The last edition of Casualty Aware touched on what was then the Enterprise and Regulatory Reform Bill which is now law. Section 69 of the Act deals with civil liability arising from breach of statutory duty and came into effect on 1 October 2013. It triggers a fundamental change to the basis upon which employees can bring civil claims for compensation against their employers.
At present, civil liability in employer’s liability claims is almost exclusively determined by reference to breach of statutory regulations. The relevance of the common law has been very much subsumed by the higher duties imposed by statutory regulation than the corresponding common law duties.
With effect from 1 October 2013 claims can no longer be brought based upon allegations of breach of statutory duty. Claims will now only succeed if the employee can demonstrate on the civil burden of proof (balance of probabilities) that his employer has been negligent. S69 is not retrospective in application. It will only apply to accidents that occur on or after 1 October 2013.
S69 amends the provisions of S47 (2) Health and Safety at Work Act 1974. S69 (3) states:
(2) Breach of 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 duty 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).
Although the Act does provide for exemptions the only provision to date is a limited exemption for new and expectant mothers in relation to the Management of Health and Safety at Work Regulations 1999 arising from a failure to assess those risks which, “could involve risk by reason of her condition to the health and safety of a new or expectant mother.” (Reg16).
The Employer’s Liability (Defective Equipment) Act 1969 survives and may well experience a new ‘lease of life’. The Act provides that when an employee suffers an injury due to defective work equipment, and the defect is wholly or partly attributable to the fault of a third party whether identified or not, the injury shall be deemed to be attributable to the negligence of the employer. This Act is likely therefore, to be heavily relied upon by claimants in ‘work equipment’ cases.
When dealing with EL claims by reference to a breach of statutory duty the burden of proof rests with the employer to show compliance with the relevant regulations. Where the duty is not a strict one, employers are required to comply with the regulations as far as is, “reasonably practicable,” a much higher duty than the common law concept of, “reasonableness.”
This principle is illustrated In Hide v Steeplechase Co (Cheltenham) Ltd 2013. A jockey was injured when he fell from his horse whilst jumping a fence and hit the perimeter track fence. He brought a claim alleging that the rail was work equipment for the purposes of the Provision and Use of Work Equipment Regulations (1998) (PUWER) and that it was not ‘suitable’ in accordance with Regulation 4. At first instance the court found for the defendant, interpreting the Regulations by reference to ‘reasonable forseeability’.
The Court of Appeal (CoA) overturned the judgment. They held that this was a common law concept which had been incorrectly applied in this case and was inconsistent with the extent of the duty under PUWER. They did however, say that had the case been judged by reference to common law principles the defendant may well have succeeded.
The common law duty has been expressed by the court as, “the reasonable and prudent employer taking positive thought for the safety of his workers in the light of what he knows or ought to know.” (Stokes v Guest (1968) 1WLR 1886).
An employer’s specific duties are:
These duties cannot be delegated to a third party (however competent). Theoretically, the burden of proof shifts to the employee to prove negligence. The reality in the employer / employee relationship is that the employer tends to ‘hold all the cards’ and courts may recognise this. Therefore, once the employee puts forward a plausible case there will be an onus on the employer to demonstrate that they have taken reasonable positive steps to safe guard the injured employee.
Investigations will still need to focus on the provision of documents and lay witness evidence to support the employer’s case. The starting point for investigations will however be the common law duties applicable and what the employer needs to have done in the given circumstances to discharge that duty. The evidence will need to demonstrate not only what has been done but why the steps taken were sufficient and why the employer was not reasonably required to do anything more.
It is important to remember that the regulatory framework does not change; employers still remain liable to prosecution for breach. On the face of it the changes are not inconsistent with European Law. The purpose of the relevant EU Directive (89/391/EEC) was, “the introduction of measures to encourage improvements in the health and safety of workers at work.” It did not make any provision for civil liability in the event of breach.
Some commentators argue that breach of statutory duty can still be pleaded as evidence of negligence and the standards by which negligence should be measured. This does not however appear to stand up to scrutiny given the distinction between the common law test of ‘reasonableness’ as opposed to the statutory tests of ‘strict liability’ and ‘reasonable practicability’.
There are two areas of potential challenge which could change the pre-existing landscape:
Since 1898 (Groves v Wimbourne) an injured employee could base a claim against his employer for breach of statutory duty and the courts have rarely had to look beyond that test to determine civil liability. There is a paucity of case law decided by reference to common law negligence. There will therefore be some speculation as to how the judiciary will ‘benchmark’ negligence in certain scenarios. In addition to Hide, cases are emerging which although tried by reference to breach of statutory duty are hinting at what the common law world may look like. In Kennedy v Chivas Brothers Ltd (2013) an employee trapped her hand when manoeuvring a laden trolley weighing 380kg along a passage into which machinery protruded.
At first instance the judge held that the trolley was ‘suitable’ for the purposes of PUWER but as with the Hide case the CoA found for the claimant on the basis that the trial judge had applied common law duties to interpret what was a higher statutory duty.
It will be interesting to see how this change plays out. In the portal examples are emerging of claimant lawyers simply pleading to ‘negligence’ in the CNF and letting the compensator work out where to look in terms of investigations. Keoghs will continue to track S69 of the ERR and the unfolding level of impact on EL compensation over the coming months.
Eric Woolley
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