UK moves to abolish strict civil liability for statutory breaches

Workers’ rights and legislation can sometimes butt heads, as an example taken in the United Kingdom (UK) and local context shows.

Health and safety has been a matter of concern in the UK for a long time.

Under the Labour Government, after 1997, an unprecedented number of new regulations were introduced.

The Conservatives indicated that they would reform health and safety as indicated in their Regulation in the Post-Bureaucratic Age, October 2009, which was emphasised by David Cameron, MP, in December 2009.

In March 2011, the Minister for Employment in the Department for Work and Pensions asked Professor Löfstedt to chair an independent review of the health and safety legislation in the UK.

In May 2011 the commission issued a call for evidence and in November 2011, Prof Löfsted issued his report entitled: Reclaiming health and safety for all: An independent review of health and safety legislation.

From start to finish this was a remarkably short period of time, but if the report is examined it becomes clear why this is not surprising. In the foreword he emphasises: “I have concluded that, in general, there is no case for radically altering the current health and safety legislation.” In short, he argues for the maintenance of the status quo. However, towards the end of his report he deals with the issue of strict civil liability imposed for a statutory breach.

What this means can be explained in terms of a case he uses to illustrate the problem; the case of Stark v Post Office (2000). Stark was a 60 year-old postman who was supplied with a bicycle. In the course of his employment, while riding the bicycle the front wheel suddenly locked and he was propelled over the handlebars and suffered serious injury. It is accepted that any defect in the bicycle which caused the accident could not have been discovered by any routine inspection. Indeed it could not even be discovered by a rigorous examination.

Now, as a general rule, when an employee is injured at work, the injured employee is entitled to workers’ compensation benefits. The UK does not have a separate workers’ compensation Act. These benefits are independent of fault. In the UK employees can receive common-law damages which are separately insured in terms of an Employers’ Liability policy.

To get these damages, fault has to be shown. Case law has developed which has the practical outcome that if a statute is breached, then the employee is entitled to compensation.  Since the defect in the bicycle could not be detected by the Post Office, awarding civil damages under these circumstances is, in reality, another form of strict liability. This converts the civil law system into a workers’ compensation system.

The High Court ruled accordingly that the regulation was not breached if the employer took reasonable steps to discharge the statutory obligations. The particular regulation said nothing about bicycles – it was of a general nature. The High Court ruled that the Post Office had indeed taken reasonable steps and was accordingly not liable for civil damages.

The Court of Appeal took a different view; if the regulation is breached, it is breached, and if so the employee is entitled to civil damages.

Professor Löfstedt recommended that regulations which impose strict liability should be reviewed by June 2013, to accept a reasonably practicable standard instead of the strict liability standard. It should thus be clear that in the UK the breach of a statute has developed into a separate Tort distinct from the Tort of Negligence.

In late 2012, the House of Commons considered the Enterprises and Regulatory Reform Bill and voted in favour of a clause to amend the Health and Safety at Work Act so as to remove strict liability for the breach of a statutory duty, with 295 votes in favour and 215 against. Clearly there was a division in the Commons.

The Bill was sent to the House of Lords where the Lords voted against the change proposed in civil liability. Accordingly the Bill had to be sent back to the House of Commons. Lawyers were delighted with the rejection by the Lords, as one firm of solicitors put it: “We are delighted that the House of Lords voted to reject the government proposals.”

The Commons did not change its position and the Bill was sent back to the Lords on the April 22, 2013, where it was passed. The Bill received Royal assent on April 25, 2013. Think Left decried the development as setting back workers’ rights 114 years.

South Africa

In the light of the UK developments it is useful to summarise the position in South Africa (SA). As previously pointed out Workers’ Compensation and Employer’s civil liability are dealt with holistically in terms of SA’s workers’ compensation legislation, the Compensation for Occupational Injuries and Diseases Act (COID).

Workers’ compensation is provided on a no-fault basis, essentially, in insurance terms, on a Personal Accident basis. The Act continues to deal with civil liability in terms of Section 56, which provides for additional compensation if a limited form of negligence is proven. So instead of having two systems, workers’ compensation and insured civil liability sensibility, the SA Act incorporates both – a very sensible arrangement.

Civil liablity for a breach of a statutory duty in SA law is clear. It was set out by Professor RG McKerron in his book Law of Delict, seventh edition in chapter 16. McKerron was the leading writer on the subject until his death in mid 1970s. The position he sets out was derived from the UK law.

The fact that today UK case law has introduced strict liability is an indication of the extent to which the UK law has changed. Our courts often rely on UK law so it is worth setting out the position in SA law.

Civil claims by employees are rare in SA because of Section 35 of COID which prohibits civil actions against employers. In SA law there is no strict liability for the breach of a statutory provision. The common law requirement is negligence; there is no back door which imposes liability for the breach of a statutory provision.

Where a person attempts to claim compensation because of a breach, the person must prove five things:

1. It was the intention of the statute that the breach should lead to a cause of action;

2. The person claiming compensation is a person that the statute intended should be able to sue;

3. The damage claimed was the kind of damage contemplated by the statute;

4. The defendant’s conduct constituted a breach of the duty imposed by the statute;

5. The breach caused or materially contributed to the damage.

As indicated, the basis of civil liability in SA law is usually negligence. Negligence often rests on the allegation that the defendant failed to do what a reasonable person would do under the specific circumstances. A statute may give a clue as to what a reasonable person would do to avoid the injury. The breach of the statutory duty is not per se negligence but may be relevant to infer negligence.

If the SA position is understood and contrasted with the UK position, then it becomes clear that the UK position is moving closer to the SA position.

Putting it another way; the UK has not instituted a reform of its law but the restoration to the original position as was set out by Professor McKerron. If Stark v Post Office were to take place in this country the South African courts would probably come to the same conclusion the UK High Court came to, but not the Court of Appeal.

Legally Speaking is a regular column by Albert Mushai and Hugh-David Hutcheson, both in the school of Economics and Business Sciences, University of the Witwatersrand. Mushai holds a master’s degree from the City University, London, and was the head of the insurance department at the National University of Science and Technology in Zimbabwe before joining Wits University as a lecturer in insurance. Hutcheson holds a PhD from Wits and is a lecturer in insurance.