Litigating without a safety net - an overview of Employers’ liability cases post-ERRA

1. Litigating without a safety net - an overview of Employers’ liability cases post-ERRA • 22nd September 2016 • The Royal Faculty of Procurators in Glasgow • David Wilson & Fraser Simpson

2. Contents • The Enterprise and Regulatory Reform Act 2013 • What the Act means in Practice • Kennedy v. Cordia (Services) LLP UKSC • Lessons from Kennedy – the Common Law developed? • Post Enterprise Case law

3. The Health and Safety at Work Act 1974 • Section 47 Civil Liability • (2) Breach of a duty imposed by Health and Safety Regulations shall, so far as that causes damage, be actionable except in so far as the regulations provide otherwise

4. Ignoring your own expert • Löfstedt Report • “I have concluded that, in general, there is no case for radically altering current • health and safety legislation. The regulations place responsibilities primarily on those • who create the risks, recognising that they are best placed to decide how to control them • and allowing them to do so in a proportionate manner. There is a view across the board • that the existing regulatory requirements are broadly right, and that regulation has a role • to play in preventing injury and ill health in the workplace. Indeed, there is evidence to • suggest that proportionate risk management can make good business sense.” • March 2011, Professor Löfstedt, Professor of Risk Management, King’s College

5. Löfstedt Recommendations • Regulatory provisions that impose strict liability be reviewed and either qualified with a ‘reasonably practicable’ rider where strict liability is not absolutely necessary or else be amended to prevent civil liability from attaching to a breach of those provisions. • • Exemption from health and safety law of those self-employed whose work activities pose no potential risk of harm to others. • HSE to review all its Approved Codes of Practice

6. “Reclaiming Health & Safety For All” Chris Grayling MP : “…reducing the burden on business, whilst maintaining the progress that has been made in health and safety outcomes.” 28th November 2011

7. The business case for the Regulations Lord Hope in Robb v Salamis (M & I) Ltd 2007 SC (HL) 71 – Para 15: “The dominant purpose of all these provisions is to encourage improvements in the safety and health of workers at work. In my opinion the purpose of Reg 4(4) is to ensure, not to reduce, the protection provided for by Art 3(1) of the Work Equipment Directive that Reg 4(1) was designed to implement.”

8. ERRA 2013 Royal Assent – 25th April 2013 Section 69 – into force on 1st October 2013 Amended Section 47(2) : “Breach of a duty imposed by a statutory instrument containing (whether alone or with other provision) health and safety regulations shall not be actionable, except to the extent that regulations under this section provide.”

9. The Enterprise and Regulatory Reform Act 2013 Hansard, 22 April 2013 “The codified framework of requirements, responsibilities and duties placed on employers to protect their employees from harm are unchanged, and will remain relevant as evidence of the standards expected of employers in future civil claims for negligence”

10. The Expert’s View? • “This means that, unless exceptions apply, claims for compensation in relation to breaches of health and safety legislation will need to prove that the employer has been negligent. The approach being taken is more far-reaching than I anticipated in my recommendation and ….. I hope that the Government will carefully monitor the impact to ensure that there are no unforeseen consequences...” • January 2013, Professor Löfstedt, Professor of Risk Management, King’s College

11. Enterprise and Regulatory Reform Act 2013 • The Practical Effects – • As at 1st October 2013 anyone who has had an accident at work will no longer be able to rely upon a breach of any of the “6 Pack Regs” to claim liability against employer or third party • The Regulations persist but any subsequent breaches will now only result in criminal sanctions should the HSE have the resources to prosecute offenders

12. Enterprise and Regulatory Reform Act 2013 • The Practical Effects • The Regulations will continue to contain key duties including – • Risk Assessment • Risk Avoidance and reduction • Provision of suitable work equipment, workplace and protective equipment • Maintenance of work equipment and the work place • Provision of information, instruction and training • These are all part of the common law duty owed by an employer to an employee to provide • safe place of work, • a safe system of work, • competent staff and • proper equipment

13. Life Post Enterprise • Minister Viscount Younger stated – • “We acknowledge that this reform will involve changes in the way that health and safety related claims for compensation are brought and run before the courts. • However, to be clear and to avoid any misunderstanding that may have arisen, this measure does not undermine core health and safety standards ....... • The codefied framework of requirements, responsibilities and duties placed on employers to protect their employees from harm are unchanged and will remain relevant as evidence of the standards expected of employers in future claims for negligence.”

14. The Effect of a Ministerial Statement • When Construing statutes the courts may have proper regard to ministerial statements – • Pepper (Inspector of taxes) v Hart 1992 UKHL 3 • This provides significant support to the assertion that the common law should take up much of the slack

15. Life Post Enterprise The Regs will continue to provide a standard to which the reasonable employer should attain. If they do not then this should be enough to establish negligence on the part of the employer The reason being that a reasonable employer will not allow himself to act in a manner that would constitute criminal conduct

16. In reality… • Breach of Regulations does not in itself confer liability • But Breach is evidence of failure to take reasonable care at common law

17. Life Post Enterprise Approved Codes of Practice These will greatly assist you in establishing what standard the reasonable employer must reach Some of the existing case law on this subject will assist

18. Approved Codes of Practice Baker v Quantum Clothing Group Plc [2011] UKSC 17 Hearing loss case Supreme Court approves approach of assessing employer’s common law duty with reference to an Approved Code of Practice Judge entitled to hold that the Code of Practice determined the standard of safety in the circumstances

19. Life Post Enterprise How do you tackle an accident in the workplace now? State that the Regulation has been breached State that breaching the Regulation is evidence of negligence Include any guidance in the ACOP that has not been followed

20. Life Post Enterprise If liability remains disputed the pursuer should plead and offer to prove that the defender:- Failed to take all reasonably practicable steps Failed to comply with the regulations

21. Conventional Common Law Principles Obviously helpful to pursuers However it is not as strong as the burden shift which would occur under statute when dealing with “reasonable practicability test” The Common Law burden is much more easily discharged by the defender than the statutory equivalent of reasonable practicability and it remains for the claimant to establish causation.

22. Conventional Common Law Principles Defenders would be well advised to obtain their own evidence specifically directed at proving why more could not reasonably have been done to reduce the risk Even though the burden is a lighter one, that should not mean that anything other than the best evidence available should be obtained

23. Conventional Common Law Principles • There will be cases where the deployment of conventional common law principles can lead to the same result as a breach of statutory duty • In certain cases the burden of proof shifts at common law • Davies v Global Strategies Group [2010] EWCA Civ 648 • “Once a claimant shows that he was exposed to a risk which was capable of being reduced there is an evidential burden on the defendant employer to show why the reduction was not achieved”

24. Conventional Common Law Principles • However in practice any common law burden is likely to be much easier to discharge than the statutory equivalent • The claim in Davies itself failed because the defendant established (albeit with rather unsatisfactory evidence) why it was reasonable not to fit bullet-proof windscreens to vehicles operating in Iraq

25. Life after PUWER Employer's Liability (Defective Equipment) Act 1969 At common law an employer was not liable for latent defects Statutory alteration - “if an employee suffers personal injury in the course of his employment as a result of a defect in equipment provided by his employer for the purpose of his employer's business and the defect is attributable wholly or in part to the fault of a third party (e.g. a manufacturer or supplier) whether identified or not, the injury is deemed to be also attributable to negligence on the part of the employer”

26. Life After PUWER Employer's Liability (Defective Equipment) Act 1969 - cont a) Must be an employee b) in the course of their employment c) the equipment has to have been supplied by employer d) for the purposes of the employer's business e) the defect is wholly or partly the fault of a third party NB The fact that the defect could not be detected by the employer is irrelevant

27. Life After PUWER A defect includes everything that renders the plant etc unfit for the use for which it is intended if used carefully and as intended In Ralston v Greater Glasgow Health Board 1987 SLT 386, the fact that soap was 'materially more irritant than other soaps' and so liable to cause dermatitis was enough to fall within the meaning of “defect”.

28. Life After PUWER The definition of equipment is far reaching from a whole sea-going ship (Coltman v Bibby Tankers Ltd [1988] AC 276, HL) a case where the entire ship sank due to a presumed defect with the loss of all on board; and to a flagstone being laid (Knowles v Liverpool County Council [1993] IRLR 588, HL).

29. Life After PUWER • Providing Defective Equipment: The Limits of the Act – • Knowledge of a defect which an employee has acquired for a temporary task is not necessarily to be imputed to the employer: Maclean v Forestry Commission 1970 SLT 265 (employee aware of horse's uncertain temper when using it temporarily but was not in charge of horses). • An employer who has designed apparatus himself must take reasonable care that the design is safe: McPhee v General Motors Ltd (1970) 8 KIR 885.

30. Kennedy V Cordia (Services) LLP [2013] CSOH 130

31. The facts: • home carer employed by the defenders to visit clients in their homes to provide personal care. • very severe winter of 2010, the pursuer suffered injury during the course of her employment when she slipped and fell on snow and ice on a path while on her way to visit a terminally ill client. • “an errand of mercy” • Among the precautions the pursuer averred should have been implemented was the provision by the defenders of non-slip attachments for footwear. • On average 4-5 employees slip and fall annually; over 13 in 2010 1lone

32. The Pursuer’s Case - • The pursuer alleged a breach by the defenders of their duties under: • Personal Protective Equipment at Work Regulations 1992 (Anti-slip attachments) • Management of Health and Safety at Work Regulations 1999 (Risk assessment) • Common law

33. The Defender’s Case • Risk was “tolerable” (despite concession that fall on ice was likely and injury could be harmful) • Adequate controls in place • Training ? • Induction Hazard Awareness booklet • Instruction on “appropriate” footwear • Phone supervisor? • Contributory Negligence

34. A tale of 2 “experts”? • Lenford Greasley & Associates Ltd • 67. Engineering & law degrees • Long experience in health and safety at work field – senior management positions • Given evidence in court many times • Former member of HSE – Inspector of Factories • Associate member of UK Slip Resistance Group • Carried out or revised 50-100 risk assessments. • Locus visit & 2 reports • Referred to academic papers re slip resistance of attachments and own experience of Yaktrax

35. Emma Rodger • Defender’s only witness • 34, defender’s “business development manager for health and safety” • Degree in politics and history • A number of qualifications on health and safety • Post graduate diploma on risk management • “familiar with health and safety and human behaviour legislation” • Admitted in cross, risk was “dead cert” and was therefore “substantial” but maintained this was reduced so far as reasonably practicable by advice to wear adequate footwear

36. Lord McEwan • “I accept her as an expert, though without the experience of Mr Greasley” • BUT • “…when she was challenged either directly, or for the alleged short comings of others, she became very defensive and seemed unable or unwilling to accept any criticisms of her procedures and risk assessments. That, to say the least was a difficulty for the court…”

37. Lord McEwan • “The direction of the law is to level safety upwards and in my opinion, the failure of the defender’s witness to address this by considering PPE has resulted in the breach of duty in all areas”[49]

38. The Outer House • Neither risk assessment was “suitable and sufficient” : methodology criticised : “it is wholly unclear that the so called precautions in place justified a reduction of the risk to “tolerable”” (rather than “substantial”) • Evidence about training and enforcement was “vague and unsatisfactory” • No attempt to consider PPE for footwear. “That in itself shows that whatever the precautions the defenders thought they were taking could never amount to “adequate control by other means which are equally or more effective” • Breach of BOTH Regulations

39. The Outer House • “For the same reasons I find the defenders also liable at common law. In the face of an obvious and continuing risk they provided no safe footwear. There is no evidence they checked what was being worn. There was no evidence of any system of working or reporting in when staff had to go out in extreme weather and walk on snow and ice”

40. Contributory Negligence? • Park closer? • Lack of care? • Choice of boots? • Failure to report? • NO!

41. Lady Smith • “Fundamentally, the risk to the respondent was an ordinary risk arising, in a public place, from the ordinary facts of life in Scotland…There was nothing about the nature of her work which caused the risk or exacerbated it”

42. Lord Brodie • To extend the 1992 Regulations beyond work related risks… • ”would constitute an unwarranted intrusion into the private lives of competent adults who within the sphere of day to day living are likely to be better placed to make judgements as to what will be conducive to their health and safety than their employers will be.”

43. Lead Judgement - Lord Brodie • Greasley’s evidence was inadmissible : • “The criticism of the Lord Ordinary here is that he abdicated his role as decision maker in favour of Mr Greasley”[14] • “I do not recognise “health and safety” as being…a recognised body of science and experience which is suitably acknowledged as being useful and reliable, and properly capable of reaching and justifying the opinions offered”[16]

44. Lead Judgement - Lord Brodie • The 1992 Regulations did not apply to the task the pursuer was undertaking at the time of the accident : • “..the concern of the 1992 Regulations is the worker at work and the risks to which that worker is exposed which arise specifically from that work”[23] • …and if they did apply, risk was adequately controlled by other means • The 1999 Regulations had not been breached “A risk to which a worker is exposed within a public environment which his employer does not control is not a “risk at work” unless his work in some way increases the risk”[26] • In any event, any breach of the 1999 Regs could not give rise to a direct cause of injury [20]

45. Inner House Decision • No breach of duty at common law – • Morton v William Dixon Ltd 1909 SC 807 • Where negligence consists of a fault of omission – it is necessary that the thing that was not done was a thing which was commonly done by other persons in like circumstances, or that it was a thing which was so obviously required that it would be folly for anyone to neglect to have done it. • Also – not “Fair, just and reasonable” in terms of Caparo Industries plc v Dickman [1990] 2AC, for there to be a duty of care of the scope contended for. [5] and [34] • No causation between various breaches and any injury claimed

46. Notice of Appeal • Whether the Inner House erred – • in finding Greasley inadmissible in certain material facts; • in interfering with Lord Ordinary’s finding that the defenders’ risk assessment was not suitable and sufficient; • in their interpretation of the 1992 Regs, in particular, that regs did not apply to this case, and if they did that risk was adequately controlled by other means; • In finding no breach at common law; • In finding on evidence before Lord Ordinary it could not be said that any breach of statute or common law was not causative.

47. The Supreme Court • Lady Hale, Lord Wilson, Lord Reed, Lord Toulson, Lord Hodge • Unanimously allowed the appeal and reinstated the decision of the Lord Ordinary • Issues of practical importance beyond circumstances of case • Clarifies role of expert witnesses • Updates EL common law post-ERRA

48. Expert Witnesses • 4 considerations governing the admissibility of expert evidence – • Whether [it] will assist the court; • Whether the witness has the necessary knowledge and experience; • Whether the witness is impartial in his or her presentation and assessment of the evidence; and • Whether there is a reliable body of knowledge or experience to underpin the expert’s evidence. • Opinion evidence is subject to a threshold of necessity when the 4 considerations are assessed. • Where an expert gives an opinion, what carries weight is the reasoning, not the conclusion.

49. Expert Witnesses • Types of factual evidence an expert might be allowed to give – • Evidence based on expert’s personal observation or sensation (eg locus visit & personal use of Yaktrax) • Information from official publications (eg HSE Guidance) • Evidence of practices on named relevant parties (eg other local authorities) • Expert’s evidence of what he would have done – may have limited weight, but not inadmissible (eg assessing risk as “substantial” rather than “tolerable”).

50. Greasley admissible • Andrew Smith QC conceded at outset that health and safety practice could properly be the subject of expert evidence. “We think that that concession was correctly made”[36] • Inner House erred - i) in treating much of the factual material in Greasley’s reports as inadmissible on the basis that it was not skilled evidence that assisted the court; and ii) in excluding his evidence on how he would have carried out a risk assessment. • “..we see no reason why the Lord Ordinary should not have found helpful the reasoned view of a person experienced in carrying out risk assessments on the rating of risks within a risk assessment…His evidence provided a basis for the Lord Ordinary to weigh up the opposing views when deciding whether Cordia had suitably and sufficiently evaluated the risks and identified the measures needed to protect health and safety. We have difficulty in seeing how Miss Kennedy’s counsel could have presented her case on these matters by legal submissions alone”[67] • “..The Lord Ordinary applied his own mind to the legal questions which he had to decide”[70]