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Terry Zindi

Terry Zindi

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Enterprise & Regulatory Reform Act: Boldly going to new industrial disease territories?

AWARE08/08/2013
Disease Aware Issue 3

Weighing in at 284 pages, the Enterprise and Regulatory Reform Act 2013, is a hefty bill, with the rather ironic purpose of cutting red-tape and bureaucracy. The 32-page policy paper that accompanied the bill listed, as part of the bill’s aims, “the need to reform unduly onerous provisions.”

At section 69 of the Act is an amendment to section 47(2) of the Heath & Safety at Work Act 1974. This section will not come into effect until October 2013 (or perhaps as late as April 2014). The effect of the clause is that breaches of statutory duty will not give rise to civil liability – an idea mooted in the Lofstedt report of 2011.

Before insurers and employers let out a whoop of joy, the change will have only a limited impact on industrial disease matters.

The Act is not retrospective and will not apply to cases before the commencement of the provision. The cases normally classed as ‘long-tail’ – deafness, HAVS, asbestosis, or those cases with long latency periods, such as mesothelioma and lung cancer – won't be affected by the change in the provision.

There is also a caveat to the Act. Where any previous act of parliament imposes a civil liability, this will remain in force. Statutory claims for harassment for instance will not be affected since the 1997 Protection From Harassment Act contains just such a provision.

The Act will impact on some ‘short-tail’ diseases – mainly those arising from repetitive manual handling and claims brought under COSHH.

Most welcome to insurers will be the sudden lurch away from Dugmore. In Dugmore, the claimant, who had developed an allergy to latex, suffered an anaphylactic attack when picking up an empty box which had contained latex gloves. The employer at the time had provided the claimant with vinyl gloves and had argued that the injury was, quite simply, unforeseeable. The dangers of latex allergy were not then known. The court considered that strict liability for a breach of regulation 7 of COSHH would apply and the employer was therefore liable.

The Enterprise Act is a return to common law principles:

(i) A duty of care is owed;

(ii) The defendant has breached that duty by reference to the standards of the time;

(iii) The conduct of the defendant has caused the claimant's harm and/or loss

As ever, the common law principles are tempered by the notions of reasonableness and foreseeability. Applying the common law principles in Dugmore, would, almost certainly, have achieved a very different result. The defence of foreseeability, dismissed by Hale LJ, would have offered a real defence to the claim. This is however, no wholesale abandonment of the statutory regulations.

Industrial disease lawyers will be very much aware that in determining what might constitute reasonableness, the courts will routinely refer to published guidance of the time.

The court will still be swayed by evidence of breaches of statutory duty when considering negligence. An example of this can be taken from road traffic accident claims where they will still consider breaches of the Highway Code (a document that imposes no civil liability of itself), to consider whether a party has been negligent.

Importantly, there will be differences in the burden and standard of proof once the provision commences. An employer has a duty to take reasonable care of his employee, whereas many of the current statutes impose a duty of reasonable practicability. The employer must prove the defence of reasonable practicability, whereas in the brave new world, it is for the claimant to prove a breach of the employer’s duty to him, framed within the standard of reasonableness.

It is clear that the reasonable practicability standard is a higher standard than mere reasonableness.

The illustration can perhaps be best demonstrated in claims for repetitive lifting. An employer currently must show that the handling has been reduced to the lowest level practicable. Under the Act, the claimant must demonstrate, not a failure by the employer to make these adjustments, but rather that the current system of work is unreasonable and that this has led to a foreseeable risk of injury.

The change is subtle, but claims will require analysis before any concession of negligence; arguments such as an absence of previous accidents or injury, an absence of complaint and a more detailed analysis of the lifting or action involved, should all be more persuasive to a court when applying the new standard. Simply because a defendant could have utilised a different system of work that might have prevented the accident, is not, of itself, evidence of negligence.

The intention of parliament in this Act appears to be to reduce bureaucracy and to avoid unfairly punishing the reasonable and prudent employer. Where an employer has taken reasonable steps to protect his workforce, and where an accident happens that could not have been reasonably foreseen, then that employer should not be penalised. For the cavalier or reckless employer however, this Act offers no shield.