Almost 10 years on from its implementation, James Bentley examines the case law that has developed since Section 69 of the Enterprise and Regulatory Reform Act 2013 was introduced and offers comment on how employers’ liability claims might be analysed going forwards.
If I recall rightly, prior to its implementation almost a decade ago, Section 69 of the Enterprise and Regulatory Reform Act 2013 heralded reams of analysis and commentary from PI practitioners on ‘both sides of the aisle’ (as it were). Most had settled on the view that the change would only abolish cases that relied upon ‘strict liability’, such as Stark v Post Office  EWCA Civ 64. The reasoning was that the Regulations still carried with them the possibility of criminal sanctions. The orthodox view at the time therefore was – if breach of the Regulations was (in principle) a breach of the criminal law, it logically followed that it would constitute a breach of duty in negligence also. If the Defendant was in breach of the criminal law, that would ipso facto constitute negligence. Wouldn’t it?
In stark contrast to the volume of commentary on the issue, the interplay between the Regulations and the common law has still not been explored by the Court of Appeal, let alone by the Supreme Court. However, at the High Court level, there has been a smattering of cases which have grappled with the topic. This article seeks to divine what the position might now be almost 10 years on from the implementation of Section 69 of ERRA 2013.
Save for those which have made only a passing reference to Section 69 (normally because it was agreed that breach in the particular case would constitute negligence), there are 4 cases which are worthy of discussion.
In chronological order, let’s start with Cockerill v CXK Ltd and  EWHC 1155 (QB).
In that case the Claimant was visiting unfamiliar premises whilst at work. She walked through an open doorway and fell down a 7-inch doorstep. It was said that the fact that the door was open was a breach of duty, and that more should have been done to warn her of the step, by way of signage, lighting etc.
The Claimant relied upon Regulation 3 (1) of the Management (Health and Safety at Work) Regulations 1999 (the duty to risk assess), and Regulation 12 (1) and (2) of the Workplace (Health, Safety and Welfare) Regulations 1992 (ensuring that the floor/traffic route was of suitable construction, and that it shall not be so uneven or slippery so as to expose any person to a risk to his/her health and safety).
The claim failed on the basis that that there was no duty to keep the door shut to prevent the Claimant falling down the steps. Furthermore, the step was adequately lit, marked with tape, and there was nothing ‘egregiously out of the ordinary’ about it.
More interesting however, and often cited, is the Judge’s commentary on the impact of Section 69, where she held:
We then move to Tonkins v Tapp (HHJ Gore, Exeter QBD, 7th December 2018), where a different view to that of Rowena Collins Rice (above) was taken. In Tonkins the Claimant (a self-employed carpenter) fell from a scaffold tower. The claim failed on the facts.
In those circumstances it was unnecessary to decide what the impact (if any) Section 69 was, but, nevertheless, HHJ Gore had this to say (and I paraphrase):
There were therefore two conflicting views on the issue – both from the High Court.
The position was left largely unresolved until the case of Chadwick v RH Ovenden Ltd and Hamilton  EWHC 1701 (QB). In that case the Claimant was working for D2 on D1s premises. He was dismantling an aircraft when a gas canister (left in an unexpected position) exploded. The Judge (Simon Tinkler) cited the conflicting passages in Cockerill and Tonkins and came to the view that:
The position therefore was, in essence, a restatement of the well-established principles of common law negligence.
Finally, and most recently, we have the case of Lewin v Gray  EWHC 112 (KB), which on its facts is perhaps the most interesting.
In that case, the Claimant (a self-employed builder) worked on the Defendant’s farm. He was instructed to install guttering to the roof of a barn. It was known that the roof was fragile. Whilst working at height, he lost his balance and sustained catastrophic injuries. The case came down to the allegation that the Defendant was under a duty to ensure that the Claimant had completed a Construction Phase Plan (see Regulation 4 (5) (a) of the Construction (Design and Management) Regulations 2015).
The case is interesting because the Defendant accepted that there was no such plan. There was therefore, in principle, a breach of the criminal law. However, for whatever reason, no prosecution had been pursued. Despite that, the claim still failed. On the issue of Section 69, the Judge’s reasoning was as follows:
So, what does all the above mean? What principles (if any) can we derive from the above cases. It seems that the following approach to employers’ liability claims has emerged:
The above is only a summary of the cases and the strands of reasoning that have emerged. The position may well be revisited again in the near future. However, for now, practitioners will have a judgement call to make as to whether the duties alleged are ‘proper common law duties’ or whether they are specific statutory duties, that but for the intervention of Parliament, would not pass the usual Caparo test.
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