The next step

On liability

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Employers no longer to be held strictly liable

Promises

As we mentioned recently, the government has announced that legislation will be introduced to change the current “strict liability” regime (yr.11, iss.5, pg.8, see The next step). This is in response to concerns that businesses could automatically be liable for compensation in some circumstances, even where they weren’t at fault.

What is “strict liability”?

Health and safety regulations are frequently qualified with the phrase “so far as is reasonably practicable”. This doesn’t mean that the employer must do all that is “possible”, but instead recognise the balance to be made of the time, trouble and effort relative to the actual risk. On the other hand, some regulations contain strict liability clauses. For example, the Provision and Use of Work Equipment Regulations 1998 state: “Every employer shall ensure that work equipment is maintained in an efficient state, in efficient working order and in good repair”.

Unfair

When an employee is injured and wishes to claim civil damages from their employer, they can sue for “negligence”, “breach of statutory duty” or, indeed, both. This means that if the claimant can use a strict liability clause such as the one described above, they can receive compensation, even where their employer has done everything they can. This happened in the case of Stark v Post Office2000 when an employee successfully won a case after he was injured in a bicycle accident. The fact that the bicycle’s brakes failed while in use was sufficient to show a breach of duty. It was no defence that the fault was undetectable in advance.

All change?

The Enterprise and Regulatory Reform Bill is currently making its way through Parliament. It includes a clause that will amend the Health and Safety at Work etc. Act 1974 (HSWA) . The Bill has passed the Commons’ third reading stage and will now proceed to the House of Lords for consideration. The clause proposes an alteration to the existing wording of s.47 of the HSWA. The change would mean that a breach of regulations could only be used in civil cases if the regulations in question specifically said so. The amendment also allows new defences to be outlined which could be used by employers accused of a breach of statutory duty.

The likely impact

As stated in the explanatory notes to the Bill, the result will be that, “it will only be possible to claim for compensation in relation to breaches of affected health and safety legislation where it can be proved that the duty holder (usually the employer) has been negligent” (seeThe next step). However, there will be some exceptions where the particular regulations specify it.

Tip. Don’t be too drawn in by the sentiment. The change won’t have any impact on criminal law, and claims for negligence will still be possible so you need to keep paying attention.

For a previous article (HS 11.06.05A) and for a copy of the Bill’s explanatory notes (HS 11.06.05B), visit http://healthandsafety.indicator.co.uk.