At the heart of the regulatory framework for employer’s liability claims is section 47 of the Health and Safety at Work Act 1974 which establishes a presumption that civil liability arises for breach of any health and safety regulations made under the Act unless expressly excluded in the regulations. This is all set to change later this year thanks to the Enterprise and Regulatory Reform Act 2013 which will amend section 47 and remove the presumption of a civil cause of action arising under health and safety regulations. The effect of this is that the regulations will give rise to criminal liability but an injured worker will not be able to rely on that breach of a statutory duty to bring a civil claim for damages.
So how will employer’s liability claims work with the civil cause of action removed from the regulations?
The cause of action will now be based on negligence, with breach of the statutory health and safety regulations serving as evidence of breach of the duty of care required for negligence actions. The regulations will therefore serve as an evidentiary tool rather than giving rise to the cause of action which means pleadings are likely to be lengthier and more complicated.
The new situation the Enterprise and Regulatory Reform Act 2013 will bring does not sit comfortably with the European Directive (89/391/EEC) which gave rise to the current regulatory system in this area of law. It is clear the Directive wanted to give effect to civil liability for breaches of the regulations and to change that appears contrary to EU law.
What is even more undesirable is that the change could lead to a two-fold system of protection; workers protected by the possibly less attractive negligence action and those workers afforded the current protection but from the Directive itself via the principle of direct effect and a Francovich damages clam if their employer is an emanation of the state.
This is all starting to sound very complicated and makes employer’s liability claims look very unattractive. This is made worse by the April changes which have limited the fees recoverable for solicitors by placing claims up to £25,000 in the portal system and providing for fixed fees in fast-track employer’s liability claims. But it may just be complexity that makes these claims attractive to take on. If the claim is complex and is going to require multiple experts to determine liability and causation it may not be suitable for the fast-track on the basis of complexity and length of trial requirements.The claim will also require a consideration of the old authorities on employer negligence prior to the existence of regulatory framework we all know so well. This means the claim could be justifiably transferred to the multi-track which is not restricted with regard to recoverable costs meaning these types of claims could once again be financially viable for claimant solicitors to pursue.
There will undoubtedly be claims that will not look as attractive when the Enterprise and Regulatory Reform Act 2013 takes effect but other, more complex cases, may look more attractive because of the possible escape route they offer from the fast-track and fixed cost regime! As they say, every cloud….