Employers’ liability, public liability and disclosure: Updates

Enterprise and Regulatory Reform Act 2013

What is provided for?

The Enterprise and Regulatory Reform Act 2013 (“the 2013 Act”) had a wide-ranging effect, notably in employment law generally. PI practitioners will be particularly concerned with section 69 of the Act, which amended section 47 of the Health and Safety at Work Act 1974 (“the 1974 Act”).

The ‘old’ section 47 of the 1974 Act stated:

“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.”

In sum, unless a health and safety regulation specified otherwise, an individual could rely upon the breach of that regulation for injury or damage. That could usually be done on a strict liability basis, in that a claimant needed only to prove breach of the regulation rather than fault or negligence.

The amended section 74 reads:

“(2) 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.

(2A) Breach of a duty imposed by an existing statutory provision shall not be actionable except to the extent that regulations under this section so provide (including by modifying any of the existing statutory provisions).”

The presumption has shifted. It is now the position that unless a regulation explicitly gives rise to a cause of action, it cannot be relied upon on a strict liability basis to prove breach of duty.

No retrospective effect

The 2013 Act impacts on causes of action after 1 October 2013.

However, section 69 of the 2013 Act states:

“The amendments made by this section do not apply in relation to breach of a duty where that breach occurs before the commencement of this section.”

Therefore, the Act would not apply to, for example mesothelioma or other industrial disease cases where the breach of duty occurred pre-October 2013.

The effect of the provision

The full implications of the 2013 Act are yet to be seen, but a few points which may arise are:

(a)    Requirement to prove fault: There is an end to claims based solely on breach of a statutory provision without any allegation of negligence or fault. This will affect the major statutes Claimants rely in including the ‘six pack’ regulations, but also other regulations designed to protect employees such as the Work at Height Regulations 2005 and the Control of Substances Hazardous to Health Regulations 2002.

(b)    Contention with EU law: The question will inevitably arise as to whether health and safety EU directives go further than UK legislation. If so, a Claimant may assert that they can rely on the direct effect of the directive.

(c)    Disclosure: As Claimants will need to prove fault, they will need to assess their case at an earlier stage and there will be a frontloading of cases. More disclosure is likely to occur pre-action.

(d)    Expert evidence: Claimants will need to rely on expert evidence to a greater extent than before given the need to prove fault. This could lead to the costs of cases increasing.

Of course, the Secretary of State has the power to make regulations under section 69 which exclude certain provisions from its effect. This may change the implications of the 2013 Act on these types of claims.

The relevance of the regulations to a claim in negligence.

Claimants will be well-advised to plead any relevant regulations to set the standard of a reasonable employer. The regulations will no doubt be relevant to the question of whether there has been a breach of the general duty of care.

Recent Cases

Public liability

Woodland v Essex County Council [2013] UKSC 66

W appealed against a decision that the respondent local authority did not owe her a non-delegable duty of care to ensure that reasonable care was taken to secure her safety during a swimming lesson. W attended a swimming lesson in school hours, taught by a swimming teacher and lifeguard. Those two individuals were employed by an independent contractor.

The Supreme Court held that there was a non-delegable duty of care for the following reasons (lead judgment of Lord Sumption): (1) W was dependent on protection by D against risk of injury, (2) antecedent relationship between parties which placed W in their custody and care, (3) W had no control over how D performed their obligation, (4) D delegated essential part of their duty, (5) third party was negligent in the very function for which D delegated the duty.

Vicarious liability (which of course is not affected by the 2013 Act):

Cox v Ministry of Justice (Rev 2) [2014] EWCA Civ 132

An employer is vicariously for the act of an employee committed in the course of the employee's employment if there is a sufficiently close connection between the wrongdoing and the employment so that it would be fair and just to hold the employers vicariously liable.

As a matter of policy, the employment status of the "employee" may be more widely drawn than is the case in employment law.

A catering manager suffered an injury caused by a prisoner. The Court of Appeal overturned a decision of the High Court that the employer was not liable for the conduct of the prisoner.

The prison argued that there was no contractual relationship between prisoner and prison, no intention to create legal relations and no mutuality of obligation.

The Court disagreed, finding that the hierarchical structure of the prison and the prisoner's duty to follow the rules of the prison made their situation akin to employment.

Mohamud v WM Morrison Supermarkets Plc [2014] EWCA Civ 116

The Court of Appeal considered whether a supermarket should be liable for the acts of its employee who left the petrol station where he worked and repeatedly punched a customer in the head.

The assault happened on the station’s premises, and he was required to interact with customers in the course of his duties.

The Court of Appeal held that the employee's duties did not involve any element of keeping public order or exercising authority over the customer. There was no close connection so as properly enable a finding of vicarious liability.