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changes to health & safety regulations

22 May 2013

Tucked away at s61 of the Enterprise and Regulatory Reform Bill (ERRB) are revisions to the law underlying employers’ liability claims which will reverse over 100 years of precedent and affect up to around 80,000 claims per annum.

The amendment affects the wording of the Health and Safety at Work etc Act 1974. This Act currently empowers the Government to exclude civil liability for a breach (a power which has seen limited use) when making regulations. The amendment would exclude civil liability, save where regulations specifically impose it. The practical effect is a reversal of Groves v Lord Wimborne [1898] 2 QB 402, and the end of employers’ liability claims based on breach of statutory duty.

The amendment is one of the steps the Government is taking to implement the Loftstead Review, which recommended a review of statutory duties that impose strict liability on employers, as these were perceived to be unfair. However, the Government has gone beyond this and proposes to exclude claims for any statutory breach.

The reasoning is found in the Government’s risk assessment carried out in June 2012. In essence, it was thought to be too onerous to review and amend all health and safety regulations to remove actionable strict liability provisions, and therefore the simpler option of removing the right of action in relation to all breaches of statutory duty was preferred.

This means that those statutory duties which are couched in terms of “reasonable measures” or “reasonable practicability” will no longer be capable of giving rise to a civil claim. Instead, in all cases, employees who suffer loss and damage at work will have to rely on the employer’s common law duty in negligence.

At the time of introducing this provision into the draft bill, Matthew Hancock, MP explained that the Government’s aim is to “address the unfair consequences of the existing health & safety system” and ensure that employers “who behave reasonably have no reason to fear health & safety legislation and that those who think carefully and responsibly about the businesses that they run will know that they are behaving not only reasonably, but lawfully.”

The question of unfairness is a purely political one – is it appropriate to hold employers who benefit from the services of their employees liable when the employee is injured in providing that service? Previous governments have taken decisions when introducing legislation under the Health and Safety at Work Act to decide what duties attract strict liability and which require reasonable measures, and have had the option of excluding civil liability in relation to some duties.

It is of course, open to this Government to reverse those decisions via an act of parliament, if they choose. However, the amendment proposed will not change the duties on employers, under regulations which the Health & Safety Executive will be required to enforce. The only change will be to whether injured employees can rely on these breaches when claiming against their employers.

The difficulty that will result from the Government’s proposals is that it will be left to the judiciary to decide how the common law principles of negligence apply to the various scenarios that result when an employee is injured.

The significant benefit of a strict liability system is certainty. In relation to claims, this translates into low legal costs and prompt settlement of claims. Even in areas where the regulations apply a “reasonableness” test, 30 years of case law means that, in most situations, the outcome of claims is predictable.

In contrast, under the law of negligence, the court has to establish whether the employer applied the standard of care that the “reasonable person” would expect of them. How that will be applied is anything but clear.

One argument (which we are almost bound to hear) is that a “reasonable person” would expect employers to comply with their duties under the act and regulations. That will almost certainly be rejected, as it would render the Government’s amendment ineffective.

However, it is unlikely that health & safety law will be rolled back to the position before 1974. The reality is that public expectations as to the steps employers should take to protect their staff have evolved considerably since then, no doubt driven by the health & safety regulations that have been put in place. In fact, it will be extremely difficult on a case by case basis to establish where the “reasonable person’s” expectations end and the additional duties under the regulations begin.

With this uncertainty, there is increased potential for disputes and litigation leading, at least for a time, to increased spend on claims. Allowing for the time required for a sufficient body of case law to build up (and be appealed etc) it may be five to ten years before we approach the kind of understanding we currently have of the court’s application of the law.

The approach being taken to the implementation of Loftsted’s recommendation to abolish strict liability could be interpreted as an attempt to distance the Government from attention-grabbing headlines about a “compensation culture” for health and safety.

Courts, insurers, employers and legal advisers will now be left to form their own view as to the level of health and safety expected by the “reasonable person” with inevitable disputes along the way.

For insurers, policyholder education will be essential. Policyholders with employees need to understand that, whatever they hear from Government or read in the press, high standards of health and safety risk management remain essential in order to avoid claims.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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