PI Brief Update

After the Revolution - Aidan Ellis, Temple Garden Chambers

23/10/13. Claimants beware. Section 69 of the Enterprise and Regulatory Reform Act 2013 came into force on 1 October 2013. As a first year law student I remember being surprised by Wade’s use of the dramatic term “revolution” to describe changes in the fundamental rules regarding parliamentary sovereignty. In the field of employers’ liability claims, however, it is not an overreaction to describe section 69 as a revolution. At a stroke, it prevents injured employees from bringing claims for breach of statutory duty against their employer. The statutory duties (and possible criminal liabilities) remain, but instead of relying on them, claimants will have to fall back on negligence.

The intention is to protect employers from claims being brought against them in circumstances where, in lay terms, they have done nothing wrong. Take the well known case of Stark v the Post Office, in which the employee’s bicycle failed causing him injury in circumstances in which no reasonable system of maintenance or inspection would have detected the fault. The Claimant succeeded under the strict provisions of the Provision and Use of Work Equipment Regulations. In negligence (and hence under the new regime) he would surely have failed.

Nevertheless, section 69 is not the end for employers’ liability claims. First, the new regime does not apply to breaches of duty which occurred prior to 1 October 2013. As a result only new claims will be affected. Second, whilst there will be a number of claims, like Stark, which could only ever have succeeded under strict liability rules, many other claims are still capable of being pursued in negligence. For instance, claims founded on failures to train, to inspect or to maintain the workplace will all continue, though they will now be framed using the language of negligence. In such cases, the fact that the employer is also in breach of a statutory duty will hardly make it easier to defend the claim, even though the breach itself is no longer actionable. Third, a range of creative arguments could be explored to assist Claimants. For instance, where the Claimant is employed by an emanation of the state (as defined in classic European Law cases such a Foster v British Gas) and the statutory duty is based on a European Directive, the Claimant may well be able to rely on the terms of the underlying EU Directive in any event. The result would then depend on whether the directive itself is construed so as to create a right to compensation. Where the employer is not an emanation of the state, the Claimant might still be able to sue the State itself for failure to properly implement the directive. It is also possible that where the employer is a public authority, a Claimant may rely on human rights arguments. This line of argument may be particularly effective in fatal accidents cases, where Article 2 of the European Convention is engaged.

The impact of section 69 is likely to be that a minority of claims which would previously have succeeded are now doomed to fail. But the majority of claims will continue, albeit in a different form and with a different emphasis. Without the comfort of clear-cut breaches of statutory duty, liability in these cases will be more difficult to assess and for a time more unpredictable. As a result, both Claimants and Defendants will need to adapt quickly to the new environment, particularly given the strict time limits applying to portal claims.

Aidan Ellis

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