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The Enterprise and Regulatory Reform Act 2013 in practice

The Enterprise and Regulatory Reform Act 2013 in practice. Speakers: Mark Paterson Risk Manager – QBE European Operations Stephen Byass Technical Director – DWF Solicitors LLP. Background to the Act. Background No 2. Where does it come from? Political Background Professor Lofstedt

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The Enterprise and Regulatory Reform Act 2013 in practice

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  1. The Enterprise and Regulatory Reform Act 2013 in practice

  2. Speakers:Mark Paterson Risk Manager – QBE European OperationsStephen ByassTechnical Director – DWF Solicitors LLP

  3. Background to the Act

  4. Background No 2 • Where does it come from? • Political Background • Professor Lofstedt • Government response to Professor Lofstedt • Interaction with Regulations • Exceptions

  5. 104 Sections 22 Schedules611 Pages

  6. Primary purpose of the Act?

  7. We are concerned with 1 section only - in a section labelled " Miscellaneous"S 69: Civil liability for breach of health and safety duties.

  8. Amends s 47 of the HSWA 1974 - especially s47(2) which is now substituted by:“(2) Breach of a duty imposed by a statutory instrument containing (whether alone or with other provision) health & safety regulations shall not be actionable except to the extent that regulations under this section so provide. (2a) Breach of a duty imposed by an existing statutory provision shall not be actionable except to the extent that regulations under this section so provide (including by modifying any of the existing statutory provisions). (2b) Regulations under this section may include provsion for-(a) a defence to be available in any action for breach for the duty mentioned in subsection (2) or (2a)(b) any term of an agreement which purports to exclude or restrict any liability for such a breach to be void.

  9. What does it mean?Burden of proofStrict liability

  10. Previously s 47 of the HSWA contained a presumption that a breach of regulations made under the Act would give rise to a civil liability unless the regulation specifically excluded. The ERRA reverses that presumption.

  11. ERRA is not retrospective as confirmed by ERRA s 69(10):" The amendments made by this section do not apply in relation to breach of a duty where that breach occurs before the commencement of this section"Therefore not when proceedings issued but when breach occurs - usually the date of the accident.Therefore for all accidents prior to 1.10.13 old regime applies.

  12. On accidents post 1.10.13 C will have to establish that D has been negligent.Therefore in a case where D has been prosecuted (by HSE or LA) and either pleads or is convicted in relation to a breach of a regulation - C will not be able to rely upon that breach/conviction OF ITSELF to found a civil claim.

  13. Regulations will continue to be consistent with common law duty owed by employer.

  14. If D has been convicted won't this be fairly useful evidence of negligence?Especially so given the different standards of proof?

  15. Difference will be that in cases of strict liability D will now be able to run a defence of reasonable practicability.

  16. Stark v The Post Office

  17. Would stark now be differently decided?

  18. APIL comments:" charter for rogue bosses"" Many people injured through no fault of their own will find it extremely challenging to secure justice"

  19. " The effect of this monumental shift is that the claimant will be required to prove common law negligence in order to succeed on liability. In practice, pleaders and advocates can be expected to rely with perhaps even greater intensity than hitherto on regulations allegedly breached with a view to proving what a reasonable employer should have done"

  20. Overall effect?Case law

  21. Challenges

  22. Summary

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