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No liability for breaches of regulations- final position

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 to give rise to civil liability and had introduced clause 61 into the Enterprise and Regulatory Reform Bill to achieve this.  There had been a difference in view on this issue, until last night…

Enterprise and Regulatory Reform Bill

You will recall that 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 that it had 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.

Until last night, 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 voted last month by two votes to reject it. The Lords' opposition came to an end last night, when it voted 170-112 to accept the Commons' position, and the Bill can now be enacted in its current form, with this reform included.

Up until now, section 47 of the 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)."

The Bill will need to move forwards to Royal Assent, but the debate in this area is now over, and this change will happen. 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 later this year.

What regulations if any are going to be made retaining civil liability for breach of them? The Lords' debate yesterday 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. Insureds will 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, Partner on 0161 604 1551 or email simon.denyer@dwf.co.uk

By Simon Denyer

This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

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