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Published 15 agosto 2023
It is now almost a decade since the Enterprise and Regulatory Reform Act 2013 (The Act) came into force, causing a seismic shift in the way in which liability was determined in many employer's liability claims. Prior to the Act coming into effect, s.47(2) of the Health and Safety at Work Act 1974 (HSWA) provided that
"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."
This provision which created a situation of strict liability when a breach of regulation could be established, was swept away by s.69 of the Act. The position since has been that breach of regulations is not, in itself, actionable (unless specifically provided for) and effectively returned to employers liability cases the need for a claimant to establish negligence on the part of the defendant.
This was not, however, the end of the relevance of health and safety regulations and in Cockerill v CXK Limited and Artwise Community Partnership  EWHC 1155 (QB), the judge said "In removing the claimant’s cause of action for breach of statutory duty, the 2013 Act did not repeal the duties themselves. Those duties continue to bind employers in law. So they continue to be relevant to the question of what an employer ought reasonably to do." The relevance of the regulations has continued to be debated and in Lewin v Gray  EWHC 112 (KB), a case in which DAC Beachcroft represented the defendant, the judge went perhaps even further in downgrading the regulations saying "“…a regulatory requirement for the client of building works to require the contractor to provide a document which is itself a creature of a specific Regulation cannot, in my judgment, be equated with a duty at common law.”
The relevance of such regulations fell again to be considered recently in Rose v WNL Investments Ltd  CSOH 49 in the Court of Session (Outer House) in Scotland.
X died after falling through a roof at the defender's (D's) premises while carrying out maintenance work. Proceedings were brought against D by the widow of X and family members (the pursuers).
The pursuers maintained that X should be regarded in law as having been employed by the defender to carry out the works, claiming that his death was the result of fault and negligence by D, in particular by failing to take reasonable care for his safety by not instituting, providing and maintaining a safe system of work, a safe place of work, and safe working equipment. They referred to provisions of the Construction (Design and Management) Regulations 2015 and the Work at Height Regulations 2005 as illustrating the standards to be expected of employers in fulfilling their common law duties of care towards employees and those working on their premises and under their direction and control.
D maintained that X was not an employee, and that it was not in breach of any duty of care owed to him. D submitted that the Health and Safety at Work Act 1974 s.47, as amended by s.69 Enterprise and Regulatory Reform Act 2013, made it clear that, as a general rule, a pursuer could not rely upon a breach of a statutory duty expressed in a health and safety regulation to found a civil action, but had to prove negligence on the part of D, arguing that there was no basis for the pursuers arguing that the regulations informed the nature of the common law duty.
The action came before the court for debate of D's position that the pursuers' averments are irrelevant and lacking inessential specification.
The court remitted the case for proof (sent to trial). As to whether X was an employee or independent contractor, many of the features of his engagement did not support him being regarded as an employee but the allegations concerning the degree of control exercised by D over the work meant that the pursuers' pleadings could not be regarded as irrelevant. Further, even if the conclusion reached at proof was that X was an independent contractor, it was no longer as clear as it once might have been that in such circumstances D would owe him no duty of care, although that in effect remained the default conclusion.
As to the relevance of health and safety regulations, s.69 of the 2013 Act was directed to ensuring that a breach of statutory health and safety duties would only be actionable if the breach was itself negligent. However, in virtually all of the decided cases in which the question of the continuing role of health and safety regulations in informing the nature of common law duties of care had been raised, the parties had agreed how the question should be answered. That seemed to have resulted in a lack of searching judicial analysis of why, and thus how, the content of any regulations which might previously have engaged with the situation in question continued to have a role in assisting the court to determine the incidence and nature of a common law duty of care. Consequently, some of the Scottish cases, appeared to have departed from the course which the law required.
It was incorrect to suggest that any health and safety regulation falling within the scope of the general rule in s.69 might, directly or indirectly, be the source or origin of a common law duty of care. Recognition of the existence and content of common law duties of care remained the sole prerogative of the judiciary. That was not to say that health and safety regulations had no potential relevance in assisting the court to come to its own conclusions about the incidence and nature of a common law duty of care. However, in most cases, the utility of reference to such regulations and guidance would be extremely limited. The pursuers claimed that the regulations referred to were relevant as evidence of an established benchmark informing the standard of care owed by D to those working in its premises, and under its direction and control, in the exercise of its common law duties of reasonable care. So long as those claims were seen as propositions of fact rather than law, they were unobjectionable. Whether they would in fact be made out as valid propositions of fact remained to be seen.
It needs to be remembered that, being a Scottish case, this decision has no precedent value in England & Wales and, in any event, these views were expressed at an interlocutory and not a full trial stage.
However, the case does arguably, indicate a diminishing relevance of the health and safety regulations when assessing civil liability in the context of an employer's liability claim. In this regard it is worth bearing in mind that the workplace is a rapidly developing and changing environment with technological change creating a different set of risks and thus bringing into play a new raft of factors and circumstances which will impact on defining the nature of the duty of care owed by an employer to an employee.
Legislative and regulatory development being what it is, there is an inevitability that regulations become outdated and less relevant as they are outpaced by change. For now the regulations appear to still have relevance in informing discussion on the common law duty of care but it will be interesting to see how the court views them when Rose v WNL Investments is decided. Will the court, in Scotland at least, sound the death knell of the relevance in determining civil liability of health and safety regulations?
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