Leon takes a look at the changes to the Health and Safety at Work Act 1974 brought into effect by Section 69 of the Enterprise and Regulatory Reform Act 2013.
No sooner have we caught our breath and the next reform is upon us! From 1 October 2013 Section 69 of the Enterprise and Regulatory Reform Act 2013 came into force. This means that for accidents occurring from 1 October 2013, no civil claim can be brought for a breach of a health and safety statutory duty.
Background to Section 69
Section 69 of the Enterprise and Regulatory Reform Act 2013 amends Section 47 of the Health and Safety at Work Act 1974 (HSWA) by removing any civil liability arising from a breach of the HSWA. This changed as follows:
“The 2011 government commissioned a review of health and safety regulation. This was conducted by Professor Löfstedt. He recommended that strict liability should be qualified or, where necessary, replaced by “reasonably practicable”.
Arguably what has been introduced is a step further which will be welcomed by many industry health and safety professionals.
I could not begin to count the numerous occasions where I have had to explain to clients who are struggling to comprehend why, having done all that is possible, they still have to pay compensation for an incident that simply could not have been avoided. This is particularly apparent in cases under Section 5 of the Provision and Use of Work Equipment Regulations, where some seemingly unforeseen defect has given rise to an accident causing an injury to an individual. There have been many incidences where employers simply could not have done any more to prevent an accident from occurring. It seems unjust that a civil claim should arise in such a circumstance. We need only look at the case of Stark v. Post Office to see a perfect example of this point.
Level playing field
Importantly Section 69 will not remove the individual’s right to bring a claim. However, to be successful the claimant will have to prove the existence of negligence on behalf of the employer.
How this will affect the litigation rates going forward remains to be seen. On a practical level the existence of a breach of a regulation will no longer be enough to establish liability.
For example, if we look at ‘Stark’ . The case succeeded as the claimant only had to show a breach of Section 5 of the Provision and Use of Work Equipment Regulations. He did not need to show anything more than the existence of the defect and that injury arose from it. Today, in the same circumstances, he would have to show that on the balance of probability his employer was negligent. That is, that his employer could have done more to protect his safety.
Will it be harder to bring a claim?
I can’t see that it will, provided that the claims are run properly from the outset. This change does not take away either the right to bring a claim nor does it give the employer a ‘get out a jail free card’. The employer will still need to show the existence of an adequate health and safety regime. I do anticipate an increased reliance on expert evidence to establish negligence and some interesting and creative pleadings.
Two tier system
In principle, an employee of an ‘emanation of the state’ (e.g. one employed by a local authority) need only show a breach of a relevant European Directive to establish liability against his/her employer.
This situation does not extend to workers outside of the public sector. Therefore, if he or she were not employed by an ‘emanation of the state’ they will need to prove that his/her employer was negligent in order to establish liability. It follows that for the exactly the same breach, depending on who is the claimant’s employer, there can be two very different results. This appears to create a two tier legal system.
It will be interesting to see how this oddity is dealt with in the UK courts.