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Update: Enterprise and Regulatory Reform Act 2013

By Richard Thomas
Global Risk Solutions Practice Leader,Grp Spec&Cor

Section 69 of the Act (see the July edition of our Technical Claims Brief), which amends section 47 of the Health and Safety at Work Act 1974 to effectively remove civil liability for breach of health and safety regulations came into effect on 1 October. It is not retrospective and only applies in respect of incidents occurring on or after that date.

The regulations affected include the ‘Six Pack’ concerned with the Provision and Use of Work Equipment, Personal Protective Equipment, Manual Handling, Workplace Health and Safety, Display Screen Equipment and the Management of Health and Safety at Work.

The impact of the legislation on employers’ liability claims defensibility remains uncertain. Whilst the removal of strict liability is to be welcomed, the number of claims that are likely to fail under this amendment will probably be minimal. The concern is that section 69 will merely lead to satellite litigation and increased defence costs – the burden of proof remains with the defendant to show they have discharged their common law duty of care.

The overarching message is; where a claim was likely to succeed pre 1 October, it is likely to remain so thereafter. The collation of evidence is vitally important to the defence of any claim and that remains the case under section 69. That in turn brings with it a cost consequence, which will be particularly felt by defendants following the introduction of Qualified One–way Costs Shifting