Employers’ liability and Schrödinger’s cat: When is a breach of duty not a breach of duty?

22/02/2023

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 [2000] 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.

The case law

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.

Cockerill

In chronological order, let’s start with Cockerill v CXK Ltd and [2018] 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:

1. The employers’ duty at common law, is to take reasonable steps to provide a reasonably safe place of work, and system of work, for their employees, so as to protect them, so far as reasonably practicable, from reasonably foreseeable harm.
   
2. In considering the content of that duty it is permissible (and was agreed) that one could have regard to the statutory duties, in order to understand in more detail what steps a reasonable employer could be expected to take.
   
3. However, Parliament evidently intended to make a perceptible change in the legal relationship between employers and employees. This ‘rebalancing’ was intended to ensure that any breach would only be actionable if it amounted to a breach of duty at common law in the circumstances.
   
4. It was therefore no longer enough to demonstrate a breach of the Regulations. Not all breaches of the statutory regime will be negligent.

Tonkins

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):

1. It cannot have been Parliament’s intention to emasculate the statutory duties. If it were, Parliament would have repealed them. It was illogical on the one hand to accept that the duties bind employers in law, but then on the other to hold that (as the Judge in Cockerill did) there was an intended change in the legal relationship. Those two propositions were mutually exclusive.
   
2. There was also the argument that if Parliament had intended that to be the case, then there was a possibility that it (or rather – the Government) would be in breach of EU law for failing to properly implement the relevant Directive(s).
   
3. Therefore, it seemed logical (without more argument in this case) that breach of a statutory duty would constitute ipso facto negligence.

There were therefore two conflicting views on the issue – both from the High Court.

Chadwick

The position was left largely unresolved until the case of Chadwick v RH Ovenden Ltd and Hamilton [2022] 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:

1. The underlying statutory duties remained in place, unchanged.
   
2. However, it was incorrect to say that breach of those duties would automatically constitute negligence (contra Tonkins).
   
3. The reasonable steps an employer should take are situation specific and will be influenced by the work that is to take place. That is an objective test.
   
4. In considering whether the specific duty was owed, the question was whether or not the harm was reasonably foreseeable.

The position therefore was, in essence, a restatement of the well-established principles of common law negligence.

Lewin

Finally, and most recently, we have the case of Lewin v Gray [2023] 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:

1. If this specific Regulation did not exist, there would be no justification for imposing the duty contended for in this situation. The Claimant was a ‘one-man band’ who had worked for the Defendant (also a ‘one-man band’) for many years, as well as for his Father. The Claimant was vastly more experienced than the Defendant, who the relevant authorities saw no reason to pursue.
   
2. The case of Cockerill was decided on ordinary common law principles. That was different to the new (2015) and onerous duty on a client to demand from the contractor something which the contractor would not (but for the Regulation) be obliged to produce. It could not be said that the common law would automatically import such onerous and specific duties as the one contended for.
   
3. Therefore, it might well be that breach of a statutory duty constituted ‘ipso facto’ negligence, but that will not always be the case.

Conclusion

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:

1. Breach of the Regulations does not automatically equate to negligence (see Cockerill, Chadwick, and Lewin).
   
2. Where the duty contended for is one of the more common duties alleged in workplace accidents (e.g., deriving from the ‘6 pack Regulations’) it might well be taken as read that those duties are so embedded into the day-to-day practice of most employers, that they do form part of the common law duty.
   
3. However, even that cannot be taken as a given. The situation may differ, depending on a number of circumstances, such as (but not limited to): the size of the Defendant company, the prior relationship between the Claimant and Defendant, the Claimant’s experience and knowledge, and whether or not harm was reasonably foreseeable.
   
4. In every case therefore, the usual Caparo three stage test (foreseeability, proximity, and whether it would be fair, just and reasonable to impose the duty) will reign supreme.
   
5. If the Regulation/duty relied on is particularly specific (e.g., a construction phase plan), it might be that the Claimant will have difficulty in arguing that the said Regulation informs the common law duty contended for.
   
6. That might especially be the case if the Regulation relied upon post-dates the 2013 Act and has not therefore become embedded into the day-to-day practice of employers.

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.