REAL QUESTIONS?

PI_John_Morris_Collins By John M Collins

1. In his preface to the latest Ninth Edition of Redgrave’s Health and Safety, just published, Jonathan Clarke asks certain questions and answers them with a non-answer “time will tell”.  I do not accept that these are real questions, because it seems to me the answers are so obvious, that they hardly need to have been asked.

2. The first questions relate to the fact that there is as yet no case law as to what relevance is to be accorded to breaches of statutory duty when the breach itself is not actionable.  This is of course because of the (in my view) retrograde provision of s.69 of the Enterprise and Regulatory Reform Act 2013 which abolished the rights of action that those injured at work had based upon the employer’s breach of health and safety regulations.  Mr Clarke asks “Does the very existence of the statutory duty inform what the common law duty of reasonable care requires? Or is the existence of the duty and the fact of the breach to be completely ignored?”

3. In my opinion, there really is only one possible answer to these questions.  The regulations which have been laid down in particular in the great battalion of regulations in 1989 (mainly now reproduced in subsequent regulations over the past 27 years) were introduced for the protection of employees.  They carried with them criminal sanctions.  But they laid down the standards to which employers had to adhere.  There is no provision in the 2013 Act or indeed any other legislation which prevents an injured employee from saying against his employer “these regulations lay down what you ought to have done and you have not done it”.  Of course, the employer might answer that the point which was being taken was an entirely technical point and one which really did not lay down a standard care for the employer.  But that apart, I cannot conceive of any reasonable Court saying that the employee cannot say ____ against his employer that the employer had a duty of care and that duty included adhering to the standards laid down by Parliament.  If that is so, there cannot be any question but that the regulations are still highly relevant to any allegation of negligence to an employer.  Whilst there may not be any reported cases, my understanding is that that is how the Courts are interpreting the law.

4. I appreciate that it might be argued that the legal position has been changed by the recent decision of the Supreme Court in Campbell v Gordon [2016] PIQR P15.  That was the case of an employee who was grievously injured by an electric circular saw in the course of his employment.  His employers had failed to cover themselves by insurance in respect of that particular type of injury, contrary to their obligations under s.1 of the Employer’s Liability (Compulsory) Insurance Act 1969.  The Company went into liquidation and the Claimant sought to hold the Company’s principal director, Mr Gordon, liable for the failure by the Company in carrying out its statutory duty.  By a majority of three to two, of the Supreme Court held that his claim failed because the particular Act was clearly so expressed as to impose only a criminal liability upon the individual directors.  I find the arguments of the majority of the Supreme Court unconvincing and those of the minority Lord Toulson and in particular Lady Hale compelling that indeed in all the circumstances the decision is not one which gives fair effect to the clear wording of the Act.  But neither the majority nor the minority of the Supreme Court in that case did other than approve the law as initially laid down in Groves v Lord Wimborne [1898] 2QB402, which was to the effect that the legislation which provides for health and safety of employees is legislation which is intended for their protection.  Indeed, although certain breaches of the Health and Safety at Work Act 1974 did not give rise to civil liability, they were customarily relied on as guidance as to what was the proper standard of care.

5. In those circumstances, it seems to me that there is a clear answer in common sense that Parliament have set the standards to which an employer is obliged to adhere and an injured employee is entitled to rely upon that as the basis upon which he can frame an allegation of negligence at common law.

6. The further question Mr Clarke asks is as a result of Brexit.  He asks whether a piece of legislation which is enacted to comply with a European Directive would now be interpreted as consistent with the Directive but only up to some Brexit cut-off date and thereafter interpreted differently?

7. It seems to me the answer must surely be that the provision is interpreted in accordance with the European Law which applied at the time when the provision was in fact enacted.  That is the law and until it is changed by Parliament, that should surely remain the law.  Why should a narrow result of a referendum make any difference to how one interprets the law, any more than the election of a different party as being the governing party at a general election?  It certainly may be said that if further directives are issued after this country has severed its links with Europe that we might well not be bound in any way to adhere to the effects of those Directives (although as I understand the position, the original legislation was largely inspired by this country and in some cases reluctantly accepted throughout Europe).  Of course, if fresh regulations are issued, they will be binding upon this country, however much they diverge from the earlier regulations or from the EU Directives.  I see no reason to think that the present system of statutory provisions and the interpretations given to those provisions which have been binding upon us up to now will, in the absence of further legislation, be significantly changed.

John M Collins

Zenith Chambers

02 November 2016

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