Turning back the clock
Employer liability legislation has been amended to require proof of negligence in a civil claim based on breach of statutory duty. Does anyone gain from this?
In 1937 the Factories Act evolved to extend civil liability against employers whose workers were injured at work through a breach of the protections set down in that Act (protections which bore more than a passing resemblance to the various health and safety regulations in force today). Indeed, there has been civil liability for injuries caused by breaches of the health and safety laws since 1898 (Groves v Lord Wimborne  2 QB 402, CA). Until now workers have been entitled to compensation for injuries at work resulting from a breach of the health and safety regulations.
There is a wide range of regulations in force, covering duties including the workplace, work equipment, manual handling, display equipment, construction sites, and protective equipment, to name but a few. The process following an injury was reasonably straightforward (as far as legal matters go). Many health and safety duties were placed on employers, which created a route to compensation for injury, or lost earnings as a result of injury, and afforded employees a degree of protection that often did not involve extensive investigation into matters such as who installed a machine and when – the employer would simply be liable if it failed. Employers were therefore ultimately responsible for the welfare of their workers, and are required to hold compulsory insurance to meet such claims.
Various regulations have been phased in over the last couple of decades, carrying with them civil liability, through the Health and Safety at Work etc Act 1974, and implementing various European directives. The old Factories Acts have been replaced, and a civilised culture of reasonable health and safety at work has developed. This has helped improve standards and over the years has led to a considerable drop in the numbers of injuries and deaths in the workplace. In 1974, when the Act was introduced, there were 651 fatal injuries to employees (HSE: Historical picture - Trends in work-related injuries and ill health since the introduction of the Health and Safety at Work Act 1974); by 2012-13, on HSE’s fatal injury statistics, this figure had dropped to 148 deaths.
That protection has now been removed. For the first time since 1937, employees are exposed. To very little fanfare, the words “shall not be actionable” have been inserted into the Health and Safety at Work etc Act 1974, meaning that employees no longer benefit from the direct right to damages for injuries caused through a breach of the health and safety regulations. Claims in damages can no longer be founded solely on breaches of the regulations. There is, of course still the right to damages where the employer has been negligent. In any action now by the injured employee there must be proof of negligence by the employer. In many cases the end result may be the same, although the action itself will be vastly different. In other cases there will be no realistic chance for the injured worker to claim.
Our evolved legal process has helped to determine liability reasonably early on, and employees who could demonstrate both a breach and an injury could relatively easily recover damages. For many people, absence from work means the inability to pay rent or a mortgage, and so time off work for an injury can be catastrophic even for a relatively minor injury. The resulting financial pressures can result in stress, family problems, credit problems, worries about eviction, and so on through accidents which may often be no fault of the employee. Our legal process helped to minimise these effects.
Why should employers be liable for accidents at work? The policy considerations stem from the risk of harm to others arising from economic activity, transferring recompense onto those better financially placed, and spreading the loss through insurance and pricing (per Lord Nicholls of Birkenhead in Majrowski v Guy’s and St Thomas’ NHS Trust  UKHL 34 at para 9, referring to Professor Fleming’s Law of Torts (9th ed, 1998), 409-410). Put simply, employers benefit from the labour of their employees and profit as a result, and should be able to absorb the cost of their responsibilities.
Beyond this there is a further driver: “In addition, and importantly, imposing strict liability on employers encourages them to maintain standards of ‘good practice’ by their employees. For these reasons employers are to be held liable for wrongs committed by their employees in the course of their employment” (ibid). Employers make the decisions, are required to consider the dangers, and set out safe working practices. They select the machinery and equipment and maintain it. They provide the instruction to their employees, who often have limited input into any of these matters. It can be difficult for employees to prove that maintenance was defective, or that complaints were made or recorded, or to find out when equipment was installed, or even find out who manufactured or installed the equipment they use daily. These are all matters within the employers’ responsibility and knowledge.
The result of the change is that injured employees will have to prove that their employers were negligent. The regulations are still in place, and a breach of these may point to negligence. However in proving negligence, a much greater evidential and legal burden is shifted onto the injured employee. The employee must now prove that the employer failed to take reasonable care. They will require to prove matters which are beyond the scope of their knowledge (and firmly within their employers’ knowledge), for example about previously reported accidents, maintenance history, provision of equipment etc.
How will this be done? Employees will require to gather a wide range of documents from their employers, and perhaps employ health and safety experts to test and assess procedures and equipment. As a result all such claims will become more cumbersome, time consuming, and expensive for all those involved. This burden will inevitably result in delay which may prove catastrophic for many employees, and expense for all involved.
There will be cases where it will be impossible to prove that the employer has been negligent in occurrences of injury, or death, following accidents at work even where the accident was in no part due to any fault of the employee. All work accidents will now likely involve considerable additional legal work in proving negligence, resulting in notably increased costs for insurers for the successful claims. Contrary to the government’s stated objective of reducing red tape, the opposite is likely. This is one change in the law where there are likely to be no winners.
Barry Berlow-Jackson is a personal injury solicitor working in Glasgow