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PART 1
Health and safety law
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1(a)
Legal background
Health and safety law covers many aspects involving people at work, including the civil and criminal liabilities of employers towards their employees and other persons.
The following topics are of particular significance in any discussion of the principal features of health and safety law.
Absolute (strict) liability
Certain duties under health and safety laws are of an absolute or strict nature. These duties are qualified by the terms ‘shall’ or ‘must’, such as the absolute duty on employers under the Management of Health and Safety at Work Regulations to undertake a suitable and sufficient risk assessment. Generally, no defence is available, although when charged with an absolute offence, it may be possible to submit a plea in mitigation.
All reasonable precautions and all due diligence (‘due diligence’ defence)
Under certain regulations, such as the Electricity at Work Regulations and the Control of Substances Hazardous to Health (COSHH) Regulations, an employer charged with an offence may be able to submit the defence that ‘he took all reasonable precautions and exercised all due diligence to avoid the commission of the offence’.
To rely on this defence, the employer must establish that, on the balance of probabilities, he has taken all precautions that were reasonable and exercised all due diligence to ensure that these precautions were implemented in order to avoid such a contravention. It is unlikely that an employer could rely on this defence if:
a precautions were available which had not been taken; or
b he had not provided sufficient information, instruction and training, together with adequate supervision, to ensure that the precautions were effective.
1(a) Legal background
Defences
1(c) Principal regulations
Control of Substances Hazardous to Health Regulations 2002
The Classification, Labelling and Packaging Regulation (EC) No 1272/2008
Pressure Systems Safety Regulations 2000
Approved Codes of Practice
The HSE is empowered to issue and approve Codes of Practice which accompany Regulations, for example, HSE Publication L24 2013 – Workplace health, safety and welfare, the Approved Code of Practice (ACoP) accompanying the Workplace (Health, Safety and Welfare) Regulations 1992.
An ACoP has limited legal status. Failure to comply with the recommendations in an ACoP may be used as evidence of failure to comply with a duty under Regulations, unless it can be shown that ‘works of an equivalent nature’ (which met the requirements but in a different way) had been undertaken, proof of which rests with the defendant, on the balance of probability.
1(d) Approved Codes of Practice
Breach of statutory duty
In certain circumstances, a breach of a statutory duty, which results in injury to a person of a class which the statute was designed to protect, will give the injured person a civil cause of action. The requirements, which have to be satisfied before such a cause of action arises, are:
a that the statutory provision, properly construed, was intended to protect an ascertainable class of persons of whom the claimant was one;
b that the provision has been broken;
c that the claimant had suffered damage of a kind against which the provision was designed to give protection; and
d that the damage was caused by the breach.
The claimant must prove their case by the ordinary standard of proof in civil actions. She must show at least that, on a balance of probabilities, the breach of duty caused, or materially contributed to, her injury.
Since 2013, the ability to take action for breach of statutory duty has been significantly limited. Section 69 of the Enterprise and Regulatory Reform Act (ERRA) 2013 amended Section 47 of the Health and Safety at Work etc. Act 1974 and excludes the ability to bring a claim in civil proceedings for breach of statutory duty UNLESS a specific exemption is allowed by the regulations.
Practically, the effect of ERRA is to bar most workers from taking a civil action under breach of statutory duty for injury or loss. They will have to rely on an action of negligence in order to seek compensation.
The one exception here is the case of new and expectant mothers. The Health and Safety at Work etc. Act 1974 (Civil Liability) (Exceptions) Regulations 2013 allows an action for breach of statutory duty under the following legislation:
1 The Management of Health and Safety at Work Regulations (MHSWR) 1999 Regulations 16 and 17a, to the extent that the breach causes injury or ill-health.
2 The Employment Rights Act (ERA) 1996, Section 72(1) which prohibits people working in the compulsory maternity leave period and allows a claim if injury or ill-health should result.
1(a) Legal background
Duty of care
Negligence
Burden of proof
This term applies to both criminal cases and civil claims.
Throughout criminal law, the burden of proof of guilt that the accused person committed an offence rests with the prosecution, who must prove guilt ‘beyond a reasonable doubt’. Section 40 of the HSWA makes the task of the prosecution easier by transferring the burden of proof to the accused. It is incumbent on the accused to show either that it was not ‘p...
