The Government's proposed amendment of Section 47 of the HSWA through the Enterprise and Regulatory Reform Bill is turning out to be a highly contentious change.

Currently section 47 (2) of the HSWA states that "Breach of a duty imposed by health and safety regulations...shall, so far as it causes damage, be actionable except in so far as the regulations provide otherwise."

In other words, an injured Claimant can currently seek compensation when the Defendant's breach of a statutory duty caused his accident. The injured Claimant doesn't have to prove any breach of statutory duty though - he can make his claim in negligence. Typically a Claimant will allege both, in other words he will allege that a Defendant (particularly a Defendant who is/was his employer) was negligent for failing to do x, y, and z and additionally was in breach of a number of duties imposed by health and safety regulations.

It is also typical for there to be considerable overlap between the allegations. For example, it may be alleged that the Defendant was in breach of regulation 4(1)(a) of the Manual Handling Operations Regulations 1992 which requires an employer to avoid (so far as is reasonably practicable) the need for his employees to undertake any manual handling operations at work which involves a risk of their being injured. There will also be an allegation that the Defendant was negligent for failing to avoid the need for the Claimant to undertake the task which involved a risk of injury.

Regulations generally require something to be done or not done, the doing or not doing of which would also be a legitimate negligence allegation.

The new provisions, if passed (and presently it seems likely that they will be), will make clear that a breach of duty imposed by regulations will not be actionable unless the regulations expressly provide for that to be the case. In other words, injury claims post reform will generally stand or fall based on whether or not a claimant can establish, on the balance of probabilities, that a defendant was negligent.

There is already much overlap between statutory breach allegations and allegations in negligence and where that is the case the proposed reform will have little practical impact.

However, Claimant's lawyers are vociferously arguing that the change will significantly increase the work Claimant's solicitors will have to do and therefore increase the cost of claims. That seems to us a complete nonsense - the reality is that negligence is always pleaded. Limiting the claims to allegations of negligence will have no impact upon what needs to be done by a Claimant to prepare and advance his caseThey also argue that huge numbers of claims will be shut out by this change This also seems to us to be without substance.

We have given careful consideration to this last objection by Claimants' lawyers.

Most of the health and safety regulations do not impose strict liabilities because a Defendant's duties are usually qualified by the words "reasonably practicable". In other words a Claimant can say you didn't do x, y and z which is a breach of statutory duty. But a defendant can in its defence then say it wasn't reasonably practicable to do more because...

Strict liability effectively means that if a claimant establishes the elements of a breach of legislation then liability attaches regardless of the reason for the failure.. The most notable example of that in injury claims is an employers' liability for defective equipment.

It is certainly the case that many claims brought by employees against their employers allege a breach of the Provision and Use of Work Equipment Regulations 1998 (PUWER). Under regulation 4, every employer, "shall ensure that work equipment is so constructed or adapted as to be suitable for the purpose for which it is used or proved". The wording is prescriptive and there is no reasonable practicality about the obligation - if equipment isn't suitable and that causes injury, the employer is liable to the claimant.

Inevitably, the strict nature of this obligation has been challenged from time to time, particularly where an employer has not actually been responsible for failure of equipment that has caused injury.  In 2000, the Court of Appeal considered Stark -v- Post Office. The brief facts were that the claimant (a postman) was injured when the front brake of a bicycle provided to him by him employer for his work, broke. Part of the brake lodged in the front wheel causing the wheel to lock, tipping him over the handlebars. The failure of the brake was attributed either to metal fatigue or a manufacturing defect which could not have been discovered even on a rigorous examination. The Post Office had not been negligent but was liable because of the strict wording of what was then the 1992 PUWER (the pertinent wording is unchanged in the 1998 PUWER).

If the proposed change is implemented Claimants' lawyers have assumed that a similar case would be decided differently. However, in our view this would probably not be the case.

If Stark had not been a strict liability case but one pursued in negligence, then the Claimant would surely have relied on the Employers' Liability (Defective Equipment) Act 1969. The proposed reform remember doesn't affect statutory liability in injury claims where the Act or Regulation specifically provides for there to be liability. The 1969 Act makes clear that where an employee suffers personal injury in the course of his employment in consequence of a defect in equipment provided by his employer for the purposes of the employer's business and the defect is attributable wholly or partly to the fault of a third party (whether identified or not) then the injury, "shall be deemed to be also attributable to the negligence on the part of the employer."

So, if Stark were determined today, unless the Claimant pleaded res ipsa loquitur (see below) the Court would need to reach a view (on the balance of probability) whether that particular accident had to any extent probably been caused by the negligence of someone other than the employer. Only if the defect was not someone else's fault at all would the claim have failed and maybe that would have been the case if the Court had then gone on to determine that the cause of the brake failure was metal fatigue rather than manufacturing defect.

The number of cases where a morally blameless employer is sued, and an equipment defect causing injury isn't going to be attributed to fault on the part of that employer or someone else will in our view be negligible. Claimants will surely put their cases post-reform on the basis that there must have been negligence by someone or there wouldn't have been an accident (the res ipsa loquitur principle) and that will shift the burden of proof to a defendant to show that the defect wasn't due to anyone's negligence. If the Defendant cannot discharge that burden (and it would be tough in most cases to show no one was at fault to some extent) then the employer will still be liable. A Claimant won't need to add potentially culpable parties and his claim will not be made more complex. It will be (as it is now) up to the employer to decide whether in these circumstances he can, or wishes to, claim a contribution or indemnity for the compensation he is paying from another party but that is an issue with which a Claimant would not be concerned.

In a nutshell, despite the hue, cry and hyperbole from Claimant's solicitors our view is that this change will actually have little impact in practice.

However the heated debate about the proposal is likely to continue through the parliamentary process. Further details on the Bill are available on the Parliamentary website.