Personal injury specialists have long awaited clear guidance on how the changes effected by Section 69 of the Enterprise and Regulatory Reform Act 2013 will be interpreted by the courts.
This provision amended section 47 of the Health and Safety at Work etc. Act 1974 such that breach of duties imposed by statutory instruments no longer give rise to civil liability unless the statutory instrument specifies otherwise.
This change came into force just over two years ago on 1 October 2013 and applies to accidents occurring after that date. It is of course still possible to bring proceedings in negligence and cite a breach of any regulation as evidence of that negligence and the effect of the change has therefore been somewhat unclear.
Some guidance can now be found in the Scottish case of Gilchrist v Asda (2015) Rep. L.R. 95 in which Lady Stacey accepted submissions made by Counsel for the Pursuer (Claimant) as follows:
“Counsel submitted that employers remain under a statutory duty to comply with health and safety regulations, as the duties set out in statutory instruments made prior to the 2013 Act inform and may define the scope of duties at common law. She made reference to a ministerial statement in the House of Lords in which a government spokesman stated that the Act did not undermine core health and safety standards and that employers’ statutory duties would remain relevant as evidence of standards expected of employers in civil cases. She argued that an employer who breached a regulation and was thereby committing an offence could hardly argue that he was acting reasonably. She referred to Munkman, p.668, Charlesworth and Percy, para.12–73 and Robb v Salamis (M&I) Ltd . Counsel argued that the existence of a regulation demonstrates that harm is foreseeable, under reference to Boyle v Kodak in which Lord Reid said: “Employers are bound to know their statutory duty and to take all reasonable steps to prevent their men from committing breaches” ( 1 W.L.R., p.668).”
The Pursuer was unsuccessful in her claim as Lady Stacey found, on the evidence, that her case was not made out. Nevertheless, the above passage may be useful when considering this issue in future.