EL claims after the Enterprise and Regulatory Reform Act; the recrudescence of Middle English law?

On Saturday 30th November, Charles Feeny delivered the above lecture at the Personal Injury Bar Association Northern Conference.

As a follow up, Charles has provided some additional thoughts on the lecture and how the changes are influencing the law. A copy of the lecture powerpoint is available at the bottom of the page.

My starting point in this talk was that Sections 69 of the Enterprise and Regulatory Reform Act is essentially legislation from the golf club bar reflecting the sustained antipathy in the form of anti-EU sentiment amongst the middle English.  However, the reality is as Lord Denning identified and predicted in 1974 that European law would become a part of English law and its influence would flow up our estuaries and rivers.  Further, and significantly in this context, it is not just that the law has become integrated but that the climate of industrial safety has been radically improved by a systematic and rigorous approach, in particular reflected in guidance given by the HSE.

This is not to say that Section 69 will have no effect.  The provision operates to reverse the previous presumption of civil liability under legislation and regulation made under the Health and Safety at Work Act 1974.  It must follow that if a Claimant can only prove a breach of a statutory duty of strict application, the Claimant will now fail, whereas previously the Claimant would have succeeded (albeit likely to be subject to a very significant discount for contributory negligence).

Such claims, however, will likely be rare as they were prior to Section 69.  Stark v the Post Office was apparently perceived as being representative of European over-regulation by the application of strict duty.  Clearly, if this case was re-litigated on the same facts and findings, the Claimant would fail rather than succeed as a result of the provision in Section 69.  Consideration of the facts of the case would indicate it is unlikely that in a similar case now the Claimant could not deploy arguments to succeed without having to rely upon breach of a statutory duty of a strict nature.  The facts in Stark are briefly set out in the Court of Appeal judgment, and only to the extent necessary to explore the discrete point of law.  The Judge at first instance made a finding that the defect which caused the accident could not have been discovered on rigorous examination and therefore there was no negligence.  The defect was said to be the result of either metal fatigue or manufacturing defect.  It is not clear to what extent arguments based on negligence were pursued with any vigour at first instance given the case on breach of statutory duty and the Claimant’s correct perception that the Defendants’ position was indefensible on breach of statutory duty.

It would appear that the area where those advising Claimants are considering most difficult is in relation to equipment and machinery claims.  Such claims have, in reality, substantially proceeded on the basis of strict liability within the working lifetime of all currently practising lawyers.  In fact, rather ironically, some of the old fashioned Anglo Saxon provisions which predated European regulation, such as Section 14 of the Factories Act 1961, provided for a much stricter duty than has been imposed in any context from Brussels.

To this extent, having to prove fault beyond breach of strict statutory duty represents a cultural change for Claimants’ lawyers but it should not, in the vast majority of cases, present an insurmountable challenge.

The Courts have taken an approach where, in simple terms, something has gone wrong, that there is at least an evidential onus on the Defendant to explain and justify this position.  This was exemplified in the slipping case of Ward v Tesco Stores Limited.  It is not clear how this approach can be squared with the confines of res ipsa loquitur, the Courts in this context, as in certain clinical negligence cases, disavowing the application of the maxim but in fact applying a lower threshold of proof for practical purposes.  Be that as it may, the starting point of any defective equipment or machinery must be that it is a situation which requires some justification.

Many Defendants will struggle to present the type of evidence necessary to form the background of the justification of a defect or fault, for example comprehensive and up to date maintenance and inspection records.  Whilst the absence of such documentation would not in itself prove a causative breach of duty, it would nonetheless put the Defendant very substantially on the back foot.

Further, the Employers Liability (Defective Equipment) Act 1969 has not been repealed.  It had become largely obsolete because of the Stark case but it can now be relied upon as it was characteristically prior to 1993.  It is to be noted that the definition of fault within the Act is very broad including “other act or omission which gives rise to liability in tort in England or Wales”.  It therefore seems reasonably arguable that a defect can be assessed by reference to the Consumer Protection Act 1987 which is stricter in its application than a simple allegation of negligence in manufacture.  The definition of defect relates to “the safety of the product is not such as persons generally are entitled to expect”.  If a defect in this sense is proved then a defence according to the statute must be demonstrated, and these are rigorous including a requirement that the producer or supplier must demonstrate that they could not reasonably have known of the defect in the light of scientific and technical knowledge.

Reconsidering the facts of Stark against this background, it is clear that if the ultimate finding was that there was a defect in manufacture, Mr Stark would have succeeded even without strict liability.  The alternative of metal fatigue is difficult to interpret, giving the very limited reference to it.  However, it could be reasonably argued that the metal fatigue was either foreseeable or unforeseeable.  In other words, it occurred after a certain period in use or it could occur at any time during the course of the use of the bicycle.

In the former scenario, it would be reasonable to argue that the Defendants should have had a system whereby bikes were not permitted to remain in use when they were subject to failure through metal fatigue.  In fact, there was evidence in Stark that the Post Office routinely withdrew bikes from use after 10 years, whereas the bicycle Mr Stark was using was 14 years old.  This is not explained from the Court of Appeal judgment but clearly an argument could be developed on these lines.

If, on the other hand, the defect was unforeseeable and could occur at any time, then the bicycle would be defective within the meaning of the Consumer Protection Act 1987.

The clear impression therefore is that a Claimant in the Stark type of case could succeed but might have to deploy considerably more forensic energy in the process rather than having the easy option of relying upon a strict statutory duty.

The other area in which the apparently restrictive effect of Section 69 will be substantially mitigated is in the application of breach of regulation and guidance, as evidence of negligence.  Lord Faulks in the House of Lords referred to a breach of regulation as “strong prima facie evidence in negligence” (Hansard 22 April 2013 Column 1328).

In this context, it is important to appreciate that because of the way much of the Regulation is framed, in particular in terms of reasonable practicability, that the crucial assessment is not necessarily made by reference to the Regulation but rather by reference to guidance issued by the Health and Safety Executive.  This was illustrated by the case of Mr Simpson, for whom I acted earlier this year.  Mr Simpson fell down from a ladder on a building site suffering very serious- near fatal- injuries.  His case was that the ladder was incorrectly lashed, but the Judge rejected this at trial.  However, the Judge accepted an alternative case based on the Working at Height Regulations 2005, in particular that Mr Simpson had been climbing a ladder which was constituted by a single run of 25 feet.  The Claimant’s case was that this was inappropriate and inconsistent with the guidance provided by the Health and Safety Executive in relation to the Working at Height Regulations in that single runs of ladders, as opposed to scaffolds with intermediate platforms, should only be used for occasional and short term access.  The Defendants attempted to argue by way of reference to risk assessments that they had correctly assessed the work as being occasional and short term, and the use of a ladder was justified.  The Judge’s finding was that although the use was occasional and short term in the sense that Mr Simpson was not working from the ladder but rather going up and down it a few times a day to access the roof, this could not be considered to justify the use of a ladder within the Health and Safety Executive Guidance.  Although each use was short term and arguably occasional, the ladder was being used over a prolonged period and the Judge found that a scaffold should have been erected.

The critical point here is that the finding was ultimately not based upon the terms of the statutory duty but rather upon the guidance given in relation to the statutory duty.  The Judge would, post Section 69, make an identical finding in negligence unless he considered that the employers should not have followed the guidance.  It was suggested in discussion that the effect of the guidance would be diluted by Section 69, since the guidance was based upon a statutory regime which substantially presupposed civil liability for breach.  However, I do not think this is likely.  There is clear authority in the Courts, for example in relation to British Standards, in Ward v Ritz Hotel (London) Limited, and other cases, that a Defendant must justify not following what might be described as authoritative, if not necessarily statutory guidance.

The Regulations remain in force and indeed create criminal liability.  It would not usually be anticipated that the level of conduct which would attract a criminal sanction would be significantly lower than that, which would amount to a breach of civil duty.

In the current climate, it would be a very bold Judge who, in the context of a serious or even fatal accident, would follow his or her own assessment of what should or should not have been done, as opposed to guidance given by the Health and Safety Executive.  Whilst readers of the Daily Express and the Daily Mail might take different views, a Judge would no doubt be mindful that these are not the only publications in which such a decision might be discussed.

It was also suggested that the absence of a legal burden in civil litigation for a Defendant to show reasonable practicability could have some significant effect.  Again, I would doubt this. The legal burden probably only matters when it has been overlooked at first instance, as in Larner v British Steel.  In practical terms, if a breach of regulation is pleaded as evidence of negligence, then a Defendant will have to engage in the issue and there would be likely, as discussed above, an evidential burden.  In this context, in the final analysis a Court would have to consider whether the Defendant had demonstrated taking all reasonably practical measures, and this would be determined on the balance of probabilities.  Cases where the legal burden might prove decisive, against this background, are likely to be few and far between.

Some members of the audience felt that I was being over sanguine.  However, I did wonder whether this was another manifestation of the middle English penchant for determined and sustained gloom, as evidenced by the resolution of the plot in Brief Encounter.  However, I would remain of the view that law based on spin, as opposed to proper consideration of the law, is unlikely to have any effect, citing the example of Section 1 of the Compensation Act 2006.  Most importantly, Lord Denning predicted correctly, and there has been as a result of European regulation, a massive and welcome cultural change in relation to industrial safety, and it cannot be imagined that it would either be desirable or possible to move backwards from this position, in particular by reference to such a simplistic provision as Section 69.

Charles Feeny*

*I would like to thank Charles Austin for his help in preparing this lecture and additional note.