Liability Update
Jason Burt
Partner, Plexus Law
Monday 28th April 2014
Content
• Case Law Update
• General Health & Safety Update
• HSE: Fees for Intervention
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Wilkin-Shaw v Kingsley School Bideford C.A. 2013
• Pupil drowns whilst practising to participate 10 Tors event
• Supervising teacher missed checkpoint shortly before incident
• Scout Master, unconnected with group intervened and offered assistance
Wilkin-Shaw v Kingsley School Bideford C.A. 2013
• Although supervising teacher was not specifically qualified, his experience was suitable/sufficient
• Participants appropriately instructed on how to proceed.
• Teacher’s failure to arrive at the checkpoint on time was negligent but not causative.
• The intervention of the third party was unforeseeable and broke the chain of causation.
Uren v Corporate Leisure (UK) Limited and
MoD
• Claimant was employed by MoD and was attending a “health
and fun day” at an RAF base
• MoD engaged independent contractors to supply equipment
and run the events
• Whilst participating in an “it’s a knock-out” type race he
entered a shallow pool filled with water head first, sustaining
severe spinal injuries
• Participants not provided with a any instructions on how to
negotiate the course
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Uren v Corporate Leisure (UK) Limited and
MoD(2)
An employer has a non delegable duty to undertake a suitable
and sufficient risk assessment
The Judge’s conclusion that game as played carried only a small
risk of serious injury was untenable
The contractor’s risk assessment unsuitable
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Risk v Rose Bruford College 2013
• The defendant’s Student Union held
an annual “Events Day” on the
defendant’s premises
• One activity available to the students
use was an inflatable pool filled with
water
• The claimant sustained serious neck
injuries whilst attempting to dive into
the pool
Risk v Rose Bruford College 2013(2)
• Although defendant owed the claimant
a duty of care under OLA 57, it did not
have a duty to protect him against an
injury he incurred by diving headfirst
into the pool
• Claimant had created an obvious and
serious risk which would not have
otherwise have existed
• “I think it will be extremely rare for an
occupier of land to be under a duty to
prevent people from taking risks which
are apparent in the activities they
freely choose to undertake”
Woodland v Essex County Council 2013 SC
The defendants school engaged contractors to supervise
swimming lessons during school time
A pupil attending the lesson got into difficulties and was
discovered “hanging vertically in the water”
The pupil was resuscitated but suffered serious brain injury
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Woodland v Essex County
Council (2)
The LEA had a non delegable duty of care to ensure that
reasonable care was taken to ensure the safety of pupils
The lesson supervision and lifeguarding arrangements were
negligently performed
The negligence occurred in the course of the very functions
which the school assumed an obligation to perform and
delegated to its contractors. It had to follow that if the latter
were negligent in performing those functions, the LEA was in
breach of duty
Yates v National Trust 2014
• The defendant engaged contactors to take down a diseased
tree in its parklands
• The contractors had previously undertaken various
operations for the defendants without difficulties or
problems arising
• The claimant was employed by the contractor and fell
approximately 50 feet sustaining serious spinal injuries
Yates v National Trust 2014 (2)
•
Whilst the Work at Height Regulations
imposed a duty on non employers to take
care of those working at height on their
premises, the extent of that duty was
dependent upon exercising control over
the worker
•
It was too onerous to extend that duty to
contractors’ employees or subcontractors
•
There was no obligation on the
defendant to ensure that the claimant
was covered by insurance where public
liability cover was in place
Health and Safety Update
Enterprise and Regulatory Reform Act 2013
Section 69 reverses Section 47(2) of the Health and
Safety at Work Act 1974
“
Breach of a duty imposed by statutory instrument containing (whether alone or with
some other provisions) Health and Safety Regulations shall not be actionable except
to the extent that regulation under this section so provide
Section 69 became law on the 1st October 2013
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”
Health and Safety Update
What does this mean?
• An injured person will not be able to rely on
breaches of statutory duty in a civil claim for
compensation unless there are specific statutory
exemptions enabled permitting such reliance
• Interesting contradiction – a claimant seeking
compensation for what may have been a criminal
offence on the part of the proposed defendant
cannot now rely upon the same breach of statutory
duty for the purposes of a civil claim
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Government’s rationale
•
Unfairness that an employer can be liable despite having taken all reasonable
steps to protect an employee
•
Prof Lofstedt – “Reclaiming Health & Safety for All” (Nov 2011)
I.
Inability to defend against strict liability regulations fuels perception of a
compensation culture
II.
Fear of being sued drives businesses to over comply with regulations
III. Red tape increases costs
IV. Revoke strict liability regulations only
•
The Enterprise Act goes much further than Lofstedt’s recommendations
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Health and Safety Update
How might claimants respond?
• Employers Liability (defective equipment) Act 1969 – does not confirm a civil cause
of action but invalidates any attempt to defend a negligence claim by saying that the
defect is attributable to a fault of a third party
• Alleged that breaches of health and safety regulations should be seen as evidence of
negligence on the part of the defendant
• Public Sector employees – argue that s.69 ERRA does not apply in relation to claims
brought under the regulations implemented by European Law on the basis of the
doctrine of “Direct Effect”
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HSE – Fees for intervention
• The Health and Safety (Fees Regulations) 2012
• Became effective 1st October 2012
• Permits HSE to recover its costs by charging a fee for the time and effort it spends
investigating and taking enforcement action against breaches of health and safety
laws
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HSE
Why introduced?
• Officially: FFI will encourage businesses to comply in the
first place or put matters right quickly when they don’t.
It will also discourage businesses who think they can
undercut their competitors by not complying with the
law and putting people at risk
• Unofficially: During the first six months following
introduction, HSE raised 5,766 invoices claiming
£2,673,773.00
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HSE
Expectations
• It was anticipated that during the first 12 months following
introduction, invoices raised would generate fees totalling £37M
• Expect an increase in interventions going forward
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HSE – Charges
• The FFI can only be levied in respect of a “material breach”
• Material breach – is when, in the opinion of the HSE inspector, there is or has been a
contravention of health and safety law that requires them to issue notice in writing
of that opinion to the duty holder
• The inspector will record the time he/she has taken to deal with the material breach
and thereafter multiply the same by the FFI hourly rate
• If there are multiple duty holders party to the investigations, then each will be
responsible for the time that has been incurred in relation to their element of the
investigation and charged independently
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HSE – Challenging the invoice
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•
If you disagree with the invoice because you do not believe you are in
material breach of the law or that the amount of the fee charged is
incorrect, you can raise a “Query” within 21 days of the date of the
invoice
•
If you disagree with HSE’s reply to your query, you can raise a “Dispute”
in writing within 21 days of the date of the HSE’s response
•
You will have to pay HSE’s time for handling your dispute at the FFI
hourly rate
HSE – Implications of payment
• Potential admission of criminal breach of duty which may be used against you in any
subsequent prosecution
• Evidence of negligence (by failing to comply with Health
and Safety legislation) which may be used in a civil
claim for damages
• Loss of insurance cover?
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HSE Enforcement Appetite
• In 2012, an FIA request confirmed a 400% increase in
prosecutions of directions and other senior managers pursuant
to s.37HSWA74
• In 2012, there was a 40% increase in corporate manslaughter
investigations – further significant increases expected for 2013
and thereafter
• SSI revenue expectations
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