Call Us Free: 0800 999 6661

  • English
  • Polish
  • Successful resolution of complex multiple property and multiple jurisdictional property division matter Read More
  • Successfully defended a breach of contract claim brought by a brewery against a Manchester bar Read More
  • Successfully defended a breach of contract claim brought by a promotor against a local singer Read More
  • £25,000 for an elderly lady who fell in hospital when the correct safety mechanisms were not in place Read More
  • £149,000 for a mother who suffered psychological injuries following the death of her baby daughter Read More

James Winterbottom, a solicitor with 13 years’ experience in employers’ liability, takes a look at the legal landscape almost seven years on from one of the most controversial changes to the employer’s liability status quo.

On 1st October 2013, with little in the way of fanfare or media coverage, workplace health and safety protection was dealt the biggest blow in the Nation’s history, as over 100 years of British legal principle was swept aside.

The change? The introduction of Section 69 of The Enterprise and Regulatory Reform Act 2013, which acted to amend Section 47 of the Health and Safety at Work etc. Act 1974 (civil liability), to instead read:

“(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.”

The Country’s media, and large swathes of the profession, in my view failed to appreciate just how dramatic an assault on British legal values such a decision meant. It was in the 19th century case of Groves v Lord Wimborne [1898] 2 QB 402 that the Court held that a breach of a statutory duty, carrying with it criminal law repercussions (in just the same way modern statutory regulations do) also carry with them civil liability. The position had been confirmed by the courts on other occasions following, such as Larner v British Steel PLC (CA) [1993] ICR 551.

It truly was, therefore, an attempt at dramatic change to our legal system. I have used the word “attempt” quite deliberately, for let us now consider what, if any, difference it has made.

What difference has it made, if any?

The quick, but entirely wrong, answer is simply “breach of health and safety regulations does not matter anymore.” Indeed this seems to be the view of some defendant representatives and the authors of their pleadings.

The truth is that the regulations are all still present and continue to apply to workplaces across the Country.

 

1. Criminal repercussions remain, which can be relevant to civil actions

Firstly, there can still be criminal repercussions (i.e. by way of Health and Safety Executive prosecution of the employer). Although this could lead to the paradox of a defendant employer being subject to criminal illegality for breach of a statutory regulation leading to an injury at work but then immune from civil liability, the reality is that an employer successfully prosecuted in a criminal context for a health and safety breach would have little chance of defending a claim based upon negligence (such as failure to provide a safe system of work, or a safe place of work, and such like). Indeed this point was submitted to the Court in the 2015 Scottish case of Gilchrist v ASDA Stores [2015] CSOH 77, in which Counsel for the Claimant who argued, successfully, that an employer who committed an offence could not then argue they had been acting reasonably.

The bigger issue is the practicalities: those experienced in employers’ liability law know all too tell that the Health and Safety Executive rarely intervene; investigations are more often than not sloppy, resulting in strong cases being overlooked and only “dead cert” “open goal” type cases being pursued.

2. Breach of a regulation remains directly relevant to the issue of negligence

Secondly, as the regulations still exist and apply, breaches are relevant when determining whether there was breach of duty from a negligence perspective. Well, this was at least the stated intention of the Government at the time. On 24th April 2013 In a House of Lords debate precipitating the introduction of Section 69 stated: “The codified framework of requirements, responsibilities and duties placed on employers to protect their employees from harm are unchanged, and will remain relevant as evidence of the standards expected of employers in future civil claims for negligence.” Lord Faulks added: “A breach of [a] regulation will be regarded as strong prima facie evidence of negligence. Judges will need some persuasion that the departure from a specific and well-targeted regulation does not give rise to a claim in negligence.”

There was, in fact, already case law precedent for such a “relevance” proposition: in Griffiths v Vauxhall Motors Ltd [2003] EWC Civ 412 it was held (prior to the statutory regulations carrying with them civil liability) that the regulations then in place were relevant to identifying the standard of care expected of a reasonable employer (in that case the duty to undertake a risk assessment pursuant to Regulation 3 of the Management of Health and Safety at Work Regulations 1999.

Now, I know what you are likely thinking: “It’s all very well quoting the Government’s stated intention and older authorities, but what is the position now?”

Well, let’s take a look at some post-Section 69 examples.

In the 2015 Scottish case of Gilchrist, referenced above re the criminal law parallel, The Scottish Outer House accepted Counsel for the Claimant’s submissions that:

a) The Government had made its intentions clear in the House of Lords debate;
b) An employer who breached a regulation (and thereby committed an offence) cannot be said to have acted reasonably:
c) The existence of a statutory regulation demonstrates that harm is foreseeable

But what about examples from England and Wales?

Despite us being almost seven years on, reported higher court cases remain few and far between. In the High Court case of Cockerill v CXK Limited and Artwise Community Partnership [2018] EWHC 1155, whilst the High Court may have expressed the opinion that Section 69 had indeed changed the relationship between employer and employee, considering the facts of the case (the claimant did not see yellow warning tape on the floor demarcating a step), it does not appear Section 69 would have made any difference, and, in my view at least, I would have expected such a case to have lost pre-Section 69.

In the unreported 2018 case of Tonkins v Tapp HHJ Gore QC criticised the logic expressed by the High Court in Cokerill, pointing out that it is illogical to argue that regulations remain relevant regarding negligence but to then, at the same time, argue against their relevancy by suggesting a change in the employer-employee relationship. The problem though is that, like Cockerill, these were largely secondary comments, not directly relevant to the judgments reached: to the best of my knowledge we still lack a solid higher court authority on this issue.

My sneaking suspicion however is that there is a very good reason we lack a higher court authority: most appeals to the senior courts require significant funding, the type that ordinarily only defendant insurance companies can (or at least willing to) expend. If they already, privately, hold the view that Section 69 really did not make much difference, the last thing they would want is a higher court decision removing any doubt whatsoever – better to leave a claimant with some nagging doubt, perhaps to use as negotiation power later, than risk a higher court authority.

3. Some duties assumed to only come from statutory duties are in fact common law duties

Practitioners of employers’ liability law are accustomed to the four “classic” common law duties:

– To provide a safe system of work

– To provide a safe place of work

– To provide a competent staff of men

– To provide adequate plant and material

But what if secretly hiding within this list all long were additional common law duties, such as the duty to undertake a risk assessment, or the duty to provide health and safety training? One could perhaps argue such additional duties were always, perhaps implicitly, lurking within the duty to provide a safe system of work; perhaps so, but I think it would be helpful to consider a number of authorities that may in fact surprise practitioners as to just how entrenched in the common law (and therefore wholly untouched by Section 69) such additional duties are.

In Uren v Corporate Leisure (UK) Ltd & MOD [2011] EWCA Civ 66 it was held that employers are under a duty to risk assess by way of common law.

On the topic of training, the 1953 Court of Appeal authority of General Cleaning Contractors v Christmas [1953] AC 180 remains good law. It will be familiar to many in the profession but, to recap: an experienced window cleaner suffered an injury at work after falling from the side of a building after positioning his hand precariously. He had not been provided with any training or warnings on this issue but the defendant employer argued that he was an experienced window cleaner and the risk was obvious. The Court of Appeal found in his favour on a 100% basis: the duty to train and warn is absolute – how obvious a danger is from an employer’s perspective does not matter.

The practical reality therefore for any employer is that, at the very least, their list of common law duties requires extension as follows:

– To undertake a competent risk assessment, reviewing and revising as appropriate

– To undertake detailed, comprehensive and regular training irrespective of experience of the employee

4. Section 69 made no amendment or difference whatsoever to the general duties provided for in the 1974 Act

Often overlooked is that the Health and Safety at Work etc. Act 1974 was not merely a conduit for civil liability of statutory regulations: it stipulated a list of employer duties in its own right.

Section 2 of the 1974 Act, “General duties of employers to their employees” states:

(1)It shall be the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees.

(2)Without prejudice to the generality of an employer’s duty under the preceding subsection, the matters to which that duty extends include in particular— (a)the provision and maintenance of plant and systems of work that are, so far as is reasonably practicable, safe and without risks to health; (b)arrangements for ensuring, so far as is reasonably practicable, safety and absence of risks to health in connection with the use, handling, storage and transport of articles and substances; (c)the provision of such information, instruction, training and supervision as is necessary to ensure, so far as is reasonably practicable, the health and safety at work of his employees; (d)so far as is reasonably practicable as regards any place of work under the employer’s control, the maintenance of it in a condition that is safe and without risks to health and the provision and maintenance of means of access to and egress from it that are safe and without such risks; (e)the provision and maintenance of a working environment for his employees that is, so far as is reasonably practicable, safe, without risks to health, and adequate as regards facilities and arrangements for their welfare at work.

(3)Except in such cases as may be prescribed, it shall be the duty of every employer to prepare and as often as may be appropriate revise a written statement of his general policy with respect to the health and safety at work of his employees and the organisation and arrangements for the time being in force for carrying out that policy, and to bring the statement and any revision of it to the notice of all of his employees.

(4)Regulations made by the Secretary of State may provide for the appointment in prescribed cases by recognised trade unions (within the meaning of the regulations) of safety representatives from amongst the employees, and those representatives shall represent the employees in consultations with the employers under subsection (6) below and shall have such other functions as may be prescribed.

(6)It shall be the duty of every employer to consult any such representatives with a view to the making and maintenance of arrangements which will enable him and his employees to co-operate effectively in promoting and developing measures to ensure the health and safety at work of the employees, and in checking the effectiveness of such measures.

(7)In such cases as may be prescribed it shall be the duty of every employer, if requested to do so by the safety representatives mentioned in [F2subsection (4)] above, to establish, in accordance with regulations made by the Secretary of State, a safety committee having the function of keeping under review the measures taken to ensure the health and safety at work of his employees and such other functions as may be prescribed.

5. An end to strict liability?

The common consensus is yes: cases that would have won on a strict liability basis, such as. Stark v Post Office, succeeding upon a strict liability application of Regulation 5 of the Provision and Use of Work Equipment Regulations 1998, would not of course now succeed on such a basis.

There is likely a greater need now for expert evidence: the claimant cannot now simply point to the fact equipment has failed as evidence of negligence; there will need to be at least some exploration and understanding as to how it came to fail. We must not forget however that, in civil cases, we are dealing with “the balance of probabilities” i.e. the claimant employee need not prove fault of the employer beyond doubt – if an expert concludes that, for such a failure to have occurred, considering the age, quality of the equipment etc, poor maintenance and/or inspection was likely to have been the cause, the case should succeed. Claimant practitioners must therefore not be too deterred by defendant representatives’ protestations along the lines: “you cannot prove it was definitely due to fault of the employer” – the claimant does not have to! The claimant need only prove it was, all things considered, more likely than not to have been the fault of the employer.

6. An end to reversed legal burdens?

It was often felt that certain regulations, such as Regulation 12 of the Workplace (Health, Safety and Welfare) Regulations 1992 carried with it a reversed burden: it was the employer to plead and prove the floor was sufficiently safe and suitable. I practised during those days and whilst such a view would be espoused on various training courses and in many an academic circle, the practical reality so far as counsel was concerned was that it would not really “bite”: for the claimant to win he or she needed to prove the floor was not sufficiently safe and suitable. My gut feeling therefore is that any difference in this respect is minimal.

On the topic of unsuitable floor surfaces/trips and slips in the workplace, it will be interesting to see whether Tesco v Ward et al makes headway into the employers’ liability arena. Of course, in occupier’s liability matters (most commonly featured in supermarket slips and trips) the Tesco v Ward line of authorities indicate that once an injured claimant proves they suffered an injury of the type not ordinarily expected in safe and suitable conditions (i.e. one does not expect to slip and suffer injury whilst shopping at a supermarket), the burden shifts to the occupier to establish it did not occur for want of care on their part. We then get into consideration of what if any cleaning and maintenance systems were in place (and, more crucially, whether there is cogent evidence to show they were in effect at the material time – Dawkins v Carnival PLC (t/a P&O Cruises) [2011] EWCA Civ 1237). On the face of it, it seems harsh to grant shoppers greater protection than workers, particularly when the statutory regulations remain.

Side Notes:

1) An impact, or not, on contributory negligence?

Authorities such as Cooper v Carillion PLC [2003] EWCA Civ 1811 and Toole v Bolton MBC [2002] EWCA Civ 588 hold that the courts should be slow (if ever) to make a finding of contributory negligence in situations where there is a clear breach of statutory duty. The rationale was that to do so would undermine the authority of the statutory regulations. Whilst it appears we continue to lack a higher court authority as to whether this has changed (and may continue to do so for some time, for fear of disturbing or confirming the principle), there are now perhaps arguments to be made both ways. Whilst defendants may argue that the absence of direct civil liability removes the “undermining” argument, claimants will argue that the fact there has been deliberate intention to leave the regulations themselves unchanged, together with their criminal repercussions and guidance as to common law duties, means there is no sound logical justification for disturbing those Court of Appeal authorities.

2) Misconceptions regarding the Employer’s Liability (Defective Equipment) Act 1969

Around the time of Section 69’s arrival I began to see increasing reference to the 1969 Act and, from some quarters, even suggestions it may fill the hole left by the removal of strict liability regarding defective work equipment

I consider such an interpretation misconceived, and a number of senior employer’s liability counsel share my view. If one looks at the wording of Section 1 of the 1969 Act, there is in fact an explicit need for a finding of “fault”:

1 Extension of employer’s liability for defective equipment.
(1)Where after the commencement of this Act— (a)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 (b)the defect is attributable wholly or partly to the fault of a third party (whether identified or not),the injury shall be deemed to be also attributable to negligence on the part of the employer (whether or not he is liable in respect of the injury apart from this subsection), but without prejudice to the law relating to contributory negligence and to any remedy by way of contribution or in contract or otherwise which is available to the employer in respect of the injury.

I believe the correct interpretation therefore to be that provided fault can be found (i.e. someone, somewhere, did something wrong (on the balance of probabilities)) then the employer faces liability. Whilst analogies can be drawn with “true” strict liability, the crucial difference of course is that before Section 69 cases could succeed on regulations such as Regulation 5 of Provision and Use of Work Equipment Regulations 1998 were no fault was actually proved: the work equipment broke, the employee was injured, the employer was therefore automatically liable.

Conclusion:

Whilst strict liability has highly likely to have departed, the practical reality for employers is that they will be at substantial risk of being found liable if they fail to comply with any of the following:

– To provide a safe system of work;

– To provide a safe place of work;

– To provide a competent staff of men;

– To undertake, and keep under review, a suitable risk assessment;

– To provide regular and comprehensive training;

– To observe the statutory duties provided for by the various statutory regulations; and

– To observe the statutory duties provided for in the 1974 Act

In reflecting upon such a list, and in the absence of any higher court authority to the contrary, it can certainly be argued the impact of Section 69 is minimal; knowledgeable practitioners, armed with competent expert witnesses where necessary, should continue to succeed in those cases that would have succeeded prior to Section 69. Only if a government was to ever repeal the statutory regulations would we likely “roll back” health and safety to the 1970s utopia many insurance companies and their lobbyists long for, but to do so would mark a very dark day for any civilised nation and it is not one I can see on the horizon just yet.

James Winterbottom

Get Free Legal Advice

Injury at Work

Learn more

Medical Negligence

Learn more

Serious Injury

Learn more

Road Traffic Accident

Learn more

Privacy Policy | Contact

Copyright 2020 Aston Knight Solicitors