Vital Health and Safety Protection Scrapped

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From 1 October 2013 vital health and safety legislation will be watered down to reduce protection for employees who suffer personal injuries at work.

An update to section 69 of the Enterprise and Regulatory Reform Act 2013 (ERRA) will amend section 47 of the Health and Safety at Work etc. Act 1974 (HSWA).  The HSWA obliges employees to ensure, as far as reasonably practicable, the health and safety of their employees and member of the public who may be affected by their activities.  Breaches may lead to intervention by the Health and Safety Executive, fines, or even prosecution.  The HSWA repealed much of the old legislation and consolidated the rules under one statutory roof, with provision for other Regulations to be created under its guise in order to comply with EU Directives.

Section 47 HSWA specifically excludes civil actionability for breaches of sections 2 to 7 inclusive; in other words, a breach of the HSWA resulting in personal injury does not give rise to a right to sue for compensation.  However, the HSWA does go on to say “Breach of a duty imposed by health and safety regulations shall, so far as it causes damage, be actionable except in so far as the regulations provide otherwise.”.  Admittedly, slightly confusing, but although there are specific exclusions on civil actionability for breaches of the HSWA this subsection retains the right to sue in a civil court for any other, non-excluded, breaches of Regulations created under the Act.  Most of the health and safety Regulations created under HSWA in accordance with EU Directives do not specifically exclude civil actionability (with some exceptions) so breaches of, say, the Provision and Use of Work Equipment Regulations 1998 can be cited in a civil court in support of a claim for personal injury damages.  Often, allegations of statutory breaches will run alongside common law arguments of negligence, both reinforcing each other

From next month, section 69 ERRA will change to say “Breach of a duty imposed by a statutory instrument containing (whether alone or with other provision) health and safety regulations shall not be actionable except to the extent that regulations under this section so provide”.  The “catch-all” provision of allowing civil actionability unless the statute specifically excludes it has effectively been removed in favour of an exclusionary presumption across the board.

So why is this significant?  Well, supporters of the Government’s plan to remove regulatory burden on business would say that the amendments will reduce litigation, which in turn will reduce the cost to businesses of insurance premia and other expenses.  But is reducing litigation actually a good thing?  Reducing the number of court cases does not affect the number of accidents which actually occur.  People will still be injured at work unnecessarily.  They can still bring a civil claim for damages against their employer.  The only difference will be that the injured employee will need to rely upon negligence arguments alone, as they will not be able to cite statutory breaches.  Given that negligence involves no hard and fast rules as to what will constitute a breach of a duty of care, whether an employer should be compensating an employee or not will become far more difficult to determine.  And when that happens, more cases go to court.  In other words, removing civil actionability reduces certainty, which gives greater scope for argument, resulting in fewer “out of court” settlements at minimal cost but more cases proceeding to trial at huge cost.

This year has seen an unprecedented amount of legislation being enacted in a vain attempt to reduce the cost of litigation.  It is sad to see that the Government has ignored many of the suggestions made by the very people it has paid to consult on the issues, bringing in those ideas that it deems to be politically advantageous but ignoring the rest.  The result is a mishmash of poorly executed legislation which will leave injured parties uncompensated or financially worse off, and law firms out of business.

 If you have been involved in an accident at work call David Mayor or any of our Personal Injury Solicitors for a free consultation on freephone 0800 975 2463, or contact us by email for free expert legal advice.

David Mayor

About David Mayor

David is Head of the Preston Office's Civil Litigation team and deals with all types of private Civil Court disputes. David’s blogs cover his expertise in all aspects of personal injury law from low value Road Traffic Accidents right through to complex large loss claims. David also writes and has a vast array of experience in Public Liability (trips and slips), Employer's Liability (accidents at work), and Motor Claims (motor vehicle accidents, pedestrian accidents).
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