Principles developed by the courts
Case law interpretation
Case law interpretation has had an adverse effect on some safety legislation. A notorious example is the fencing requirements for dangerous machinery (then s.14 FA), as illustrated by, for example, Close v. Steel Company of Wales. With reluctance judges interpreted the statute so that s.14 could not be used where parts of the machine or of the material being worked on have been ejected at a workman. This interpretation has now been remedied by reg. 12(3) of PUWER.
Such interpretations affect the scope of legislation, and of civil action for breach of statutory duty. Breach of statutory duty and the tort of negligence are the two most frequent grounds for civil claims following accidents at work.
Tort of negligence
Negligence is a relatively modern tort, but today it is probably the most important in the number of cases and for the amount of damages which may be awarded for serious injury.
The tort consists of a breach by the defendant of a legal duty to take care not to damage the plaintiff or his property and consequent damage from that breach. From early times common law has placed on the employer duties towards his employees. In 1932, Lord Atkin, in the leading case of McAlister (or Donoghue) v. Stevenson suggested a general test for when a duty is owed. It is owed to persons whom one ought reasonably to have in mind as being affected by the particular behaviour. In 1963 the persuasive precedent of Hedley Byrne v. Heller & Partners extended the duty to include financial loss resulting from some careless statements.
Tort of breach of statutory duty
When a statutory duty is broken there is liability for penalty stipulated in the statute. In addition a person suffering damage from the breach may sometimes bring a civil action in tort to obtain compensation. Sometimes the Act specifies this (for example, the Consumer Protection Act 1987). Sometimes the act is silent but the courts allow the action, as happened with FA and related regulations; the Act is silent but the courts deny a civil action. This happened with the Food and Drugs Act 1955 (which has now been consolidated with other enactments relating to food into the Food Safety Act 1990) when it was decided that the statute was not intended to add to a buyer's civil remedies for breach of contract or negligence.
Section 47 of the HSW provided that breach of the Act will not give rise to a civil action, but breach of any regulation made under the Act is actionable, unless the regulations say otherwise. So far the only regulations to provide otherwise are the MHSW.
Negligence and breach of statutory duty are two different torts, but both may be relevant following an incident. Betty, injured at work because of an obstruction of the factory floor, might allege negligence plus breach of regulation 12 of the Workplace (Health, Safety and Welfare) Regulations 1992 (WSHW), and possibly succeed in both torts. She would not recover double damages because the remedy is compensation for the actual loss suffered.
The fact that an accident has occurred and resulted in legal action being taken is unsatisfactory. An award cannot repair an injury; the outcome of an action is uncertain; and the considerable cost and ingenuity expended in the investigation, developing the pleadings and the trial itself, could have been used more positively in trying to avoid such accidents. Such avoidance is an objective of HSW; and of the EC Directives, which are having increasing importance.
This page is sponsored by Professional Health and Safety Consultants Ltd. Phone Internationally: +44 2087787838 or UK London 020 8778 7838 for all your health and safety requirements.