Parliament's intended aim for the Enterprise and Regulatory Reform Act upheld by High Court

Published 16 July 2018

1 October 2013 saw s.69 of the Enterprise and Regulatory Reform Act 2013 implemented, removing the automatic entitlement of claimants to found a claim for personal injuries on a breach of statutory duty. The recent judgment of the High Court, in Cockerill v CXK Limited and Artwise Community Partnership saw the High Court consider the intention of Parliament in passing the legislation, this question being of relevance in the dismissal of the claimant's claim.

The claimant suffered injuries when, on 1 October 2013, she fell down a step at the premises of Artwise, which she was attending in the course of her duties with CXK. The step, 7 inches in height, was adjacent to a door on which there was a sign which warned of its presence. The door was propped open at the time of the claimant's accident, preventing the claimant from seeing the sign, but hazard tape was attached to the step and the claimant had seen another sign warning of a step.  The claimant went on to develop a chronic pain syndrome.

The claim against Artwise, as occupier, failed. The judge deciding that there was no duty to keep the door closed; whilst the claimant could not see the sign, as the door was open she could see the step. The fact that more hazard tape had been added to the step after the accident did not show that the occupier had been in breach of duty at the time of the accident.

Insofar as the claimant's employer was concerned, the marking of the (clearly visible) step with hazard tape was a reasonable response to its existence and the risk of falls. The risk assessment performed by the claimant's employer was sufficient and the employer was not in breach of its duties to the claimant.

The claimant sought to argue that as employers can and should insure against employers liability accidents the claimant should be compensated by the insurance purchased. In relation to this argument, the judge confirmed that, even if the argument had had any weight before 1 October 2013, it could not be sustained after the implementation of s.69 of the Enterprise and Regulatory Reform Act 2013.  She stated that:

In relieving employers of no-fault liability to claimants in the field of health and safety, the Act no doubt intended to relieve them of some of the legal burden of insuring against no-fault liability. Parliament's intention that claimants must prove that their accidents were someone else's fault before they are entitled to compensation must presumably mean just that.

Whilst not a case in which the claimant would have been certain of success had her accident occurred prior to the implementation of the Act, the comments of the judge will be of assistance to employers and their insurers in defending claims in which claimants seek to rely on breach of statutory duty as evidence of negligence.