We consider the impact of s.69 Enterprise and Regulatory Reform Act 2013, which makes it impossible in most cases to bring a civil claim for breach of health and safety Regulations.
The section came into force on 1 October 2013 and will affect any claim where the breach occurs on or after that date.
Prior to the change, s.47(2) Health and Safety at Work etc Act 1974 conferred a civil right of action unless the Regulations expressly provided otherwise. Section 69 amends s.47 to reverse the position, abolishing civil liability for breach of health and safety Regulations unless further regulations are made which expressly allow it.
We are entering a radically different legal environment from that which we have known for many years. Claimants will, in most circumstances, have to prove common law negligence to be able to succeed. They will have to prove that the employer has breached its duty of care towards the employee.
It will be necessary to return to largely ignored common law duties such as: the duty to provide a safe place of work and safe system of work; the duty to provide safe plant and equipment; the duty to provide competent staff; and the duty to provide supervision and training. Historic case law considering each of these areas will be reviewed and applied and in each case the question will be: has the employer behaved as a reasonable and prudent employer should?
The Employer’s Liability (Defective Equipment) Act 1969, a statute largely ignored in era of the Provision and Use of Work Equipment Regulations 1998 (PUWER), will become an important weapon for claimants once again. Under the Act, if an employee is injured by defective equipment, an employer cannot avoid liability by arguing that the defect is the fault of a third party supplier.
The Regulations remain in force; breach may give rise to criminal prosecution and the duties will certainly be referred to when parties argue about just what should be expected of a reasonably prudent employer, but it is unquestionably the case that claimants have lost an extremely potent line of attack.
It seems likely that the obligation to prove negligence will have the following effects:
- Make claims more difficult to prove and easier to defend meaning...
- Fewer may be brought, but...
- Those that are brought will incur greater legal costs.
- Far less certainty as to whether there is liability or not in any individual case.
- The need for fresh judicial guidance.
However, no-one can predict accurately at this stage how civil litigation will change and quite how the courts will react. Lawyers will be scanning the horizon for the first judicial decisions.Of course, a change of government may reverse the impact of s.69. Until then, lawyers will need to start thinking very differently about civil claims.
The Government has introduced one specific exception. The Management of Health and Safety at Work Regulations 1999 have been amended to allow new mothers/pregnant workers to bring a civil claim for breach of those Regulations which impose specific duties on employers in relation to such employees.
In addition, there is an argument, which may be tested in due course, that individuals employed by "emanations of the state" such as local authorities and government departments, are entitled to bring claims directly against their employers for breach of the EU Directives themselves, relying on the doctrine of "direct effect". If so, a peculiar two tier system could develop, with public sector employees in a more advantageous position than those in the private sector.
Two recent Court of Appeal decisions usefully illustrate the potential impact of this change. In both cases, the Defendant was found to be in breach of a health and safety Regulation, and so liable, but was found not to be negligent:
- Willock and others v Corus UK Ltd [17.05.13]
Crane drivers employed by the Defendant developed back pain as a consequence of the positioning of the crane controls. The employer had not been negligent: it had evaluated the risk and consulted an ergonomist who had advised on modifications to the controls. This proposed change had been put to the workforce, but they had rejected it. The employer had, the Court found, acted "reasonably" in not imposing a change in circumstances where the risk of injury was low and the proposed change had been rejected by the workforce. It was, however, in breach of Regulation 17(2) of PUWER, which required employers to "ensure that no control for work equipment is in a position where any person operating the control is exposed to a risk to his health and safety." There was a risk, so there was breach of the Regulation.
2. Hide v The Steeplechase Company (Cheltenham) Ltd and others [22.05.13]
A jockey was injured when he fell from his horse during a race and struck a railing on the outside perimeter of the track. The owners of the racecourse had not been negligent in the design of the track; indeed they had taken considerable effort to ensure the design was safe. They were, however, in breach of Regulation 4 of PUWER, which required work equipment, a term which encompassed the rail, to be "suitable for the purpose for which it is used or provided." The Regulation went on to define "suitable" as meaning "suitable in any respect which it is reasonably foreseeable will affect the health and safety of any person." The Defendant argued that it was not "reasonably foreseeable" that such an accident would occur, and the trial Judge agreed, adopting the common law interpretation of "reasonable forseeability." That was an error, said the Court of Appeal. You cannot import common law concepts when interpreting health and safety Regulations. Having regard to the European Directive on which the Regulation was based, the Defendant could only avoid liability if it could show that the accident was due to unforeseeable circumstances beyond its control or unforeseeable events the consequences of which could not be avoided.
It seems very likely that both of these claims would fail if the events had taken place after 1 October 2013 and they provide a helpful indication of the way personal injury litigation may have to change in the future.