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Government Amendment Removes Civil Liability for Breaches of EL Regs ... or does it?

The most eagle-eyed observers of Parliamentary process might have spotted a very recent Government amendment to the Enterprise and Regulatory Reform Bill (which is presently passing throught its Committee stages in the Commons).

 

If the amendment survives the legislative process it might have a very significant impact on all EL claims – apparently seeking to remove entirely civil liability for breach of health and safety legislation made under the Health & Safety at Work Act 1974. If this is the Government's ambition it might be thought to return Employer’s Liability law to the status it had prior to the decision in Groves v Lord Wimborne [1898] 2 QB 402. The Commons debate on the amendment suggests that the Government intends to restrict all future workplace injury claims to actions in common law negligence only. Statutory Health and Safety regulation would retain relevance (primarily) in the criminal law.

 

The link to the amendment and the debate (such as it was) is:

 

http://www.publications.parliament.uk/pa/cm201213/cmhansrd/cm121016/debtext/121016-0002.htm#12101642000003

 

I suppose it is a measure of the level of Parliamentary debate and the quality of today’s legislators that this went through with only the most limited scrutiny and there has been no media coverage of this proposal either.

 

It remains to be seen what the outcome of this process might be: the removal of strict (civil) liability (of the Stark v PO kind) only or something more  fundamental (as the Government's ambition would seem to indicate). Whether the judiciary will "play ball" is another issue altogether.

Comments (1) -

  • aspencer

    10/22/2012 2:03:29 PM |

    The Government's stated aim is to remove civil strict liability. According to the Regulatory Impact Assessment:

    "The policy objective is to address the unfairness which results when an employer, due to a strict liability duty, is found liable to pay damages to an employee despite having taken all reasonable steps to protect them. The aim is to redress the balance whilst ensuring employees continue to have the opportunity to claim for damages where an employer can be shown to be at fault."

    The genesis for this reform was Prof. Lofstedt's independent review into Health and Safety. Prof. Lofstedt commented that:-

    "In general there is no case for radically altering current health and safety legislation".

    His recommendation for civil liability was that:-

    "regulatory provisions which impose strict liability should be reviewed by June 2013 and either qualified with ‘reasonably practicable’ where strict liability is not absolutely necessary or amended to prevent civil liability from attaching to a breach of those provisions."

    Prof Lofstedt noted that the concept of "reasonable practicability" was widely supported. He also entertained the possibility that some of the strict liability regulations might be necessary.

    The Regulatory Impact Assessment says the Government considered 2 options: targeting strict liability duties separately and qualifying them with "reasonable practicability"; and secondly preventing civil liability from attaching to all duties under health and safety regulations by amending section 47 HSWA.

    Apparently Option 2 is preferred because it's "simpler". It's certainly that...

    A case of sledgehammers and nuts??

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