Health and Safety- Changes to Civil Liability

Sarah Daniels The RedCat Partnership Ltd

Last week, the House of Lords voted again on the Government's proposed changes to civil liability for employers who breach health and safety legislation.

The Lords had previously voted against Clause 62 of the Enterprise and Regulatory Reform Bill, removing civil liability for such breaches but that was overturned in the Commons, and the matter was returned for further consideration by the Lords earlier this week.

The ‘controversial change’ (not much in real life in our opinion) will see an amendment to s47 of the Health and Safety at Work Act 1974, removing the existing right of an employee to rely on a breach of health and safety legislation, in order to obtain compensation.

The current law provides that where statutory health & safety regulations are not complied with leading to injury or damage, the claimant can seek compensation on the basis of the employer's breach of those regulations. The changes mean that it will only be possible to claim compensation for accidents which would currently constitute a breach of health and safety regulations where it can be proved by the claimant that the employer has been negligent at common law.

The proposals stem from Professor Lofstedt's report, "Reclaiming health and safety for all: An independent Review of health and safety legislation" which recommended an overhaul to the regulatory system, including the reduction of (perceived) red tape & the review of strict liability for civil actions.

However, in his progress report published earlier this year, the Government's approach to civil liability is "more far reaching" than Professor Lofstedt anticipated.
Suggestions have also been made that this change will place a heavy reliance on the Health & Safety Executive to ensure compliance, particularly given recent funding cuts (about 35%).

However, those in favour of the change argue that it is not justifiable to hold employers' liable for incidents outside of their control, which could not reasonably have been prevented and that the change is required to address a perceived and growing "compensation culture".
The Government's view is that fear of civil suits is causing employers to over implement health & safety requirements and to insist on unnecessarily cautious work practices, both of which are increasing costs and reducing business growth, and stopping people from doing things sensibly- hiring an expensive work platform – when a bit of planning, a well maintained ladder and 2 competent members of staff could have done the job

Concerns have been raised about the impact that the removal of civil liability for health & safety breaches will have on injured parties.

At present, an employer can often defend a civil claim for breach of health & safety regulations on the basis that it has taken all reasonably practicable steps to comply with its duties. There are a few limited circumstances where strict liability applies, allowing an employer no defence if a breach of the relevant regulation is established.

For example The requirements of the Lifting Operations & Lifting Equipment Regulations 1998 (to thoroughly examine lifts/ lifting gear) & the requirement for a Written Scheme of Examination under the Pressure systems (Safety) Regulations 2000 are examples of strict liability, many other requirements have the caveat so far as is reasonably practicable’ which gives business the opportunity to devise a cost/ benefit solution but is obviously open to (mis)interpretation and over zealous enforcement/ action

During the Lords' debate, the Government argued that the cases that will be most significantly affected by this change are "those which would have previously relied on an absolute or strict liability duty". This argument appears to be based on the assumption that the issues and evidence to be considered for a claim in negligence will still be broadly the same as those which currently apply in relation to claims brought for a breach of statutory duty where the "reasonably practicable" defence is available, and that therefore the change will not place any greater burden on claimants than they currently face.

However, the removal of strict liability would seem to move the risk of injury through simple misfortune from the employer to the employee, and seems to be a step away from the "no fault" approach to compensation which some have argued for.
The Lords' vote means Clause 62 will be included as part of the Enterprise and Regulatory Reform Bill when the bill receives royal assent.

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