A return to Victorian era health and safety law

Work health & safety

Why the Enterprise and Regulatory Reform Act means a return to Victorian-era health and safety law across Scotland and the UK

On Tuesday 1st October 2013, provisions in the Enterprise and Regulatory Reform Act come into force across the UK. Section 69 of the Act amends section 47 of the Health and Safety at Work Act 1974, which attaches civil liability to breaches of health and safety regulations.

Section 69 removes that protection and regresses health and safety law in the United Kingdom to the point that those engaged in building the new Queensferry Crossing, the third bridge over the River Forth between Edinburgh and Fife in central Scotland, will, from Tuesday 1stOctober, will be doing so with no greater protection in civil law than those who built the original Forth Rail Bridge, completed in December 1889, at a cost of 98 lives.

Picture of Forth Rail Bridge, completed in 1889 at the cost of 98 lives

This change will have adverse and unjust consequences, both for individuals seeking to access justice and compensation for injury suffered as a result of an accident at work that was not their fault, and health and safety standards in the UK.

The removal of employers’ civil liability will mean victims of workplace accidents will require to establish common law negligence on the part of their employer, or other party responsible for wrong-doing, if they are to recover damages.

Claims which are currently fairly straightforward will become more complex. An example could be an accident involving a defective piece of machinery. Prior to this legislative change, the employer was responsible for ensuring their staff had a safe environment in which to operate and would have been liable for the defective equipment.  Now, the case will likely result in complex and prolonged arguments around the employers’ level of knowledge of the state of the equipment and what would or would not have been reasonable action for them to take relative to this.

Assuming such claims continue to be brought – and this new provision will almost certainly discourage some of those injured from doing so – many of them will take longer and cost considerably more to resolve.

Beyond individual claims, the legislation could adversely affect workplace health and safety standards. It is widely assumed, but incorrect, that regulations in this area primarily exist for the benefit of those seeking to claim compensation. This is not the case, as the words of Lord Rodger in the House of Lords case of Spencer-Franks v Kellogg Brown and Root Ltd &Ors illustrate:

“Civil courts tend to come across health and safety regulations when someone has been injured and is suing by virtue of section 47 of the 1974 act …it is important to remember that civil liability for injuries is essentially a secondary feature. Their main purpose is not to give those who have been injured a straightforward route to damages, but to prevent them being injured in the first place.”

That robust regulation raises standards and prevents incidents is borne out by key Health and Safety Executive statistics.  In 1991/92 there were 368 fatal accidents in UK workplaces. By 2011/12 that figure had fallen to 173. The number of major injuries at work has fallen by 20 per cent since the mid-1990s, while the number of injuries which led to a three-or-more-day absence from work have fallen by more than 30 per cent.

Of further relevance is the declining number of workplace criminal prosecutions and convictions across the UK. This is particularly so in Scotland where the number of offences prosecuted fell from 122 in 2007-08 to 41 in 2011-12, and the number of convictions fell from 66 to 32 over the same period.  The criminal justice system deals with a very small number of workplace health and safety incidents. It is the ability to bring civil claims, and consequent demands upon employers by their insurers, which has been the principal driver in improving workplace health and safety practices.

This legislative change is a regressive one, which will result in the State requiring to look after those injured workers who ought to be relying on their employers to meet the highest health and safety standards. Instead, it will benefit only insurance companies representing employers and those unscrupulous enough to fail to adhere to their duty to keep those employed by them safe.

About Digby Brown Solicitors 
Digby Brown Solicitors represent thousands of individuals in workplace accident claims in Scotland every year.  The firm has worked for many years to improve workplace health and safety standards.