Health And Safety Reform And Its Impact On Civil Liability

Since 1898 health and safety legislation has been clear and understood. Currently, under the Health and Safety at Work Act 1974, if a worker is injured at work and they are able to prove that their employer has breached a statutory duty contained within the Health and Safety Regulations then they will be entitled to compensation. This principal is contained within Section 47(2) of the Health and Safety at Work Act which states that a:

"Breach of a duty imposed by health and safety regulations shall, so far as it causes damage, be actionable except in so far as the regulations provide otherwise."

In practice, strict liability is imposed in a limited set of situations where the employer has control of a dangerous situation. The Health and Safety Executive has reported that between 2011 and 2012 there were 156,000 work place accidents causing an injured employee to take more than 7 days` sickness absence. Of those accidents, 584 resulted in prosecutions.

In November 2011 the Government commissioned a review of health and safety law, which was carried out by a leading risk management specialist, Professor Ragnar Lofstedt. He suggested that strict liability should be reviewed and either, qualified with `reasonable and practicable` where strict liability is not absolutely necessary, or amended to prevent civil liability from attaching to a breach of those provisions. He also writes that there is no case for radically altering current health and safety legislation. The Government has sought to implement these recommendations whilst diminishing the perception of a `compensation culture` and reducing the burden of excessive health and safety rules on business, which is described as "stifling innovation and growth". Viscount Younger also remarks on whether employers should always have the opportunity to defend themselves against a compensation claim when they have done nothing wrong and have taken all reasonable precautions to protect their employees. For example, where an employer is held responsible for a faulty machine that injures a worker but had no reason to know it was faulty.

The new proposal`s contained in the Enterprise and Regulatory Reform Bill amends the Health and Safety at Work Act 1974 by introducing a new clause (69). Where an employer breaches health and safety regulations and injures an employee, that employee will no longer have a consequential right to compensation alternatively they will be obliged to rely solely on the law of negligence. The law of negligence is much more complex and places the burden of proof with the injured party, although under most circumstances it will be the employer with the knowledge about systems of work, tools, policies and procedures. Subsequently, much more evidence will be required including additional witnesses, statements and documents, therefore litigation will be more protracted and expensive. More importantly the situation will become especially difficult if the employee has been killed.

The Association of Personal Injury Lawyers (APIL) and other bodies have opposed the amendment, describing the proposal as being constructed in haste and without a proper consultation or an independent review founded on hard evidence. They suggests that prior to introducing the Enterprise and Regulatory Reform Bill it would have been appropriate to carefully review the current health and safety law, striking a balance between the multiplicity of factors involved, including the rights of the employee and the employer.

However, the proposals appear to have gone much further than anticipated and are likely to affect at least 70,000 cases across England, Wales and Scotland. The new clause is likely to have a significant detrimental impact. Restricting access to Justice for employees injured at work, allowing safety standards to fall as employers will find it much easier to escape civil liability and placing additional pressure on the states resources to provide resolutions where the employer should bear the responsibility and the cost. Rogue employers who flout the regulations will feel more comfortable knowing that they are also unlikely to be prosecuted by the Health and Safety Executive given the recent cuts to public finances. Despite these concerns the Lords` vote was the final word and the amendment will come into force under section 69 of the Enterprise and Regulatory Reform Act.

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