Housing Trust v Weaver [2010] 1 W.L.R. 363 where it was argued successfully that the housing trust’s functions were such that it was to be considered a public authority for the purposes of the Human Rights Act 1998. As discussed below, in future claimants may well have a strong incentive to argue that a particular defendant is an emanation of the state.

Strict liability

The first and most obvious point of the reform is that employees will no longer be able to rely on any of the strict liability provi-sions in health and safety regulations, such as Regulation 5(1) of the Provision and Use of Work Equipment Regulations and Regulation 5(2) of the Workplace (Health Safety and Welfare) Regulations. This means that the Mr Starks of this world will, in future, have to show not simply that their bicycles were defec-tive, causing injury, but that this resulted from a failure by their employers to take reasonable care.

Where the Defendant is an emanation of the state, there will be arguments about whether the EU Directives themselves impose strict liability. Take for example paragraph 2.8 of Annex I to the European Directive on Work Equipment (89/655/EEC) which deals with the provision of guards to moving parts of equipment: paragraph 2.8 of Annex I states "Where there is a risk of mechanical contact with moving parts of work equipment which could lead to accidents, those parts must be provided with guards or devices to prevent access to danger zones…" (authors’ emphasis). Breach of this paragraph looks to be a question of strict liability. Directives which have rarely fea-tured in personal injury litigation will be mined for duties which impose a higher standard than the common law.

Liability under Regulations and Directives is different to the common law

It’s not only situations where employers have traditionally relied on strict liability that will be affected. There have been many non-strict liability cases where claims under health and safety regu-lations have succeeded, but where common law claims have failed.

Blair v Sussex Police [2012] EWCA Civ 633 is just one such example. The claimant policeman was injured whilst participat-ing in off-road motorcycle training. He was wearing standard issue boots. The claimant’s case was that, under the Personal Protective Equipment at Work Regulations, stronger motocross boots ought to have been provided. The defendant argued that it would not be sensible to wear motocross boots during the train-ing, as, in real life, police officers would be wearing standard issue boots as they would need to be able to walk around. The Court of Appeal held that motocross boots would have con-trolled the risk of injury better than the standard issue boots. It was not other than "reasonably practicable" to provide them. Longmore LJ (with whom the other Lord Justices agreed) con-tinued that:-

(T)his is not to say that the Chief Constable was in any way neg-ligent at common law. Likelihood or foresight of injury does not come into the matter. Nor is it of any relevance to consider whether it would be sensible (as opposed to impracticable) to provide boots such as motocross boots to trainees who would be unlikely to be wearing them in the course of their operational duties as police constables. The 1992 Regulations do not ad-dress matters of that kind. This is a sea-change from the old concepts of common law negligence. Whether that is a good or bad thing is not for this court to say, since the 1992 Regulations are now the law of the land.

Hide v The Steeplechase Company (Cheltenham) Limited [2013] EWCA Civ 545 is further very recent example. A jockey was seriously injured near the first hurdle of Cheltenham race course. His horse stumbled on landing, and careered to the right towards a fence. The claimant fell off the horse, hitting a fence upright. The fence was designed to contain loose horses and its uprights were robust.

The claimant’s case was that the hurdle was too close to the fence upright, and the upright itself was not sufficiently padded and/or to unyielding. He argued that the hurdle and guard rail were not "suitable" under Regulation 4 of the Provision and Use of Work Equipment Regulations. The claim failed at first in-stance, the judge holding that "suitability" required consideration of the common law concept of "reasonable foreseeability", and that the (1) that the way in which the claimant was injured was very unusual and (2) that the defendant had abided by all the requirements of the British Horseracing Association and could not be expected to do more.

The Court of Appeal commented that "those factors might once have excused a defendant in a case brought at common law… but the Directives and therefore the Regulations exist in a world different from the common law". But following Robb v Salamis [2006] UKHL 56, the defendant could avoid liability only if he could show the accident was due to unforeseeable circumstanc-es beyond its control, or to exceptional events the consequenc-es of which could not be avoided.

Interpreting Directives

Courts have spent 20 years providing authority on the interpreta-tion of health and safety regulations, many of which used ex-pressions which were already well recognised in UK law. When it comes to emanations of the state, European Directives fre-quently use different language which has not been subject of the same judicial scrutiny and interpretation. The case of Sussex Ambulance NHS Trust v King [2002] EWCA Civ 953 illustrates the point. The claimant was an ambulance man who, with a col-league, had to carry an elderly man down a narrow, steep stair-case with a bend in it using a carry chair. In the process he in-jured his back. During trial it became apparent that the only al-ternative way of getting the patient out was by calling the fire brigade, removing the first floor window and using a crane. Reg-ulation 4 of the Manual Handling Operations Regulations 1992 was pleaded, as was Article 3 of the Manual Handling Directive 1990 (90/269/EEC). Regulation 4(1) starts "Every employer shall – (a) so far as reasonably practicable, avoid the need for his employees to undertake any manual handling operations at work which involve a risk of their being injured". Article 3, by contrast, starts: "(1) The employer shall take appropriate organi-sational measures, or shall use the appropriate means, in partic-ular mechanical equipment, in order to avoid the need for manu-al handling of loads by workers." The question is whether ‘reasonably practicable’ is the same as taking ‘appropriate or-ganisational measures’ or using ‘appropriate means’. Whilst the Court of Appeal neatly side-stepped this question in King by finding that it was neither ‘reasonably practicable’ nor ‘appropriate’ in the circumstances of the case to involve the fire brigade, it is likely to be confronted with cases which will require interpretation in order to give clarity to different European lan-guage and concepts.

Burdens of proof and evidence

As noted above, the regulations remain in force, and the Gov-ernment considers, should inform the standards the court would expect of the reasonable employer, just as breaches of statutory duties have often been pleaded as particulars of negligence too.

A very real issue arises about burdens of proof. At present, where health and safety regulations impose liability subject to "reasonable practicability" – for example the duty to keep work-place floors clear from trip and slip hazards in Regulation 12(3) of the Workplace (Health, Safety and Welfare) Regulations 1992 – it has been for the employer to plead and prove the defence. All the claimant has been required to do is prove he slipped or tripped on the hazard. Will this be the case in the future? Is the presence of a slip or trip hazard on the floor such as a small amount of water really strong prima facie evidence of negligence?

The courts may answer this by holding that, given the employer remains under a duty to look for, assess and reduce workplace risks, albeit not actionable by the claimant, the common law re-verses the burden of proof in employers’ liability cases, using the doctrine formally known as res ipsa loquitur and by analogy with Ward v Tesco Stores Limited (1976) 1 WLR 810. It seems un-likely though, that there will be a blanket approach to all the du-ties in the regulations in all situations. In some cases, the exist-ence of a danger in the workplace will call for an explanation by the employer. But in others, particularly where a hazard is transi-tory, or an accident occurs in a particularly unusual way, it will not. One way or another, we will be leaving many aspects of the "different world" of health and safety regulations behind.

It is unclear who bears the burden of proof under EU Directives and whether they shift in the burden of proof onto the employer. This is a question which will undoubtedly have to be considered by the courts.

Directives and the common law

Another interesting argument is that Article 118A of the Treaty of Rome provides that member states of the EU must encourage improvements as regards the health and safety of workers and maintain improvements already made. The preamble to the Framework Directive states that the Directive does not justify any reduction in levels of protection already achieved in Member States. Thus Waller L.J. said in Stark v Post Office [2000] I.C.R 1013 that the Directives recognise that if Member States already impose obligations higher than those minimum obligations sought to be imposed by the Directives, those higher obligations should be maintained. Given that every claim against employers will plead negligence, it could be argued the courts should ap-proach the common law in such a way as to maintain pre-existing standards. That may well lead to the development of a quasi-strict liability at common law in relation to issues such as defective equipment.

Conclusions

The abolition of civil liability for health and safety regulations is unlikely to reduce the risk of being sued. At least in the short-term, litigation is likely to increase as the courts explore and set out the relationship between the large body of established case law under the regulations and the common law. Making the claimant have to prove fault in all cases may even prove more expensive, if cases proceed to trial which, previously, would have settled early given strict liability provisions. European law is likely to be encountered far more frequently in our courts and there will be interesting arguments about construction, interpre-tation and meaning of European concepts. It is arguable that the ghost of strict liability will continue to haunt the system.

The whole area of employers’ liability involves the political ques-tion of how the risk of accidents at work should be allocated be-tween employers and employees. This reform alters that bal-ance, tilting it towards employers. In the process, it also puts more burden on the taxpayer at large, as it is, of course, the state who ends up paying via the NHS and in benefits where an injured employee does not succeed against his employer. Mean-while the law of unintended consequences lives on.