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The Government’s response to Professor Löftstedt’s report is worth studying. It said,

“…The Health and Safety at Work etc Act 1974 is underpinned by the principle of ‘reasonable practicability’, which weighs a risk against the trouble, time and money needed to control it. This allows employers and other dutyholders to exercise judgement on the actions that they should take to meet their responsibilities. The ACoPs support these judgements by providing guidance on the types of action that would be considered reasonable.

In some health and safety regulations, including those arising from EU law, the duty imposed on the employer is a strict one and no defence of having done all that is reasonably practicable is available. This does not give rise to problems in enforcing criminal liability under the regulations because HSE’s enforcement policy allows discretion as to whether to prosecute in individual cases. However, in the civil sphere it does have the potential to impact unfairly. Civil liability follows as a result of the breach of duties in health and safety regulations and strict liability duties impose a higher standard than the employer’s common law duty of care.

The Government recognises the unfairness which results where an employer is found liable to pay damages to an injured employee despite having taken all reasonable steps to protect their employees from harm. The Government will look at ways to redress the balance, in particular preventing civil liability from attaching to a breach of such provisions.”

The point arising from this is that the Government’s response was expressly confined to issues of strict liability (absolute liability) and one would therefore a well confined approach to the drafting of  any qualifications to be made under s 69 Enterprise etc Act 2013.

Extract from: The Government Response to the Loftstedt Report published November 2011 Department for Work and Pensions  ISBN 978-1-84947-915-8