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In all the excitement it is easy to forget how limited were the conclusions of the Löftstedt report. Far from wanting to tear up the book on health and safety, the Professor concluded,

“that, in general, there is no case for radically altering current health and safety legislation. The regulations place responsibilities primarily on those who create the risks, recognising that they are best placed to decide how to control them and allowing them to do so in a proportionate manner. There is a view across the board that the existing regulatory requirements are broadly right, and that regulation has a role to play in preventing injury and ill health in the workplace. Indeed, there is evidence to suggest that proportionate risk management can make good business sense.”

Löftstedt went on to say

“Meanwhile, there are cases where employees have been awarded compensation despite employers doing everything that is reasonably practicable and foreseeable. This is because certain regulations impose a strict liability on employers that makes them legally responsible for the damage and loss caused by their acts and omissions regardless of their culpability. This does not seem to be in line with the concept of ‘reasonably practicable’, nor is it clear that it is what was intended. As a result there is a need to reconsider the areas where health and safety regulation imposes strict liability.

I recommend therefore that the original intention of the pre-action protocol standard disclosure list is clarified and restated and that regulatory provisions which impose strict liability should be reviewed by June 2013 and either qualified with ‘reasonably practicable’ where strict liability is not absolutely necessary or amended to prevent civil liability from attaching to a breach of those provisions.”

So three points emerge from the report:

(a) the existing provisions broadly work;

(b) absolute liability imposed even where employers have done their best is not a good thing and that absolute obligations in the health and safety regulations should be watered down so that the employer will not be liable as long as it is culpable;

(c) if that can’t be done then civil liability should be removed in cases of absolute liability.

I will develop this point later.

It is worth pointing out that Löfstedt’s comments were restricted to such regulations as the famous or infamous (depending upon your point of view) Regulation 5 of the Provision and Use of Work Equipment Regulations 1998.

Extracts taken from: Reclaiming health and safety for all: An independent review of health and safety legislation. Professor Ragnar E Löfstedt. November 2011. Cm 82199.