24 September 2012
Removal of Strict Liability The Health and Safety at Work etc Act 1974 (HSWA) is underpinned by the principle of ‘reasonable practicability’ but many health and safety regulations impose a duty of strict liability.
In such cases this means that an employer can be held liable to pay damages to an injured employee despite having taken all reasonable steps to protect them.
Following the Lofstedt report, the Government looked at ways to redress the balance by removing automatic civil liability from breaches of strict liability provisions whilst seeking to maintain the right of employees to claim for damages where an employer can be shown to be at fault.
New legislation, the Enterprise and Regulatory Reform Bill, is presently making its way through parliament. Proposals are included to amend the existing wording of Section 47 of the HSWA 1974 to reverse the thrust of the act under which a breach of a statutory provision is actionable except where regulations state otherwise.
The new provision declares that a breach of duty imposed by statutory instrument shall not be actionable except to the extent that the regulations provide. Powers are also included to outline defences for breach of duty.
The well known case of Stark v Post Office was referred to in the Lofstedt Report as an illustration of the type of decision that was perceived to be unfair where an employer could be found liable for defective equipment, even where the defect could not have been detected in advance. Parliamentary Under-Secretary of State for Skills Matthew Hancock said: “The new clause is designed to address... unfair consequences of the existing health and safety system”.
Whilst there was substantial opposition during the debate, the proposed amendment to HSWA 1974 will now progress to the next stage of the parliamentary process by proceeding to the Supreme Court for consideration and it looks likely to become an Act of Parliament in due course. The proposed changes in respect of strict liability will have no effect upon criminal proceedings arising from health and safety legislation.
However, it is of note that many of the strict liability provisions contained within existing health and safety legislation flow directly from European legislation and the scope for amendment is limited by the UK’s requirement to implement EU law. It therefore remains to be seen what the full impact of the proposed legislation will be bearing in mind EU involvement.