Back To The Future…ERRA
“Erra – a Babylonian plague god known from an epic of the 8th Century BC. Erra is the god of mayhem and pestilence who is responsible for periods of political confusion.” (Wikipedia)
Erra amulet
INTRODUCTION
PI practitioners will, no doubt, now be familiar with the terms of Section 69 of the Enterprise & Regulatory Reform Act 2013 insofar as it will affect employers’ liability claims for accidents occurring on or after 1st October 2013. After twenty years of relying upon breaches of statutory duty under the various ‘six-pack’ regulations in EL claims, practitioners might have been forgiven for throwing away their old textbooks relating to common law duties of care. The common law was still pled, although not routinely, but most lawyers specialising in this area would typically not rely upon breach of common law duty when there was a relevant statutory breach available. That twenty year journey has now (at least for the moment) ended.
BACKGROUND
The Health & Safety at Work Etc Act 1974 contained a presumption that regulations made under it would impose not only criminal liability, but also civil liability for any breach of those regulations. Section 47 of the Act provided that civil liability would arise for breach of regulations except to the extent that the specific regulations themselves said otherwise.
From 1992 onwards, the UK brought its own domestic law into compliance with European directives protecting workers health and safety. Breach of those regulations gave rise to civil liability unless the regulations themselves provided otherwise. The regulations included:-
- Personal Protective Equipment at Work Regulations 1992 (as amended).
- Manual Handling Operations Regulations 1992 (as amended)
- Workplace (Health, Safety & Welfare) Regulations 1992
- Provision & Use of Work Equipment Regulations 1998
- Lifting Operations and Lifting Equipment Regulations 1998
- Control of Substances Hazardous to Health Regulations 2002
- Work at Height Regulations 2005 (as amended)
Some (although very much a minority) of the individual regulations provided for strict liability, e.g. Regulation 5(1) of the Provision & Use of Work Equipment Regulations 1998. That regulation governed what might be termed ‘spontaneous failure’ of work equipment. All a claimant required to prove was that the particular type of work equipment or machinery comprised “work equipment” as defined by the regulations, that it failed or was defective in some respect and such failure/defect caused the claimant injury. There was no requirement on the claimant to prove foreseeability or knowledge of the defect by the employer. The classic example is the case of Stark v. The Post Office where the plaintiff’s bicycle supplied to him by the defendants broke without warning even though a reasonable maintenance system had been operated.
Other regulations made since 1992 imposed a ‘reasonable practicability’ requirement. This provided a defence to employers, although the onus lay with them, not the claimant, in averring and proving that they took all reasonably practicable steps in the circumstances. Following the 2011 Supreme Court decision in Baker v. Quantum Clothing Group Limited, the question of whether an employer had taken all ‘reasonably practicable’ steps rested effectively upon consideration of the standard of care required at common law. In Baker, the Supreme Court held (by a 3:2 majority) that safety was a ‘relative’ concept i.e. it depended upon the standards, known precautions and guidance available at the time of the breach and was therefore not to be analysed retrospectively by reference to future standards. Employers should keep up to date with developments. Foreseeability played a part in whether a workplace was safe or not. In determining whether it was reasonably practicable to adopt a particular safety measure required consideration of the nature and gravity of the risk, its consequences, balanced against the nature, expense and proportionality of the steps by which the risk might be addressed.
In March 2011, Professor Lofstedt, Professor of Risk Management at King’s College, London was asked by the coalition government to review health and safety legislation with a view to “reducing the burden on business, whilst maintaining the progress that has been made in health and safety outcomes”. Professor Lofstedt produced a 110 page report summarising his findings. It is noteworthy that his report identified that the reported ‘excesses’ were more the product of misapplication of the regulations than the regulations themselves. In particular, he concluded that, “In general, there is no case for radically altering current health and safety legislation.” Professor Lofstedt recommended that regulatory provisions which imposed strict liability should be reviewed by June 2013 and either qualified with a ‘reasonably practicable’ rider where strict liability was not absolutely necessary, or else be amended to prevent civil liability from attaching to a breach of those provisions.
What Professor Lofstedt emphatically did not recommend was the wholesale removal of civil liability for any breach of the various regulations, removing any right of an employee to claim for breach of statutory duty and effectively return us to the ‘good old days’ that existed before the first of the various Factories Acts, such as the Health & Morals of Apprentices Act 1802. Indeed, Professor Lofstedt subsequently commented that “The approach being taken is more far reaching than I anticipated in my recommendation…”. Ironically, Lofstedt had actually found that Health & Safety Regulations were justified under a cost: benefit analysis. They worked – there was an approximate 70% reduction in accidents since the Health & Safety at Work Etc 1974 and 70% of managers credited legal obligations as the reason for complying with the regulations. Put another way, the regulations actually encouraged safe behaviour. Businesses also told Lofstedt that they credited the various regulations and the associated codes of practice with explaining to them how to be safe. Particular credit was given to the regulations and guidance relating to manual handling and PUWER. Lofstedt commented: “There is no question in my mind on the basis of evidence I have seen and heard that a legal requirement to do a risk assessment is a fundamental step in appropriate management of risk for any business.”
The question therefore is why the government decided to make such a radical change in Health & Safety law against the recommendations of Lofstedt? Both coalition parties make regular play of the Labour Party being in hock to the trade unions. Is Section 69 perhaps the product of lobbying by insurers and their representatives who feel that it will reduce their potential for legal liability?
POST 1st OCTOBER 2013: WE ARE NOW BACK TO THE FUTURE….
Claimants can no longer allege direct causes of action based on breaches of the regulations where the accident occurs on or after 1st October 2013.
EL claims post – 1/10/13 will now be governed by common law negligence. The burden of proof will be on claimants throughout, rather than, as sometimes occurs under the Regulations, part of that burden being on the employer to show that it took reasonably practicable steps to achieve an objective. For those of you who may have forgotten what those common law duties are, there are broadly four:-
- A duty to employ competent fellow employees.
- A duty to provide a safe place of work.
- A duty to provide safe plant and equipment.
- A duty to provide a safe system of work.
It will be a while yet before the first of the post – 1/10/13 claims are tested at trial.
CAN THE REGULATIONS STILL BE USED AS EVIDENCE OF NEGLIGENCE?
It is important to note that there will remain criminal liability for breach of the regulations, because employers who do not comply with them will be at risk of prosecution by the Health & Safety Executive.
Most commentators expect that the standards set by the Health & Safety at Work Etc Act 1974; the various Health & Safety Regulations and the HSE Approved Codes of Practice will be adopted by the courts as determinative of the applicable standard of care at common law.
It was already a settled legal principle that the existence of a statutory duty and what was required to be done under it could be relied on as evidence of what a reasonable employer would have done under its common law duty in relation to foreseeing particular risks or taking a specific precaution against them. See, for example, Lochgelly Iron & Co. Ltd v. M’Mullan (1934) AC1, Lord Atkin at page 9:-
“….if the duty to the injured person is imposed by statute, and the breach is proved, all the essentials of negligence are present. I cannot think that the true position is that in such cases negligence only exists where the (Court) agrees with the legislature that the precaution is one that ought to be taken. The very object of the legislation is to put that particular precaution beyond controversy.”
Moreover, when the ERRA Bill passed through parliament, Viscount Younger on behalf of the government in the House of Lords 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.”
Practitioners should note that in Pepper (Inspector of Taxes) v. Hart [1992] UKHL 3 the House of Lords stated that the courts can consider Hansard, and Ministerial Statements in particular when construing statutes.
In short, for claimant lawyers, letters of claim and pleadings should contain reference to the regulations with the argument that breaches of regulations should be seen as being of assistance to interpretation of the extent of the common law duty. What a claimant will probably not be allowed to do, however, is argue that where a strict liability duty arises under regulations, that that higher level of duty should be incorporated into the common law duty. This is because the common law duty is limited to one of reasonable care.
THE EUROPEAN DIMENSION: ‘EMANATIONS OF THE STATE’
It is established EU law that directives, including those addressing health and safety issues, can give a cause of action directly against ‘emanations of the state’. The case law that has subsequently developed has defined an ‘emanation of the state’ as including all government departments, local authorities, health authorities, police authorities, nationalised corporations and private water companies. The ultimate test is that the emanation of the state should provide a public service, should be under the control of the state, and have powers in excess of those held by private entities.
The principle is known as ‘direct effect’. Where therefore a defender is an emanation of the state, breach of the particular European directive, under which the individual health and safety regulation was made, should be pled. Will this result however in a ‘two tier’ system of liability for EL claims made by public and private sector workers?
RISK ASSESSMENTS
There remains a continuing requirement upon employers to undertake risk assessment in terms of Regulation 3 of the Management of Health & Safety at Work Regulations 1999.
These will be crucial in determining the foreseeability of risk and the content of the common law standard of care in relation to what reasonable steps an employer should have taken to avoid or ameliorate the particular risk of injury. Practitioners should be aware of what was said by Lord Hope in Robb v. Salamis [2006] UKHL 56: “It is in that context that the issue of foreseeability becomes relevant. The obligation is to anticipate situations which may give rise to accidents. The employer is not permitted to wait for them to happen.” (paragraph [24]); “It requires that an assessment of risk be carried out before the work equipment is used by or provided for persons whose health or safety may be at risk. The aim is to identify the risks to the health and safety of workers if things go wrong.” (paragraph [25])).
In Allison v. London Underground Limited [2008] EWCA Civ 71, Lady Justice Smith emphasised the importance of starting an analysis of what should or should not have been in an employer’s mind as a potential risk to be addressed by reference to the regulatory requirement to carry out a risk assessment. In that case a risk assessment properly done ought to have identified the need for expert ergonomic advice as to train dashboard controls and training in their proper use. It is noteworthy that Allison was a case decided on facts pre-dating the 2003 amendment to the Management of Health & Safety at Work Regulation 1999.
It would be surprising if the case law concerning what health and safety measures are, or are not, ‘reasonably practicable’ for en employer to take were not, to a large extent, drawn upon, and the arguments borrowed by the courts when revisiting and occasionally redefining common law duties parallel to the regulations. There is in fact Scottish authority on the point: in O’Halloran v. CIBA Speciality Chemicals plc 2007 Rep. L.R. 32; 2007 G.W.D. 7-126; [2007] C.L.Y. 5421, it was held that the findings of a risk assessment can inform the content of the standard of care that should be adopted at common law.
Accidents involving machinery
Under the previous Factories Acts and then PUWER, it was relatively easy for claimants to found upon a prima facie breach of statutory duty in accidents involving machinery, particularly where there was ‘spontaneous’ malfunction or defect in the machinery. Regulation 5(1) of PUWER (such as in the case of Stark) was a strict liability provision. The claimant did not even require to prove what the cause of the actual defect was or that the employer knew about it. Strict liability is an anathema to the common law principles of negligence. It was the main target of the Loftstedt report. Such cases are unlikely to succeed under Section 69 of ERRA. It will no longer be sufficient for a claimant to point to the fact of an unsafe workplace and/or malfunctioning machine which resulted in injury. The claimant will more often have to prove (a) what went wrong and (b) that this would probably have been avoided had proper steps been taken.
In future therefore, in machinery cases, claimants should seek at the pre-litigation stage full disclosure of records in relation to the inspection, maintenance and operation of machinery. It is likely that there is going to be greater resort to expert engineering evidence in order that claimants can understand and prove the mechanics of an accident and how it might have been prevented. In turn, these types of claims are going to be more expensive to litigate. The irony that this is the polar opposite of what the government’s objectives were in implementing the changes (i.e. saving business and litigation costs) is surely not lost.
Practitioners should remember that the Employers’ Liability (Defective Equipment) Act 1969 remains in force. This provides that where a defect in equipment provided for use at work causes injury and that defect is wholly or partly due to the fault of a third party other than the employer, then the injury is deemed to have been caused by the negligence of the employer. This will assist claimants where there is criticism to be made of the manufacturer of the machine or any servicing of it carried out by contractors.
And finally….the overall impact
- Strict liability has gone.
- There will be changes in litigation strategy. Claimants will face the evidential challenge of proving precisely why an accident happened.
- More expert evidence, particularly engineering evidence.
- Claims will become more expensive to investigate.
- Fewer admissions of liability at the Pre-Action Protocol stage. The Loftstedt report noted, with concern, a tendency for claims handlers to admit liability simply because the lay client could not locate the risk assessments which would evidence that the regulations had been complied with. This automatic capitulation will surely diminish. Ironically, this may place a greater administrative burden on employers if insurers press them to provide fuller instructions and to participate in more contested trials.
- Letters of claim/pleadings: these will inevitably have to alter. The contention that breach of a particular statutory duty evidences negligence will probably become the norm. Reference to directives will become more common.
- An increase in litigation, at least initially. When the six pack regulations first came into force in the 1990’s, there were a number of cases which went to trial to ‘test the waters’ as to how the courts would interpret the regulations. With Section 69 of ERRA now in force, it is likely that a number of landmark cases will be required in order to revisit and redefine, or at least restate, the extent of an employer’s common law duties under the new regime. For example, some commentators have suggested that the approach in Ward v. Tesco Stores might find itself being imported into EL negligence cases, so that although the overall (persuasive) burden rests with the claimant, in practical terms an evidential burden rests with the employer to show how an equipment failure came about, notwithstanding all reasonable care being taken.
