Update
The Enterprise & Regulatory Reform Act 2013 has now received Royal Assent. The clause amending the H&SAWA 1974 is section 69. The BIS Dept. press release which by process of elimination suggests the section will come into force either in October 2013 or April 2014.
Background
The government has wanted to change the current position that breaches of health and safety regulations made under the Health and Safety at Work Act 1974 do give rise to civil liability, unless the Regulations themselves say otherwise, and it introduced clause 61 into the Enterprise and Regulatory Reform Bill to achieve this.
The purpose of the change was intended to discourage over-compliance with Regulations on the part of Insureds simply to avoid a finding of civil liability, and to allow those Insureds who had taken all reasonable steps to protect employees and others to avoid a finding of liability.
Final position
Until recently, there had been a difference in view between the House of Commons and the House of Lords on this issue. The government with its Commons majority had been seeking this change, though the Lords previously voted by two votes to reject it. The Lords' opposition came to an end on 23rd April, when it voted 170-112 to accept the Commons' position, and the Bill has now been enacted in its current form, with this reform included.
Up until now, section 47 Health and Safety at Work Act has said: "Breach of a duty imposed by health and safety regulations shall, so far as it causes damage, be actionable except insofar as the Regulations provide otherwise."
The new wording will read:
"Breach of 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. Breach of 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)."
When will the change be felt
To be implemented, this section of the Act now needs to be the subject of a statutory instrument introduced by the Secretary of State, which is probably some months away yet. When the statutory instrument is brought forwards, it is likely to impact on accidents occurring after a future date, or disease claims arising out of events occurring after the same date, in both cases that date probably being either October this year or April next year.
What regulation if any is going to be made retaining civil liability for breach of them?
The Lords' debate suggests that the government was planning an exemption for protection for pregnant workers, but also that they had not identified any other regulations deserving this exemption.
What this change means is that the health and safety regulations in question will remain as standards to be observed, and that if Insureds do not comply with them, they can still be prosecuted and incur a criminal liability. The Regulations can also be used as a guide to what is a reasonable standard of care under the common law duties that will still arise. Claims for damages, after implementation, will only however be able to allege negligence, and not breaches of statutory duty, though claimants are likely to attempt to obtain back door support from the regulations when the question of negligence is being considered.
The changes should though make some claims which currently have to be settled on the basis of a breach of regulation more defensible, though this is likely to be a narrow band of claim. Claims which currently have to be settled because the regulations impose strict liability are clearly ones that will be impacted by this change in the future, as in that sort of situation the strictness of the obligation will not be relevant to the extent of the duty in negligence. Insureds will though still have to be able to demonstrate that they provided employees with a safe place of work, a safe system of work, and that they were not vicariously liable through the actions of another employee. The news emerging from Parliament should however be welcomed by Insureds in reducing their red tape burden, and in knowing that they will now be able to resist at least a certain additional proportion of them.
For further information please contact Simon Denyer, Strategic Legal Development Partner on 0161 604 1551 or at simon.denyer@dwf.co.uk