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Abigail Stamp and James Bentley, Guildhall Chambers Section 69 and the reasoning behind it
Abigail Stamp and James Bentley, Guildhall Chambers
Section 69 and the reasoning behind it
Section 69 of the Enterprise Act came into force on 1 October 2013 (SI 2013/2227) and applies to all claims arising out of accidents which occur after that date.
Section 69 has its roots in the recommendations of Professor Lofstedt in his report, "Reclaiming Health and Safety for All". He suggested a removal of strict liability. In fact, however, the government appears to have gone further and has purported to remove civil liability from all health and safety regulations, strict or otherwise. Thus, Health and Safety Regulations are now intended to be effective only as provisions attracting criminal sanction.
Before Section 69 came into force, any regulation which had its origins in section 15 of the Health and Safety at Work Act 1974 attracted civil liability unless stated otherwise in the regulation itself (see s 47). This presumption has been reversed, so that no regulation is actionable of itself unless otherwise stated in that regulation. To the extent that the regulations (such as s 45 of the Construction (Design and Management) Regulations 2007) previously expressly provided that civil liability attached to certain sections, the sections making provision for civil liability appear to have been repealed (SI 2013/1666).
As a result all workplace claims arising out of accidents which take place after 1 October 2013 will now need to be pleaded in negligence rather than as a breach of statutory duty. It is likely, however, that the court will find that the regulations, whilst not directly actionable, provide good guidance as to the risks a ‘reasonable and prudent employer' should be aware of and the action to be taken in respect thereof: See Franklin v Gramophone  1 KB 542 at 558, and NCB v England  AC 403 HL for examples of this approach.) On the other hand it can be argued that the regulations were intended to be more stringent than the common law and it cannot have been the intention of parliament to allow the regulations to remain effective by the backdoor, having expressly shut the front door to civil liability. For the time being Claimants will presumably argue that reasonable employers comply with the criminal law and thus, for example, should undertake manual handling risk assessments and reduce the risk arising from manual handling activities to the lowest level reasonably practicable, and that a failure to do so is negligent. Further, as has always been the case, if the Court concludes there has been a deficient implementation of an EU directive, in appropriate circumstances this can be rectified by the Court adopting the directive's standards as those which a reasonable employer would comply with and thus enforcing those standards under the law of negligence. As such whilst claims will now need to be pleaded in negligence, the regulations and directives can be cited within the particulars of claim as evidence of breach.
The particular problem for claimants, of course, comes in respect of claims which would previously have been based upon a breach of regulation which imposed strict liability such as Regulation 5 of the Provision of Use at Work Equipment (ensuring equipment is maintained in an efficient state, in efficient working order and in good repair). It cannot be negligent to protect against a risk which cannot be avoided. Thus in such cases greater emphasis will need to be placed on obtaining disclosure of maintenance records as well as possible engineering evidence in order to establish why the piece of work equipment failed and thus whether there was a degree of fault which made the accident avoidable. It may be possible to argue that an accident caused by defective work equipment raises a prima facie case of negligence, and that by analogy to the principles set out in Ward v Tesco  1 All ER 219 which are regularly relied upon in super market slipping cases, the burden should shift to the employer (who has control of the work equipment and maintenance records) to demonstrate the presence of a reasonable inspection regime, and thus that the accident was more consistent with a lack of fault than the presence of fault.
In addition it is likely that arguments will follow as to whether section 69 represents effective implementation of the EU Directives which prompted the UK regulations. Where the directive is sufficiently precise, consideration should be given to pleading that the directive has "direct effect" as against a defendant which is an emanation of the state such, as an NHS hospital or local authority. Note, however, that this is unlikely to bypass the removal of strict liability under regulation 5 PUWER as in imposing strict liability Regulation 5 exceeded the requirements in the Directive in any event.