PI Brief Update

Farewell to Civil Actions for Breach of Stat. Duty: Revision To s.47 H&SW Act ’74 by #ERRAct In Force From 1st October - Jamie Clarke, Hardwicke

21/10/13. Philip Mead of Old Square suggested an interesting angle to post 1/10 claims: taking (of course) the starting point that negligence actions survive, i.e. breach of the duties at common law to provide safe place/systems of work etc remain actionable in damages, Philip argues that the standard of that duty is set by the regulations made under the H&SWAct which, of course, remain in force for the purposes of criminal enforcement. That’s my view, albeit that the “standard” at common law relates to the specific duties on the employer but subject to usual common law concepts of foreseeability, reasonableness etc. So, e.g., duty to provide a safe system of work embraces the PUWER duties in relation to WE, but subject to “reasonableness”.

Where Philip’s paper got interesting was his view that the way in which the Govt enacted its policy via the revision of s.47 means that the common law will apply the Regulations in exactly the same way as before. Therefore, of perhaps critical importance, Philip argues that if there was strict liability / absolute duties before 1st October, then via the mechanism of the common law standard of care that will continue to apply after 1st October. In short, Philip argues that the Govt’s efforts have failed, and it’s “business as usual” (or not, depending on your point of view).

I am doubtful that Judges will accept that the common law “stopgap” goes as far as to bring back strict liability “by the back door” as if the Govt had not legislated at all*. Insofar as Hansard can be taken into account**, it is clear that the govt’s focus in legislating was on strict duties and that it accepted that the common law would give a right of action for failure to provide a safe place/system of work.

As ever, once this is all shaken down over the next 5-10 years (assuming a future non-ConLib govt does not reverse the ERRA), I suspect the courts will settle on a middle ground. After all, if an employer has a statutory duty to provide, say, “traffic routes” by organising its workplace in such a way that pedestrians and vehicles can circulate in a safe manner [W(HSW)R92, r.17(1)]on pain of criminal sanction prosecuted by the HSE, it would be ridiculous were the common law to impose a lesser duty on an employer for the purposes of a civil/damages claim where, say, an employee is run over by a FLT in a warehouse with no segregation whatsoever.

Judges never liked the strict liability provisions, but let’s not forget they will not much like employers who have no regard to the regulations made under the H&SW Act when organising their premises and systems.

Jamie Clarke
Hardwicke 

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