Ruling proves the law has moved on to the chagrin of some and relief of others - Steven Smart

Some saw it as a step being taken by the government in an attempt to derail the “compensation culture” sweeping the UK. Others felt that it was a draconian measure that would harm ongoing efforts to “level up” health and safety in order to protect workers.
Steven Smart is a Partner and Head of Glasgow office, Horwich FarrellySteven Smart is a Partner and Head of Glasgow office, Horwich Farrelly
Steven Smart is a Partner and Head of Glasgow office, Horwich Farrelly

Section 69 of the Enterprise and Regulatory Reform Act 2013 - which led to such very different viewpoints - was certainly controversial. It was enacted with the aim of reducing the burden of health and safety legislation on businesses. The long-established right of an injured party to rely upon statutory regulations to advance a claim for damages following an accident was removed.

No longer could provisions be relied upon which imposed strict liability upon employers. This often resulted in there being no defence to claims in circumstances where it might have been argued there was nothing that could reasonably have been done to avoid an accident.

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Instead of this onerous test, employees required once again to prove that an employer had been negligent to succeed with a claim.

What did this mean in practice? Would this result in a return to “Victorian times” in terms of health and safety legislation, as some had opined? Or would businesses be able to defend claims that they argued were genuine accidents?

In Scotland, claimants continue to refer to breaches of relevant provisions in the vast majority of cases, arguing that they inform the assessment of whether an employer had taken reasonable care. The Scottish Courts have accepted that this is valid. Breach of a provision which may result in criminal liability cannot be ignored when assessing whether an employer had done all they reasonably could to avoid an accident. However, confusion remained and disputes continued about the application of the standards set down in regulations when negligence required to be proved.

In the case Cockerill v CXK, the Court of Appeal in England reiterated that the position had changed and that any breach of a strict liability provision would have to be shown to be negligent and causative of the accident and injury sustained for a claim to succeed. The All-Scotland Personal Injury Court has now considered the same issues in the case of Richard Goodwillie v B&Q Plc.

The Pursuer (Mr Godwillie) had worked as a warehouseman for B&Q for 35 years. The case related to him using a knife provided by his employer to open a bundle of bath panels. The knife slipped and the Pursuer cut his hand. He alleged that the knife was unsuitable work equipment and that he had not been properly trained in how to use it.

Sheriff McGowan considered the interaction between health and safety regulations and Section 69. He held that the existence of a duty of care is not sufficient for liability to be established, even for a foreseeable loss. Fault must be established. The standard of care is neither strict nor absolute, but instead one of reasonable care.

Sheriff McGowan accepted that as a matter of general principle, the regulations are relevant to the assessment of the specific obligations which may be incumbent upon an employer in discharging the general duty to exercise reasonable care towards employees. However, their precise impact in any given case depends upon the facts. The Pursuer’s claim failed because he could not establish that the knife provided was unsuitable, nor that training provided was inadequate. The mere fact the accident had occurred was not enough.

The decision is one that seems uncontroversial given the accident circumstances. However, the guidance on the applicability of the regulations will likely spark further debate generally and in individual claims about what must be established in order for a claim to succeed. There is now little doubt the law has moved on, to the chagrin of some and relief of others.

Steven Smart is a Partner and Head of Glasgow office, Horwich Farrelly