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Injured at Work? The Law is Changing

Nicole Rogers - DAS Law

  1. 26 September 2013
  2. Personal Injury
  3. 0 comments
Working injured

We’ve all seen the Oscar-worthy performances on TV from ‘employees’ who have injured themselves in the workplace, and subsequently gone on to make personal injury claims against their employers.

But how much do we actually know about personal injury law? What do we need to prove in court? This article is aimed at giving a brief synopsis of the current position concerning these claims, and the implications of the legal changes which are due to be implemented later on in the year, under the Enterprise and Regulatory Reform Act 2013.

This article is for information purposes only, and readers are advised to contact a professional in the case of making a personal injury claim.

The Enterprise and Regulatory Reform Act 2013, as you can tell by its less than informative name, isn’t just aimed at shaking up personal injury law. It would be more aptly named the ‘Let’s Make Some Changes Here, There and Everywhere’ Act, but for the purposes of this article, the key date is 1 October 2013, which is when the changes relating to workplace accident claims will be implemented.

Before we look at these changes, let us first explore the current position on employer’s liability.

There are many pieces of legislation which companies are obliged to adhere to. If you are an office worker, your employers should be familiar with the Health and Safety (Display Screen Equipment) Regulations 1992. Your job may involve lifting, and therefore the Manual Handling Operations Regulations 1992 will come into play. There are too many acts to mention here, but the real big player, or the ‘umbrella act’ is the Health and Safety at Work Act 1974.

At the moment, section 47(2) of the Health and Safety at Work Act says:

“Breach of a duty imposed by health and safety regulations shall, so far as it causes damage, be actionable except in so far as the regulations provide otherwise.”

In practice, what this means is that if a worker is injured and he can prove that the employer has breached its statutory duty, he is entitled to claim compensation. In other words, Section 47(2) of the Health and Safety at Work Act 1974 provides that if employers breach health and safety legislation, this automatically confers a civil right to make a claim unless otherwise stated.

Let us look at a real-life example from the case of Stark v Post Office [2000] ICR 1013.

Mr Stark was employed as a postman and in order to carry out his role, the Post Office supplied him with a bicycle. However, Mr Stark was injured whilst working when the front brake of his bicycle snapped, which locked the front wheel and in turn, propelled Mr Stark over the handlebars. He suffered personal injury and claimed for the same against his employers, the Post Office.

Mr Stark relied on regulation 5 of the Provision and Use of Work Equipment Regulations (PUWER) which states that “Every employer shall ensure that work equipment is maintained in an efficient state, in efficient working order and in good repair”.

The Post Office initially thought that they had a cast-iron defence because of the unexpected, random nature of the fault, and that no amount of rigorous inspection or maintenance would ever have discovered it. In other words, how could the Post Office be expected to avoid this injury to Mr Stark if it wasn’t foreseeable? The court actually accepted the argument that the defect would not have been revealed after careful examination. However, the court held that regulation 5 PUWER imposed a strict obligation to ensure that the equipment was at all times in an efficient state and so because the bicycle injured Mr Stark, the Post Office had breached its statutory duty. Put simply, regulation 5 had given rise to strict liability and despite the fact that employers may impose a policy of maintenance and repair, this wouldn’t be enough to escape liability.

So, the principle derived from the case of Stark (which is still the present position until 1 October 2013) is that even if an employer takes all reasonable steps in order to comply with a statutory duty; even if an employer can demonstrate in court that the defect in question would have been impossible to detect before any injury occurred, the mere fact that an employer has breached its statutory duty and in turn, injured an employee, is sometimes enough for the worker to succeed in court. In Stark and subsequent cases which followed suit, the court paid particular attention to the word ‘’shall’’, which the court confirmed imposed an absolute obligation on employers.

However, a change is on the horizon. Section 69 of the Enterprise and Regulatory Reform Act 2013 will amend Section 47 of Health and Safety at Work Act 1974 so that civil liability will only apply where this is specifically provided for in the regulations. Simply put, the majority of injured workers will have to prove their case under the principles of good old common law negligence. This means that the way in which injured workers are able to claim will radically change after 1 October 2013.

But what does this mean for us workers? How do we show negligence? In very general terms, negligence can be broken down into 3 elements;

  1. Is there a duty of care? This shouldn’t be too difficult to overcome as it is usually a given that our employers owe us a duty of care.
  2. Has there been a breach of that duty? In other words, has our employer acted reasonably? This is the first proper hurdle, as the law has never defined ‘reasonable’. Throughout the years of litigation and numerous cases, the judiciary have tried to narrow the reasonableness test to: has the employer knowingly exposed the worker to foreseeable injury/risk of injury? If the answer is yes, the duty has been breached. If the answer is no, we must consider whether another reasonable employer, in the same situation, would have acted differently, i.e. would another employer have realised that there was a risk and therefore taken steps to protect the worker from injury?
  3. Did the acts or omissions of the employer actually cause the injury to the worker? In other words, would the injury still have occurred without the employer’s breach? If the answer is no, then causation is satisfied.

So, as you can see, the principles for bringing a claim are about to experience a large overhaul. Let us go back to the example of Mr Stark. What if his claim was brought after 1 October 2013? As stated above, Mr Stark would need to prove his case based on common law negligence. Given that the Post Office had successfully shown that even through rigorous examination, the defect would still have been overlooked under the new regime, Mr Stark’s claim would surely fail.

Does that mean that all future claims will fail? Of course not. For example, if the Post Office had given Mr Stark a bicycle which was known to be faulty, his claim would still succeed. Having said that, injured workers will undoubtedly face more of an uphill struggle. This is because the law of negligence is much more complex because the burden of proof lies with the claimant. What this will mean in practice is that injured workers will have to build up a case in order to show negligence against their employers. Therefore, workers will have to gather more evidence than before, interview more witnesses and prepare more documents. Things won’t be made easy due to the fact that the evidence will usually be held by their own employers. This increased evidential burden will be more time consuming and costly, so it’s clear to see why this change has not been cheerfully greeted by many critics.

But, employers cannot rest easy. The Enterprise and Regulatory Reform Act 2013 does not pave the way for managers to relax health and safety policies. Many claims can and will succeed despite the October changes, but it is fair to conclude that this legislative juggernaut will probably be welcomed by our bosses.

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