Section 47(2) of HSWA explicitly provides that a breach of ‘health and safety regulations’ (a breach of statutory duty) is actionable where the breach causes damage, unless the particular regulations specifically exclude this right (currently very few regulations exclude civil liability). This is in contrast to the position for breach of the general duties under HSWA where section 47(1) makes clear that there is no right of action in any civil proceedings for breach of statutory duty.
Most claims are currently brought in respect of both breach of statutory duty and negligence. In the absence of the former, it is expected that the law of negligence will develop to deal with situations and legal issues previously dealt with under statutory breach, more claims may be defended, rather than settled by negotiation at an earlier stage, incurring greater costs until the state of the law becomes clearer and is more settled.
There is scope to re-examine many of the low risk claims that have been facilitated by the breach of statutory duty option. This would not only apply to tests of breach of duty, where the state applies a precautionary standard which would not automatically be adopted at common law, but also to the temptation to regard a breach of statutory duty as being self-evidently causal or to have made a material contribution to causation.
The implied sate of flux will lead to some uncertainty in business planning.
It may be that the duty of care standards adopted by the state for political purposes will now drift more towards those of the common law. Having two standards by which to judge what an employer should reasonably do may not be sustainable.
This author recalls that a dinner hosted by IoD was scandalised when I objected that the term ‘reasonably practicable’ was not the same as ‘reasonable’ and proposed that employers should endeavour to restore the word reasonable to the realm of health and safety compensation. The dinner was for health and safety consultants (around the turn of the century). My fellows insisted that I couldn’t possibly mean it and several times attempted to make me say ‘reasonably practicable’ instead. I refused. My proposal was regarded as demanding they apply reason and judgement as opposed to automatic standards. It would mean that they would have to say why they thought their recommendations were reasonable. In time, some H&S practioners and insurance surveyors could indeed become skilled at this. They once were.
If the courts accept the challenges implicit in Clause 61,
- insurers will be at the forefront of establishing (re-establishing) what the word reasonable means, how to judge the balance of probabilities, how to judge foreseeability. Insurers will propagate the wisdom defined in court.
- Expert evidence will be re-written.
- More issues will become evidence-based as opposed to statute-based. Evidence, if experts know how to present it, should provide for the more sustainable position.
- other legal avenues such as breach of contract and, vicarious liability will be explored
The Radar service provides a record of challenges to the logic generated by HSWA 47(2). These reports suggest opportunities for insurers to differentiate themselves during a period of transition. Evidence will be in demand, for a little while at least.