Update | Health and safety: Enterprise and Regulatory Reform Bill

On 16 October 2012 the government introduced a new clause (section 6) to the Enterprise and Regulatory Reform Bill (ERR). It will mean that employees injured due to an employers' breach of workplace regulations, will be prevented from enforcing a breach of the regulations. In essence, civil liability will no longer automatically attach to a breach of regulations which impose a strict duty (for example. those regulations which do not have the benefit of the defence of 'reasonable practicability').

There has been no public consultation on the addition of this clause. In September I highlighted that the government had introduced new guidance recommending that as little as two weeks consultation is required on changes to policy or legislation. There was also suggestion that, in some circumstances, there be no final consultation at all.

The government's rationale behind the addition of the clause was as a result of recommendations made by Professor Löfstedt in his report 'Reclaiming health and safety for all: An independent review of health and safety legislation', published in November 2011. However, it should be noted that he did not recommend the abolition of strict liability as a whole. In his report Löfstedt said: 'The much bigger problem is that regulatory requirements are misunderstood and applied inappropriately.' He recommended:

a) streamlining regulation through consolidation;

b) re-directing enforcement activity towards businesses where there is greatest risk of injury or ill health; and

c) re-balancing the civil justice system by clarifying the status of pre-action protocols and reviewing strict liability provisions.

Currently employees can bring civil claims for personal injury both in negligence and by citing breach of statutory duty, where it is demonstrated that the employer has failed to meet regulatory standards.

Excessive caution?

Section 47 of the Health and Safety at Work Act 1974 (HSWA) contains a presumption that regulations made under the HSWA, which currently encompasses all health and safety regulations, will carry civil liability for breach of the regulation unless expressly excluded. The amendment intends to reverse this presumption, so that no regulations would impose civil liability unless express provision is made for them to do so. The current regulations do not have express provision to impose civil liability and with no proposal to amend them to do so, there will be no civil enforcement for beach of the regulations. Employees will no longer be able to rely upon the breach of regulation to demonstrate a failure on the part of their employer and instead will be left to rely upon the common law of negligence.

The majority of Health and Safety regulations have the benefit of the defence of 'reasonable practicability'. However there are a few regulations which impose strict liability and the duties enforced by the regulations are absolute. In those instances there is no need to prove negligence because if breach has led to injury, the employer is responsible regardless of whether or not reasonable steps could or have been taken.

The government carried out an impact assessment entitled Strict Liability in Health and Safety at Work Legislation (www.bis.gov.uk/assets/biscore/corporate/docs/s/12-1219-strict-liability-health-safety-at-work-impact) following Professor Löfstedt's report. The government noted that the current drafting of section 47(2) of HSWA confers an explicit right of civil action for breaches of regulations (unless a particular set of regulations provide otherwise) leaving no discretion to implement the policy other than by legislative means.
The options it considered to rectify this ?situation were:

1: target strict liability duties and either qualify them with 'reasonably practicable' or prevent civil liability from attaching to them; or

2: prevent civil liability from attaching to all duties under health and safety regulations by amending section 47 HSWA.

The assessment noted that option one would require reviewing all health and safety regulations, and option two would simply reverse the existing position in section 47(2) as a whole so each regulation would not require review and a breach of statutory duty would no longer attract civil liability. The government rationalised that option two would mean compensation claims for breach of regulations could be brought under the common law duty of care where negligence has been proved.

When introducing the clause in the House of Commons on 16 October 2012, Matthew Hancock MP, said: 'Professor Löfstedt considered the impact that the perception of a compensation culture has had in driving over-compliance with health and safety at work regulations. The fear of being sued drives businesses to exceed what is required by the criminal law, diverting them from focusing on sensible preventive health and safety management and resulting in unnecessary costs and burdens.' Opposing MPs cautioned against legislating on the basis of perception of health as opposed to reality. Labour MP David Anderson asked whether 'we will end up with under-compliance, which will lead to more people dying?'. His colleague, Iain Wright MP, added that the clause 'will do nothing to enhance recovery and enterprise, and might have the unintended consequence of making the health and safety environment less safe'.

Professor Löfstedt's exact recommen-dations were for 'regulatory provisions that impose strict liability to be reviewed and either qualified with reasonably practicable where strict liability is not absolutely necessary or amended to prevent civil liability from attaching to a breach of ?those provisions'. There was no indication that civil liability for breach should be entirely removed.

The use of the term 'over-compliance' is muddying the waters. In my opinion, there is either compliance or there is not. If an employer goes beyond what is expected of him, this should be seen as a positive approach to health and safety. Where employers endorse measures which are nonsensical or disproportionate due to lack of understanding of the regulations then this should be addressed by education rather than being deemed as 'over-compliance'. The sensible approach would be to consider why particular regulations have been drafted so that there is strict liability upon breach. There are many laws (for example traffic laws) where strict liability exists to tackle situations which are inherently dangerous. The use of strict liability helps to prevent needless loss by forcing potential defendants to implement precautions. This should include ensuring that an injured party has recourse to financial restitution.

Where the law creates a situation which unfairly penalises an employer then those regulations can be targeted specifically. ?The solution is not to remove civil ?liability entirely.

Proving fault

The amendment if passed will mean ?that the regulations will fall under the ?remit of the HSE only. Although a claimant may be able to argue that breach of a regulation is pertinent in demonstrating negligence, the breach will not in itself ?give rise to civil liability. As a result rather than the burden being placed on the employer to demonstrate what steps ?they have taken to protect their employee, the burden would be on the employee to prove that the employer's negligence ?caused the injury.

The effect of the government's current proposal will simply shift the burden of 'unfair regulations' from the employer to the employee. Employers and insurers are already in a position of power. The current proposals will lead to an unequal playing field. The rationale behind this amendment must therefore be questioned.

The concept of strict liability is not new. The proposed amendment to the RRRB reverses laws dating back to 1898 and the case of Groves v Lord Wimborne [1898] 2 QB 402. This case was the starting point for ?the co-existence of the employer's liability for breach of his common law duty of ?care and liability for breach of stricter ?and more detailed obligations laid down ?by statute.
Since Groves it has been accepted that legislation protecting safety in the workplace gives rise to civil action for breach of statutory duty.

In the case of Black v Fife Coal Co Ltd [1912] AC 149 the court held that where parliament is dealing with a new or increased social mischief involving high risk to the personal safety of individuals, the likelihood is that it intends the law to give them adequate protection. This case goes to the heart of why strict liability provisions for breach of health and safety regulations were enacted.

Well-known defects in the law of negligence existed until the decision in Wilsons & Clyde Coal Co Ltd v English [1938] AC 57, where the House of Lords held that an employer has a non-delegable duty to create a safe system of work. Lord Thankerton stated 'when a workman contracts to do work, he is not to be held as having agreed to hold the master immune from the latter's liability for want of due care in the provision of a reasonably safe system of working'.

The principles in these cases gave rise to the health and safety regulations we know today. Ironically, this amendment targets regulations and laws that were enacted by previous Conservative governments.

The Enterprise and Regulatory Reform Bill has now moved to the House of Lords.

It appears that enforcement for breach of regulations will be through the HSE only. HSE enforcement rates are already very low due to underfunding. The Fee For Intervention (FFI) scheme introduced in October 2012 may ease some financial burden placed on the HSE but it is not clear how far reaching and effective the FFI will be since it is in its infancy and untested by the passage of time.

It appears that the government is again looking to appease the insurance industry to the detriment of claimants under the guise of tackling the compensation culture which has repeatedly been proven not to exist. Rather than targeting perception they are choosing to alter reality. It remains to be seen whether reforms to the law will as feared have the most significant impact on people who are injured and, in many circumstances, are at their most vulnerable.