Strick Liability following The Enterprise Act.

This article was published in the December edition of APIL’s PI Focus

As a personal injury solicitor entering the profession from law school in 2003 very few cases were relied upon as frequently and fondly as Stark v Post Office (CA 2 March 2000). This case imposed an absolute duty on the employer when the employee postal worker was injured when a brake on his bicycle failed. The judge stated that under the Provision and Use of Work Equipment Regulations 1992 (PUWER) strict liability applied. Mr Stark won even though the post office had a reasonable system of inspection and maintenance. PUWER did not talk about reasonableness or temper things with ‘as far as is practicable’. It used straight talking language and phrases such as,

5(1): “Every employer shall ensure that work equipment is maintained in an efficient state, in efficient working order and in good repair.”

I relied upon this case routinely where work equipment caused injury where there was or where there was not an obvious defect. Examples included a Client who was injured when a wheel fell off his work van causing the vehicle to crash into a motorway barrier. It did not matter when the pre-accident MOT or service was, or when the vehicle was last inspected. All we needed to win was for it to state in the police report that the wheel came off the work van which was work equipment. Strict liability applied – end of story. Another Client suffered injury when machinery at the end of a bowling lane jammed and caused injury when the Client went to release it. It did not matter that he probably should not have rushed into trying the free the equipment and that logic dictated that contributory negligence should apply as he had gone against his training. The machinery was defective and had jammed so strict liability applied. As strict liability applied there could be no deduction for contributory negligence.

It gave certainty to know that liability could be established quickly and the case could be approached with confidence knowing that strict liability applied. Stark would be quoted from the outset in the letter of claim and was part of the precedent allegations in any work equipment case. Under PUWER liability would usually be clear cut. If something went wrong with a piece of equipment causing injury the employer was extremely likely to be held to blame under either regulation 4 or 5. This gave certainty for Claimant and Defendant’s alike.

The Northern Ireland case of Rooney v Western Education and Library Board [2015] NIQB 87 is quoted by many as the pinnacle of the law in favour of employees. Ms Rooney brought an action against her employer after a cup she was washing broke and she suffered a laceration to her wrist. The accident happened on 11^th March 2011. The claim was brought solely under the Provision and use of Work Equipment Regulations (Northern Ireland) 1999 and it was not alleged that the Defendant had been negligent. Ms Rooney did not need to show negligence to succeed.  The cup in question was not even provided by the school but provided by another member of staff. The Defendant argued this and also argued it was not ‘work equipment’. The judge found in favour of the Claimant and introduced the concept that employers would be strictly liable for any defective equipment under the Regulations. Even where an item is brought into the work place, and then adopted into the work place, this too would constitute work equipment.

The key thing about this case is the date of the accident. It was March 2011. Had the accident happened after 1^st October 2013 and the claim brought after this date there would probably have been a very different outcome.

Effect of the Enterprise and Regulatory Reform Act 2013 (ERRA)

Everything changed under Section 69 of the Enterprise and Regulatory Reform Act 2013. This came into effect on the 1^st October 2013 and by many was seen as the biggest change to the law on employers’ liability for twenty years. Following this Act employees could only claim for breach of statutory duty if a regulation expressly said they could. The only Regulations that did expressly provide for civil liability were removed. The employee now had to show negligence and the very concept of strict liability was therefore removed. The technical effect of s69 of ERRA was to amend s47 of the Health and Safety at Work Act 1974. The new regime applied to all cases after 1st October 2013. The explanatory notes to the ERRA says; “the amendment…….reverses the present position on civil liability, with the effect, unless any exceptions apply, that it will only be possible to claim for compensation in relation to the affected health and safety legislation where it can be proved that the duty holder (usually the employer) has been negligent”.

I remember the discussion when the Act came into effect. At best there was the realisation that things were about to become a lot tougher for Claimant solicitors to succeed in these type of cases. At worst this was yet another blow against Claimant practitioners which would be a gamechanger and make winning defective equipment cases impossible. However, it is a reality of PI litigation that Claimant solicitors adapt to what is thrown at them and do their best to get around any new rules. In doing so they are always going to exhibit a degree of creative thinking. In this instance they looked at past legislation to assist them.

Employer’s liability (Defective Equipment) Act 1969

This act is short and the key provisions are that:

• Where after the commencement of this Act:

1. An employee suffers personal injury in the course of his employment in consequence of a defect in equipment provided by his employer for the purposes of the employer’s business; and
2. The defect is attributable wholly or partly to the fault of a third party (whether identified or not),

The injury shall be deemed to be also attributable to negligence on the part of the employer………..

Claimant Solicitors looked this wording to see it they could keep strict liability alive. Quite clearly this Act provided a potential avenue to do so. Section 1(3) describes fault to mean, “negligence, breach of statutory duty or another act or omission which gives rise to liability in tort in England and Wales or which is wrongful and gives rise to liability in damages in Scotland”. Many Claimant Solicitors effectively believe that this Act means the effective survival of PUWER in a different form. However, is this correct?

There are differences in the statutory language used:

There is likely to be considerable argument over what amounts to equipment provided by the employer. However, the key argument is going to centre around how the Courts will treat the requirement for ‘fault’ on behalf of the third party. After all section 1(3) describes what fault actually is. They would not describe it if they intended the Act to impose strict liability. It is therefore wrong to believe that PUWER has survived under a different statutory mechanism……however, tempting that may be for Claimant Solicitors. Fault still has to be shown.

The Consumer Protection Act 1987 (CPA)

This Act has not been as widely discussed as the Defective Equipment Act but was imposed following the Product Liability Directive 85/374/EC which passed in July 1985 and does contain a wide range of safety regulations unaffected by ERRA. It does impose strict liability in respect of damage done by some defective products.

The meaning of a defect is laid out in section 3 which states, “the safety of the product is not such as persons are generally entitled to expect”. The Act has been interpreted in many differing ways. Famously there is nothing deficient in products which carry obvious risks as laid out in B (a Child) v McDonalds [2002] EWHC 490 (QB). This case found that boiling hot tea in polystyrene cups was not defective because customers liked their drinks like that and knew the risks posed. It is not enough for Claimant solicitors to show that the product failed and caused injury. Foster v Biosil Limited (2000) 59 BMLR 178 is authority for this. This case concerns the unexplained rupture of a breast implant.

However, importantly for Claimant Solicitors the Courts have been willing to accept proof of a deficiency in a product by drawing an inference. Divya v Toyo Tire and Rubber Co Ltd [2011] EWHC 1993 (QB) concerned a high speed tyre blowout which was unexplained. The judge in that case inferred that there must have been a manufacturing defect. The crucial feature of the CPA is that the burden of proof is on the Defendant. The most common defence is that the defect was not present in the product at the time of supply. Whilst the Claimant generally has to prove the defect – it is then for the Defendant to discharge this. They have a number of defences under section 4 including:

• Product not actually supplied to anyone
• Supplied not in the course of a business
• Defects arose subsequent to the relevant time (usually date of supply)
• Lack of scientific or technical knowledge (development risks)
• Defects in subsequent products (the component defence)

Emanations of State / Animal Cases

In relation to civil liability, the ERRA, does not sit well with the European directives from which the ‘six pack’ regulations derived. Section 69 of the 2013 act provides that the breach of health and safety regulations is not actionable, however EU directives will remain actionable against “emanations of the state”, including local authorities, government departments, police authorities and public health bodies.

In principle, this may entitle a public sector employee to sue his employer for breach of the appropriate European directive (even though he is prevented from suing that employer for breach of the domestic regulations brought in by virtue of those directives). This argument is likely to be tested.

It should also be noted that section 69 only removes civil liability for breaches of statutory duties arising from Regulations made under the Health and Safety at Work Act 1974. Hence, civil liability remains when arising from a different source – for example the Animals Act 1971.

Conclusion

The Claimant Solicitor should still establish liability where the reason for the failure of work equipment in known and identifiable. Defective maintenance, if proven, should be the responsibilities of the employer under their non delegable duty of care. Cases of identified manufacturing defects could also end up being paid for by the employer via the 1969 Act or under the CPA. The more difficult question is what happens in cases where the reasons for failure of equipment is unknown. Case law will determine this point and one suspects this will be determined on case by case basis. It will be interesting to see whether the Courts impose the burden of proving negligence on the part of the third party upon the employee, or whether they deem that the defect with the equipment creates a rebuttable presumption of fault on somebody’s part, with the burden of rebuttal resting with the employer.

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