• Robert Spicer

Health and safety under attack

The Enterprise and Regulatory Reform Act, which received the Royal Assent on April 25, has significantly changed employees’ rights in relation to injuries in the workplace. The essence of the change is that civil liability will no longer automatically attach to a breach of health and safety regulations which impose a strict duty. Before the passing of the Act, employees could bring claims for compensation in negligence and for breach of statutory duty in relation to injuries and death suffered in the workplace. Under section 47 of the Health and Safety at Work, etc., Act 1974, there is a legal presumption that all health and safety regulations involve civil liability unless expressly included. The new Act reverses this presumption. No regulations will impose civil liability unless there is express provision to that effect. There will be no civil enforcement for breach of health and safety regulations. Employees will have to rely on actions for common law negligence. This means that the burden of proof, instead of being on the employer to show what steps were taken to protect an employee, shifts to the employee to prove negligence. The case of Groves v Lord Wimborne (1898) established that there could be combined civil actions for common law negligence and for breach of statutory duty. In that case, the plaintiff was a boy employed by the defendant. Amongst the machinery in the works was a steam winch with revolving cog-wheels, at which the plaintiff was employed. These cog-wheels were dangerous to a person working the winch unless fenced. There was evidence that there had originally been a guard or fence to these cog-wheels, but it had for some reason been removed, and there had been no fence at the wheels while the plaintiff was employed at the winch, a period of about six months. While the plaintiff was employed, his right arm had been caught by the cog-wheels, and was so badly injured that his forearm had to be amputated. It was held by the Court of Appeal that an action will lie in respect of personal injury suffered by a workman employed in a factory through a breach by his employer, the occupier of the factory, of the duty to maintain fencing for dangerous machinery imposed on him by s5(4) of the Factory and Workshop Act 1878. The defence of common employment is not applicable in a case where injury has been caused to an employee by the breach of an absolute duty imposed by statute upon the employer for his protection.

The enforcement of health and safety regulations will now be left to the HSE. It has been commented that the government, in introducing this part of the 2013 Act, is looking to appease the insurance industry to the detriment of clients, under the guise of tackling the “compensation culture”. The MP who introduced the relevant clause stated that the fear of being sued drives businesses to exceed what is required by the criminal law, diverting them from focusing on sensible prventive health and safety management and resulting in unnecessary costs and burdens.

The Association of Personal Injury Lawyers has been reported as having made the following comments: • Ministers have played fast and loose with employees’ safety in their obsession with cutting what they see as health and safety red tape. • Not only is the new law completely illogical to most right-thinking people, it also reduces the strength of current employment protection and will make pursuing an injured person’s rights more complicated and more expensive. The Shadow Justice Minister commented that the new law was part of a sustained campaign to rebalance the civil justice system away from the individual victims and small businesses, in favour of large corporations and vested interests whom the coalition government favours. It has also been commented that the change was the latest measure to hit people’s ability to be properly compensated for injury. Employees needed only to show that a machine was inadequate or defective. Now they have to prove that an employer could and should have spotted the defect before the incident , and rectified it. There are 78,000 civil claims for compensation following accidents at work

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