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The abolition of civil liability in employer’s liability claims – an early indication of the Courts’ approach?

News | Tue 29th Sep, 2015

Section 69 of the Enterprise and Regulatory Reform Act 2013 amended section 47 of the Health and Safety at Work etc. Act 1974 in so far as it relates to civil liability. The section now provides that breach of a duty imposed by a statutory instrument containing health and safety regulations shall not be actionable except so far as regulations made under the 2013 Act so provide. The Act applies came into force on 1st October 2013 and applies to all accidents arising after that date.

There was much debate amongst practitioners in the field of personal injury about what effect the repeal of civil liability would have in the context of employer’s liability claims.  The general consensus seemed to be that in order to reflect the statutory purpose behind the changes there must be some substantive difference in the way that the courts would approach these cases, otherwise the exercise was a futile one.

There are not, as far as this author is aware, any relevant reported decision of the English Courts which post-date the changes.

However, in the Scottish case of Gilchrist v ASDA (2015) Rep. L.R. 95 Lady Stacey, sitting in the Outer House, approved the following submissions made by Counsel for the Pursuer (the Claimant) about the effect of the changes:

Counsel submitted that employers remain under a statutory duty to comply with health and safety regulations, as the duties set out in statutory instruments made prior to the 2013 Act inform and may define the scope of duties at common law. She made reference to a ministerial statement in the House of Lords in which a government spokesman stated that the Act did not undermine core health and safety standards and that employers’ statutory duties would remain relevant as evidence of standards expected of employers in civil cases. She argued that an employer who breached a regulation and was thereby committing an offence could hardly argue that he was acting reasonably. She referred to Munkman, p.668, Charlesworth and Percy, para.12–73 and Robb v Salamis (M&I) Ltd . Counsel argued that the existence of a regulation demonstrates that harm is foreseeable, under reference to Boyle v Kodak in which Lord Reid said: “Employers are bound to know their statutory duty and to take all reasonable steps to prevent their men from committing breaches” ([1969] 1 W.L.R., p.668).”

It should be noted that Counsel for the Defender did not offer any alternative submissions and therefore it would appear that the Court did not hear any proper argument on the issue. Nonetheless, it is noteworthy that a Court at this level was willing to accept the pursuer’s submissions so readily and it will be interesting to see how the case law develops in England and Wales in due course.

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