The Enterprise and Regulatory Reform Act 2013: Does it really protect workers in personal injury claims?

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1 October 2013 saw the introduction of an amendment to health and safety legislation introduced by the Enterprise and Regulatory Reform Act 2013. Our personal injury team comments on its implications.

What is the Act and what new changes does it bring in?

The Enterprise and Regulatory Reform Act 2013 ('ERRA') came into force on 25 April 2013 with most of its operative provisions being brought into effect by subsequent statutory instruments.  It makes a number of reforms which will potentially have wide ranging implications for businesses and consumers. This article will consider the implications that the ERRA will have in terms of personal injury claims.

The most wide ranging impact in this respect is the amendment introduced to section 47 of the Health and safety at Work etc. Act 1974 ('HSWA') by section 69 of the ERRA. Section 47 used to carry a presumption that all Regulations made under the HSWA (the 'Six Pack Regulations' regularly pleaded in personal injury claims, e.g. Work Equipment Regulations, Manual Handling Regulations, Personal Protective Equipment Regulations etc.) carry a liability for breach of duty unless otherwise excluded. This meant that an employer was automatically liable for some workplace injuries purely on the basis of health and safety regulatory breaches, regardless of fault.

The amendment introduced by the ERRA will have the effect of undoing that presumption by requiring employees to produce evidence in support of the fact that their employer had been negligent and had failed to take all steps reasonably practicable to comply with the Regulations.

When does the change happen?

This change came into force on the 1 October 2013 and will apply only to accidents occurring after this date.

What effect will this have in practice?

The effect of this amendment will be that from 1 October 2013, if an employer fails to meet the standards set out in the relevant Regulations which results in injury of the employee, the employee will no longer be able to bring a successful civil claim simply by citing the relevant statutory breach. Instead, an injured employee will need to be able to show that the employer had been negligent, with the statutory breach being only one element of the negligence.

Take for example, a claim for defective work equipment.  Since Victorian times there has been the principle of strict liability in recovering for injuries as a result of defective work equipment i.e. if the equipment provided to you by your employer was defective then this would be sufficient to win your claim. You did not have to establish any more than this.

An interesting example from the Victorian era is the case of Yarmouth v France.  In this case the Claimant's job was to drive carts and unload the goods carried in them. One of the horses pulling the cart was one of a vicious nature seemingly unfit to be driven even by a careful driver.  The Claimant objected to having to drive the horse. He was told by his foreman to do so.  He did and in doing so he was struck by the horse and his leg was broken. Liability was established against his employer on the basis that the temperament of the horse (it being of vicious nature) was a defect in the condition of the plant that was provided for his employment and he recovered compensation in full.

In the more recent case of Stark v Post Office (2002) further guidance was given under the current Provision and Use at Work Equipment Regulations 1992, which impose an absolute obligation to employers to ensure that work equipment is maintained in an efficient state and efficient working order and in good repair.  In this case the Claimant was a Postman.  In the course of his delivery he was using a bicycle.  He was riding along when without warning the front wheel locked and he was propelled over the handle bars. The actual cause of the bicycle wheel locking was not and could not have been discoverable on any routine inspection but, the Court held that the statutory duty was absolute and found in favour of Mr Stark.

The amendment introduced by the ERRA from October 2013 will mean that Mr Stark would now have to prove that his employer had not done all that was reasonably practical to prevent the bicycle wheel from locking, by producing expert evidence. This places a heavier burden on employees by complicating their journey to establishing liability. An easier route for Mr Stark in the above scenario would be to consider using the Employers Liability Defective Equipment Act to bring his claim as it will not be affected by the changes to the HSWA Regulations.

In summary, whilst injured employees will still be able to bring a claim against employers using the Regulations enacted under the HSWA it will evidentially become more difficult with the burden of proof being shifted onto them.

It is important to note that although a breach of the Regulations would not by itself be sufficient to establish civil liability, such breach could still be potentially a criminal offence under section 33(1)(c) of the HSWA.

Are there any exemptions?

The Government issued a consultation between 6 June and 20 June on whether workers who are pregnant, recently given birth or breast feeding should be exempt from the above changes. Following the consultation, the Government has created an exemption for the above categories of workers. This means that health and safety duties to new and expectant mothers are to remain strict liability and workers falling under this category will not be required to prove anything other than health and safety regulatory breach by their employer. The reason for this exemption is that the Pregnant Workers Directive (EEC 92/85), unlike other health and safety directives, requires EU Member States to enable pregnant workers who believe they have been wronged by a failure to comply with duties in that Directive to enforce their rights.

Are the changes compatible with EU Law?

Concerns have already been raised as to whether:

a) The change in the Law will be compatible with EU Law

b) The current proposed exemptions to Section 47 are discriminatory.

In relation to the former it is mooted that individuals who work for an emanation of the state such as Police Officers or Nurses will be able to bring claims against the State for failure to implement Legislation that is at least as protective as the European Union Directive on Health & Safety at Work. This avenue would however only be open to these individuals.

In relation to the latter, the exemptions introduced in relation to new and expectant mothers could potentially lead to claims for discrimination on the basis that it will create two categories of claimants with one being at an advantage over the other in brining a workplace claim.

It will be interesting to see what effect these changes will have on personal injury claims in practice.

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