Accidents at Work - Establishing Liability

Hello and welcome to this Webinar on accidents at work in 2018. My name is Nicky Carter on Hopefully this webinar will help focus us on the best arguments, the best tactics needed to succeed when acting for clients who have had accidents in the workplace. What we know, of course, is that the enterprise and regulator react changed everything in relation to from the Lord in relation to accidents at work on, we need to now work out. How can we spot cases with strong prospects of success on what arguments actually going to be most effective? I wanted to take a look at the enterprising regulator. React itself. Where are we now? Post the making of that mortal cracked time appearance, etcetera. Also the regulatory regime we knew and loved in terms of the six pack regulations passed under the health and Safety workout Are they still relevant? Does he still matter? What do we need to know about them now? What remains of those statutory duties? If anything, what do we need to know about what statutory protection we can rely upon in accidents at work? What about the allegations we could make how we bring together all the allegations that we might be able to make. How does that work on? What about the common law? If were thrown back on the common law in the accidents of work Arena? What are those arguments and what does that really mean? People who've had accidents in the workplace, I'm sure all of us heartily tired of this reference. But the European dimension? What might Brexit main for this position? Because I think the argument may well be that things will be very different with effect from out of the leaving of Europe That happens in March of next year. The effect really off the Enterprise and Regulatory Act is pretty important to identify on. What we know is that from accidents from the first from it, including the 1st October 2013 employers will no longer be liable in the civil courts for criminal offenses for breaching such regulations. So, you know, maybe that employers prosecuted by the Health and Safety Executive a za result of a breach off one off the regulations. Remember the six pack Rex always had civil and criminal liability under them. There may be a prosecution, but the argument will be that the claimant will actually be unable in their civil proceedings. Teoh rely, if you like on that, on that prosecution to establish civil liability directly are instead all cases, rather than being able to prove up to rely on the breach of the criminal law to prove their case. Injured workers will also have to do the extra job off, proving that their employer was negligent on that. The regulations were breached negligently. So from the first of October 2013 workers could be injured through no fault of their own due to an employer's breach of the criminal law. But that worker or family of that worker in the case of a fatal accident will be prevented from relying upon that breach of statutory duty to establish liability Clearly in a civil clients, is it pretty seismic change? We need to discuss the European dimension because the EU Workplace Health and Safety Directive and I've given you the directive number. There is the European your enduring Union directive that sets out the general principles for the protection of workers on their occupational safety and health. Um, the European Union director sets out those principles. It was adopted in June 1989 on, We have to transpose into owl or all member states did by December 1992. We did that by last suing. If you like the health and safety or work act in, ask a 1.1, it states. The object of the directive is to introduce measures to encourage improvements in the safety and health of workers at work. Important to note, the word improvements are think also important point to note the words workers and work. Remember that employment formal employment has never been unnecessary starter, if you like for the relevance of the regulations passed under the EU directive, Article 1.3 goes on to say the directive will be without prejudice to existing or future national community provisions, which are more favorable to protection off the safety and health of workers outwork. In other words, if there are pre existing standards higher than the Europe Peon directive requires, they can't be reduced. Stripped liability, you would argue in the United Kingdom has nothing to do with Europe. You could argue that it's fact our law put together pretty good reasons over mawr than a century. We have to address the so called Brexit effect. Ah, there's so much to say about this. We could have a weapon on it all of itself. But let's just try and identify all. We think the issues might be a change in how the courts interpret legislation by the loss of the Ma releasing duty. So if the ma releasing duty, if you like, disappears on leaving your eye the obligation if you like. Under the my releasing and Commercial International Cook case from 1992 the court no longer than required to interpret UK legislation in line with you direct, it's no longer obliged to do so. Then, okay, where does that leave us? Our continual improvement of health and safety? It's a requirement of the directive. Framework Directive presumably goes on the direct effect off health and safety provisions really, really important. After Section 69 of the Enterprise and Regulators format, 2013 started to bite i e. The possibility that our workers, who were employed by emanations of the state public bodies after the enterprise and regulate react, could rely on provisions off the EU directive as applying directly to their employers. I cut out the middleman. No need to worry about six pack regulations that will be lost. Do we know what's going to happen? We absolutely don't. We know that that obligation on domestic course to interpret domestic law so it achieves a Sfar as possible. The intended effect of you law will probably be lost. Consequently, cases that might have been successful in the past will no longer base. Oh, well, look a little bit. Just a short while a case called Kennedy and Cordiant services that went to the Supreme Court toe look at how the underlying you directed can radically alter outcomes in cases where the six Pack regulations perhaps don't do the job. Well, well, look at that. I let in fact, let's look at it now Let's look at Kennedy and Korea. Three European reference. If you like on European references, let's say in Kennedy and Korea are so important you may remember climate work for an employer. Home carer, winter in Scotland, very severe winter cold conditions and snow and freezing. She had to carry out a home visit to an elderly patient. She slipped and fell on the icy conditions she brought claim under her employers under the management of health and safety work. Rex, 99 on the PPE personal protective equipment, ranks 1992 all its journey up to the Supreme Court. The case was successful, reversed on appeal on the arguments really were Where do the regulations apply? Do they apply only where the risk was caused by the nature of the task to get given book to the employee? Or do they arise while that employees traveling or on route to those duties very narrow interpretation of the regulations in the Supreme Court? The court paid attention to the underlying directives and the provision in those directives. The directives that aided interpretation off the PPE personal protective equipment at work Rex on, you know, noting in particular the regulations do not divine and a quickly which is the word used in the Rex. But it can be inferred from the EU legislation framework directives that employers will have a duty to ensure the safety and health of workers on that I risk will not be adequately controlled unless injury is highly unlikely. So we got in this case the absolute impact on the marr leasing principle. The core looking at the directive to interpret the regulations as it's shown on the slide, there was no risk assessment by the employees to cover snow and ice. No provision of personal protective equipment. No gardens as from the employer as to what suitable footwear might be. The employer provided no attachments for footwear, which, if provided, would have been warned. Andi, you'll note it. But probably remember from the judgment there was reference to a product called Yak Trax are very cheap and inexpensive plastic attachment to the claimant shoes That would have meant that the extra almost certainly would have been avoided. On that she was given inadequate training. That case is hugely important because the core using the EU directive to try and interpret the regulations as best it can and nearly always say, nearly always will pick up where, not always in a moment, nearly always the the directive setting a highest standard than the regulations that way. In fact, past, I want to look at number ways that claimants might style their allegations. What allegations might be made posts the enterprise regulator except post October 2013 on the first issue really is to argue still, that the regulations are important are key because what they do is step that set to the appropriate common law standard if you like. And indeed vicap younger on behalf. The government in the House of Lords when the act was being introduced, said the following things the co defying framework of requirements, responsibilities and duties placed on employers to protect their employees from home are unchanged on will remain relevant as evidence off the standards expected of employers in future civil claims for negligence. So okay, we can't base a claim on breach of regulations anymore, but we're still going to be referring extensively to the regulations and the wording in the regulations, because that is the standard that employers will be held to. That's the standard. The court will apply no longer rely on them directly but setting the standards appropriate. Secondly, what about the fact that the regulations been breached as evidence off the employer's negligence so again could do no better than a quote from conservative peer Lord Fox, who said at the point the bill was introduced? Ah, break your record Regulation will be regarded a strong prime facia evidence of negligence. Judges will need some persuasion. That departure from specific on well targeted regulation does not give rise to a claim in negligence. So the idea will be that, yes, the claimant will usually need to prove the defendant failed to take all steps reasonably practicable to comply with the regulation. But the fact that the regulations been breached will be evidence off the defendant's negligence. The employer's negligence. Okay, let's look thirdly, then, at the argument that perhaps a breach of regulation will in fact shift if you like the burden of proof, turn it round. Put the burden of proof on the defendant where a regulation has been breached. You know, I'd argue that something similar to the approach seen in supermarkets slip cases following cases like Ward and Tesco stores, where the spill of yoga, cause of which was unknown. Waas, the Court of Appeal said something that meant that the court could reverse the boat in approved stating the floor was Lawton LJ. The floor of this supermarket was under the management of the defendants and their servants. The accident was such as in the ordinary course of things does not happen if the floor's kept clean and spillages are dealt with as soon as they occur. If an accident does happen because the floors covered with spillage some explanation should be forthcoming from the defendants to show the accident did not arise. Wanted care on their part. In the absence of an explanation, the judge may give judgment for the plaintiff at the time. Is that going to be the argument that line of reasoning? Will it be similar in relation to accidents at work? No. Make the analogy with our TA situations where you've got really shunts. Where they're three idea is that the burden of proof in those circumstances is shifted to the defendant. If a driver behaves in that way, the assumption is that doesn't happen without negligence. Where's the explanation? Looking for an explanation to the defendant? We've touched on this next tactic, if you like a little earlier on the head of the emanations of the state. But my point, really is that where the claimants employed by a public body, an emanation of the state, we know that public bodies defendants are subject directly to the EU directive. We know that because the statutory protection being able to bring claim against their employers for employees of publics of public sector workers. If you like means effectively that you can rely on the law you law directly so that the employer will be directly subject to you Law. Now, in the light of section 69 of the Enterprise and Regulator informer, that becomes pretty key. Really, any employer who is an emanation of the state is gonna find themselves held to account on the wording off the directive. There's no doubt about it. That provision does create a two tier system off some kind. You know, public sector employers are going to be held to account to a much higher standard arguably, than private employers draw the old. Our result in the light of the government's intentions in passing the act. Let's take a look at the argument that maybe other on older statutes might be the place to go to make your allegations in future. Now the enterprising regulator reactors in place. Acts like the employer Liability Defective equipment, at 1969 is perhaps the best example off strict liability for an employer held liable for defects and equipment for which he has not been a fault. I'm so an employee suffered injury in the course of work, doing what they're required to do injured by a defect in a piece of equipment is entitled to compensation from the employer on the argument in these cases, pretty much is that, you know, once you establish there is a fault in the piece equipment. The fact that that fault doesn't like the employers door is just not relevant. It doesn't matter on we know that Section 11 of the act makes an employer liable if an employee suffers person injury in the course of its employment, in consequence of a defect in equipment provided by the employer on the defect is attributable, wholly or partly, to the fall off 1/3 party, whether you can identify that third party or not. So it's interesting. I think, that that provision which we haven't used for 2030 years, we haven't needed to cause the regulations did. The job suddenly starts to look on awful lot mawr. Interesting. Let's also take a look on the defective premises act again. A lot of new act back to the seventies, but important because the same provisions apply. We have quite the same provision, but provisions apply that take the duty upper level Section four of the Defective Premises Act says where premises a. Let under a tenancy, which puts the landlord on the obligation for maintenance or repair of the property. If you can establish that there is in that property a defect known in the actors, the relevant defect, then the duty owed by the landlord is toe all persons who might reasonably be expected to be infected by defects in the premises. On that duty is to take such care as is reasonable in all the circumstances, to see such persons of reasonably safe from personal injury or from damage to their property caused by a relevant defect. Now that duty, I would argue, is somewhat higher than the basic duty under the Occupiers Liability Act on. We'll see that actually, in an interesting case long before the enterprise and regulator rack, but where a claimant, for reasons we'll explain in a moment, was not able to rely on the six pack of you like the regulator regime on DSO decided to rely on the defective Premises Act provisions on the result that that claim it was successful in obtaining Let's take a look at the claimant who found himself needing to rely on the defective premises act rather than relying on some off the six Pack regulations cases Hanon and Hillingdon homes. It's a huge interest, actually now back in 2012. But it's very interesting because the claimant was unable to rely on any of the six pack regulations in relation to the accident. He had the short version of why that WAAS was that he was actually employed by his still grabs an employer. I'm working on the premises owned by Hillingdon Homes Limited, a small companies set up by the council. Now the reason that he was unable to rely on any of the regulations when he has an accident in premises owned by London homes is that those premises were effectively domestic premises. It was a house. Now, domestic premises, as you know, are excluded from the definition off a workplace under the workplace. Rex 1992. So Mr Hannan, when he's injured, falling from an open staircase, a tenant of the property in years past had removed the banisters. If you like from the staircase is just open stairwell. He's trying to fix the boiler, something goes wrong is a bit of a loud noise. Any rushes down the stairs and falls down the side of the staircase. His argument waas on it in his, claiming it's Hillingdon Holmes, who course was the obvious defendant, that he could rely on the Defective Premises Act. And he argued that as landlord of the property under the 1972 act, the local authority had duties to him under the Defective Premises Act and that the missing banisters, if you like, was a section for defect. He was correct about that and successful in his claim. I would argue that the duty that that act creates, if you like, is a nisi one on a great one than the basic duty. Under the Occupiers Liability Act, he was able to point to a specific defect, unable to argue that it was the defect that caused his injuries. Let's look at the next tactic, if you like, the claimants will be considering and that's the common law duties. Now the common more duties and we could rehearse these forever. But interestingly, I think you look at that list on your slide. What we know is that those duties are exactly the duties. Safe place of work, safe system of work insurance followed safe planting equipment, competent staff but clunky but precarious liability. Those duties Airil picked up in the regulatory raising their you know, if you like safe place of works picked up in workplace regs. Safe system of work, you could argues. Picked up in the management regs. Safe planting equipment, personal protective equipment, regs, provisioning, use of work equipment. Rex. So they're all reflected in the regulatory regime. There's no doubt, then, that you know those duties are greater than the common law duties. For example, there on Occupy would ode to his visitor on, We know from long ago cases like Wilson inquired Cole of the courts of it expressly said those duties are non delicate ble that personal to the employer. You can't delegate them to anybody else if you owe those duties to your employees. All those who work for you know, dilution of the duty for smaller, cash strapped employees. Employers. Rather, however, larger organizations you could argue, might have greater duties expected of them. There are four factors, really. I think in negligence were thinking about the common law duty. How likely is an injury. What's the potential seriousness of the outcome? Proportionality. Let's make some comparison between those two things on. Let's look at the size of the employer, so we know that those things are important. How likely is an injury? This is a balance, really, because the frequency foreseeability of the event happening may not need to be very great if the consequences all very, very serious if they do occur. What about the most serious risk of all the risk to life itself, balancing that risk with the seriousness of the outcome means and employers required? If you like Teoh balance, what might happen on what might the employer do to reduce the risk of that happening? So the key really is gross disproportion isn't a reasonable practical. Every Cal ity requires the precaution to be taken unless time, effort and expense of taking it in relation to the risk averted is grossly disproportionate. So what we see is that the employers is effectively in their risk assessment. Comparing those two issues I'm size of employees. Does size matter? Well, not really. Limited resources don't give rise to a lower standard of care. If an employer doesn't have the resources to undertake, take its activity safely, then it shouldn't undertake them. Get out of business. However, we have seen in cases like Baker Quantum Clothing back in 2000 and 11 the court willing to impose, let's say, highest standards on employers who are bigger players in the industry. So it may be that higher standards are applied to bigger players in terms of the duties. We know that under the regulations effectively, there were two kinds. The absolute duty. Strict liability. Some pundits court used to call it where the regulation is couched in absolute terms, no consideration of cost is permitted, and the regulations are very clear about that. Good examples. Absolute duty will be the wreck 12 1 in the workplace. Rex 1992 which are, you know, it requires an employer to ensure that the workplace is suitable on Darius. Cases have talked about what that really means in practice, in terms of, you know, what's a suitable workplace, what's suitable floor. So it's an absolute duty provisional use of work equipment. Rig five has also imposed the same or used to impose the same absolute duty. So, in other words, that the piece of equipment meted out given to the employees should be inefficient. State efficient working order in good repair if it's no absolute liability, could do no better than trapped the case off stock on the post office. Perfect example of that absolute duty in action. Give somebody an employee there. Post office bike because it was, in this case piece of equipment. It's defective in some way. You is the employer know nothing off employees injured. As a result, it doesn't matter that you had no knowledge about it. Absolute duty. That's the big loss from the enterprise and regulate react that's no longer true. Other regulations, of course, were reasonably practicable. And again, the best test of example of that will be wrecked. 12 3 Off the workplace Regulations 1992 The obligation that so far as is reasonably practicable, every floor in the work place shall be free from substance, which may cause a person to slip on again. In those circumstances, if somebody did slip, the defendant needs to be able to troll out the defense of reasonable plaque practicality and use evidence about reasonably practical on. You know, just the example, really, how hard that can be to do. Remember, in this case, the employer is gonna have the burden off establishing that there was nothing they could reasonably impracticable e have done about that. So it's extremely difficult duty, even the reasonably practicable duty. We know that Section 47 off the health and safety at work Out doesn't give the right to bring a civil claim. Certainly used to enable workers to bring claims under the act on the basis that they could argue that breach of the regulation was relevant toe liability and would establish liability for them. What we know is that the regulations, if you like a much broader then the health and safety at work act itself we've already identified, I think, the phrase workers of working consistently used in the directive consistently used in the regulations. Whereas the Health and Safety at Work Act, the 1974 act talks about employees and it talks about in the course of employment, we should remember that the test here is still workers of working on no employers on employees. Those of you deal with the portal will be so familiar with having to establish whether there's employment or not to decide whether it's an e l or appeal claim, but for liability. Employment status is not as important on the regulation. Have always made that clear. I'm interestingly, you know, his negligence on breach of regulations. The same thing again on older case can help us here. Post the enterprise and regulator react Reynolds and struck Parker in this particular case again, the employee Iwas limited in relying on a breach off the regulatory regime, even though in 2011 those were available to him. The argument walls do The regulations apply when an employee's taking part in a charitable event, if you like sort of extracurricular our stuff at work rather than the duties he was engaged to carry out work, the court decided the regulations just didn't apply. In those circumstances, however, what they were willing to do was to say, Well, actually, although those regulations don't apply, they're not available to the Cayman. But we're going to look at the common law duty on we're going to find for the claimant on the basis that the employer failed to carry out a sufficient and suitable risk assessment on on this particular activity, which is in fact, a mounted by race. Now it's so interesting because suitable and sufficient risk assessment is exactly the phrase word for word actually used in the management. Rex 1999. So the court was willing to apply to the negligence issue the standards set out in the regulations. Just what we talked about at the beginning. By the same token again, lessons to be learned from Hide and Steeplechase, Our course repeal case from 2013 on this particular case, the claimant you might remember jockey who came off his horse and sustained injuries when he careered into ah post a concrete post on the rail running around the outside of the track, arguing it was part of his work equipment, arguing that the work provisioning use of work equipment wreck four. That the employers should provide suitable work equipment was the appropriate regulation. To rely upon phrase used in wrecked four off poorer regulations is a reasonable foreseeability. Was the employer required reasonably foreseeably? Two of I anticipated this event before they were likely to be. I'm liable How interesting the court decided. The concept of reasonable foresight was introduced into the regulations but was absent from the directives on that that raised the question. Had the regulations correctly implemented the direct teams, we're back to the Marley sing principle here, the Court of Appeal concluded. The only way to read those regulations was to read them as if they were in line with EU directive. And in doing that, the court decided the only way the employer could remove themselves from any liability was to show that the circumstances of the accident, why the UN foreseeable or exceptional, then burden on them to show un foreseeable or exceptional they couldn't do so on. The claimants succeeded effectively. What we've got is a clear reversal of the burden of proof. In that case, lastly, and most recently, most importantly, I think we've got a case school Cockrel from just a few months ago on the case in this particular scenario occurred when UN employees fell down the step on argued that brought claim, actually against her employer, all the occupier of the premises, arguing that the step should have been identified her and a clear away than it actually was. It was marked with hazard to take. The case proceeded on the agreed basis. There was no longer a self standing cause of action available to the claimant for breach off the century duties of employers under the health and safety regulations. Why, Because you couldn't really make this up. The claims accident actually happened on the 1st October 2013. She no longer had the benefit overlying on the regulatory regime the course. Few waas that the employers, due to a common law, was to take reasonable steps to provide a reasonably safe place of work on a system of work to protect employees as far as reasonably practicable from foreseeable harm. Now, quite clearly, the court decided that the act, the enterprising regulator react, continued to bind employers on that. The wording off the duties that employers had to their employees the common law duties was still relevant to the facts. In this case, two issues really arose on, by the way, this was a former Victorian primary school. Many single doorsteps changes of level one room to another, most of which were marked with black, has a yellow warning tape, so the step was visible. The court decided that on balance of probabilities, that step was a visible one, with all the marking of the tape. Two issues. The open door was a breach of the duty of care owed her and caused her accident, she argued. The court said no part the duty of care by either defendant, the occupier or the employer to take reasonable steps to keep us safe from falling over the doorstep that the door should be kept. Sharp fact that the doors open didn't change things, she argued. More should be done to one of the steps existence. No need to warn of the obvious, said the court. We've seen that argument so many times in occupiers liability scenarios. This was an obvious defect. She was unsuccessful. Such an interesting thought to decide. Would she have been successful? Had the regulations kicked in on Had she been able to rely on the regulatory regime on the argument would have been in those circumstances are perhaps, under the workplace regulations, maybe Regulation 12 1 that the floor of the workplace was just not suitable? Would the decision have been different? It's an interesting thought. The future well, what can we expect? Less liability of missions may be more creative. Pleadings from claimants, negligence, older acts as we talked about the fact that there may be a double standard now. We may have public body employers different subject to the directive rather than the Rex on thinking of exemptions from the act. Pregnant women young people in the workplace are exempt from the enterprise regulator. React quite how we're going to argue about the reversal of the burden of proof and how that works on the evidence is unclear. We need to look watch cases as they come up because it's still early doors to try and work out how the courts will do with this massive change, hopefully more to report in the in the near future. That's the end of our webinar do have. It's been helpful on thank you very much for listening.