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ERRA in law

12 June 2015

Following the introduction of Enterprise and Regulatory Reform Act 2013 (ERRA) the new landscape for personal claims post 1 October 2013 is that such claims are, save for limited exceptions, dependent upon whether the claimant can prove negligence by proving breach of duty and foreseeable risk of injury.

The Act reverses section 47 of the health and safety at work act 1974 which provided that a breach of duty imposed by health and safety regulations was actionable as a civil claim.

Section 69 (3) (2) of ERRA states:

“Breach of the duty imposed by 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.

“Breach of a duty imposed by the 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).”

The Act makes clear that the section is not retrospective. For those doing disease work the relevant date will be the date of the breach (Section 69(10)).

Not all disease cases are historical and these changes will still be relevant e.g. the Control of Substances Hazardous to Health Regulations 2002. Civil liability is now excluded for breaches of these regulations. The situation now arises that where there is a continuing alleged breach with the same employer a different approach will be applied for alleged breaches pre and post 1 October 2013. Will the courts follow the cases of say Dugmore v Swansea NHS Trust 2002 a case involving a latex allergy which was decided following the introduction of the Control of Substances Hazardous to Health (COSHH) Regulations, or will parties have to consider pre-COSHH cases?

Given the new found importance of the common law following ERRA, It is worthwhile reminding ourselves what the common law has to say about the obligations on the employer as set out in the case of Stokes v Guest which was approved by the House of Lords in Barber v Somerset County Council 2004 UKHL:

“The overall test is still the conduct of 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; where there is a recognised in general practice which has been followed for a substantial period in similar circumstances without mishap, he is entitled to follow it, unless in the light of common sense or newer knowledge it is clearly bad; but, where there is developing knowledge, he must keep reasonably abreast of it and not be slow to apply it; and where he has in fact greater than average knowledge of the risks, he may be thereby obliged to take more than the average or standard precautions. He must weigh up the risks in terms of the likelihood of injury occurring and the potential consequences if it does; and he must balance against this the probable effectiveness of the precautions that can be taken to meet it and the expense and inconvenience they involve. If he is found to have fallen below the standard to be properly expected a reasonable and prudent employer in these respects, he is negligent.”

In looking at disease cases the courts have confirmed they will judge employees by the standards of the time of the alleged breach and not apply stricter standards that may have come in to force at a later time. See Baker v Quantum Clothing Group PLC 2009 EWCA. Historic breaches of duty will therefore not be affected by this change in the law.

However, what about current legislation which impacts upon disease cases? Statutory duties may be evidence of good practice which a reasonable employer should adopt see Bux v Slough Metals Limited 1974 which involved a statutory duty to provide goggles. In considering the relationship with the common law LJ Stephenson stated:

“There is in my judgement no presumption that a statutory obligation abrogates or supersedes the employer’s common law duty or that it defines or measures his common law duty either by clarifying it or by cutting it down-or indeed by extending it… The statutory obligation may exceed the duty at common law or it may fall short of it or it may equal it”.

The matter is further complicated by EU legislation

In the case of Marleasing S A v La Commercial Internacional de Aliementacion S A (European Court of Justice) it was stated that:

“In applying the national law, whether the provisions in question were adopted before or after the directive, the national court called upon to interpret is required to do so, so far as possible, in the light of the wording on the purpose of the directive in order to achieve the result pursued by the latter and thereby comply with the third paragraph of Article 189.”

The English courts therefore under duty in their capacity as all organs of the state to seek to bring English law into line with European law see Hide v Steeplechase Co Ltd (Cheltenham Racecourse) and others 2013 EWCA.

European directives in relation to health and safety matters may be relied upon in claims against an ‘emanation of the state’.

While directives will, therefore, be relied upon in relation to the issue of common law rights, they will also be relied upon in claims directly against public bodies. The definition of ‘emanations of the state’ is sufficiently wide to encompass a wide range of employers:

  • public health bodies – Marshall v Southampton and South-West Area Health Authority
  • privatised water companies – Griffin v South West Water Services ltd.

It is too early to see how the courts will approach these cases. Very often cases are not litigated until close to the three year limitation period and it remains to be seen what approach the judiciary will take to these difficult issues.

View Richard Johnson’s article on Zurich Insurance plc UK v The International Energy Group Ltd 2015 UKSC here

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