EMPLOYERS' LIABILITY AFTER SECTION 69

'Was I deceived, or did a sable cloud 

Turn forth her silver lining on the night?' 

John Milton, Comus, 1634

As my previous post acknowledges, in A world turned upside down, section 69 of the Enterprise and Regulatory Reform Act 2003, abolishes civil liability for breaches of statutory health and safety regulations conferred under section 47 of the Health and Safety at Work Act 1974.  This will deny many injured victims the compensatory redress they are currently entitled to if they cannot establish and prove their claims under ordinary common law negligence principles.

Some have argued that the effect of section 69 is to ‘put the health and safety clock back to Victorian times’. Fortunately, the reality is not nearly so bad and I have four main reasons for thinking so.  

The first has to do with the very essence of the common law as a flexible and living concept.  It has evolved considerably since the nineteenth century.  It took three giant strides beginning with Lord Atkins ‘neighbour’ principle from Donoghue v Stevenson [1931] UKHL 100.   Next came Mr Justice Swanwick’s test for determining the standard of foresight expected of a  ‘reasonable and prudent employer’ in Stokes v Guest 1968 [1968] 1 WLR 1776:   

     “…the overall test is still the conduct of the reasonable and prudent employer, taking positive thought for the safety of his workers in the light of what he knows or ought to know; where there is a recognised and general practice which has been followed for a substantial period in similar circumstances without mishap, he is entitled to follow it, unless in the light of common sense or newer knowledge it is clearly bad; but, where there is developing knowledge, he must keep reasonably abreast of it and not be too slow to apply it; and where he has in fact greater than average knowledge of the risks, he may be thereby obliged to take more than the average or standard precautions”.

Then, for those unusual cases where no obvious precedent exists for a duty of care, there is the tripartite test set out Caparo Industries v Dickman [1990] UKHL 2. 

Another reason for optimism has to do with the fact that the concept of reasonableness, which lies at the heart of common law tort of negligence, is a contextual phenomenon.  What is ‘safe’ or ‘reasonable’ is to be judged by the standards of the time.  Consequently, as our understanding of the causes of industrial disease and accidents increase, so too does the generally acceptable tolerance of justifiable risk diminish.  These factors influence the evolution of the common law standard of care to be expected by the reasonable and prudent employer.  Equally relevant are the improved standards of health and safety imposed on the United Kingdom by the European Community.  An obvious example is the European Framework Directive (89/391/EEC) and the plethora of Regulations that transpose this and other European Directives, starting with what became known as the ‘Six Pack’ but including much later initiatives such as the Work at High Regulations or the Construction (Design and Managements) Regulations 2007.  Although the vast majority of these regulations will not attract civil liability where they are breached, thanks to section 69 of the Enterprise and Regulatory Reform Act 2013, the set new and often heightened standards.  Similarly, the Health and Safety Executive’s Guidance (now freely downloadable online) impose a high standard of care that any court applying a common law test can hardly ignore.  So with the loss of strict and absolute liability for breaches of statutory health and safety regulations, we may yet see a new emphasis given to Mr Justice Swanwick’s test so it remains as relevant to a post s69 Enterprise and Regulatory Reform Act employer as is does now. 

A third reason for cautious optimism is that whilst s69 does do away with the statutorily imposed reversal of the burden of proof, there will nevertheless be occasions when a claimant will be able to establish on common law principles a prima facie case against an employer and thereby to effectively impose a reversal of the burden of proof that way.  Practitioners are well used to working with this concept, in its statutory manifestation such as in the oft cited precedent of Larner v British Steel Plc [1993] IRLR 278.  They will now be encouraged to explore the full extent to which res ipsa loquitur ,its common law cousin, can be applied to a work place accident claim.  Take for example, a case where an employer has a long history of similar incidents or injuries that were reasonably preventable.  If a claimant is injured in almost identical circumstances that were (i) under the employers effective control and (ii) where the claimant is not in a position to know precisely what act or omission the employer is responsible for and for which no other plausible explanation exists, then where a court concludes that what happened is more consistent with negligence than not, it may may well find that the circumstances raise a rebuttable presumption of negligence against the employer.  There may also be occasions where, even absent a culpable track record, the circumstances of the accident are such that in the absence of any alternative explanation the circumstances are more consistent with an employers’ negligence than not so as to raise an inference of negligence.  Every law student will remember the barrel of flour case: Byrne v Boadle [1861-73] All ER Rep Ext 1528.  However, it will readily be seen that the scope of this common law evidential rule has a narrower application the statutory imposed alternative.

Finally, there is the hope that the judiciary, who will be sensitive to the new balance of advantage introduced by s69 will develop the common law where it can.  After all it was the judiciary that coined the equitable maxim: where there is a right there must be a remedy. Perhaps this is not too fanciful a hope.  One need only recall to mind the extraordinary development of the doctrine of vicarious liability in recent years;  to cover sexual abuse by priests.

Furthermore, for those practitioners who are ready and prepared to fully utilise the extensive armoury of tactical weapons contained within the Civil Procedure Rules and Pre action protocols, as well the new opportunity presented by qualified one way cost shifting, there is every chance that a great deal of profitable work will be gained.  It seems almost inevitable that even more employers’ liability claims will be contested and fall out of the extended portal.  It is just conceivable that by 2014 some will think that they have never had it so good!