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In its 2013 Consultation on the implementation of Section 69 Enterprise etc Act 2013 the HSE said the following

“Section 69 ERRA fulfils the Government’s commitment in respect of strict duties by amending section 47(2) of the Health and Safety at Work etc Act 1974 (HSWA) with the effect that there will be no right to bring a claim for breach of statutory duty in relation to breaches of health and safety regulations.  In future claimants will only be able to bring claims in negligence. “

This is not what s 69 says. The section says that breaches will be actionable if regulations provide for it. I think that the HSE is being loose in its language here. I suspect that by ‘in negligence’ it means ‘where there is culpability or fault’. This would cover situations where

(a) a regulation specifies what the fault is; or

(b) the regulations made under s 69 give birth to a defence of ‘reasonable practicability’ in situations where there would previously have been strict liability.

That this is probably the case is shown by what the HSE says next,

“This approach addresses the potential unfairness identified by Professor Löfstedt by ensuring that duty holders, usually an employer, will always have the opportunity to defend themselves on the basis of having taken reasonable steps to avoid, or reduce, the risk of accidents.

It is planned to bring section 69 ERRA into force on the 1 October 2013 common commencement date.”

The HSE then went on to talk about pregnant workers.

“Exception for pregnant workers

In order to bring section 69 into force it is necessary to make an exception to the policy for pregnant workers in respect of rights derived from the Pregnant Workers Directive (EEC 92/85 as amended).   This would mean a pregnant worker would continue, as now, to have the right to bring a claim for breach of statutory duty for breaches of obligations imposed by this Directive in addition to any other right of action she may have.

The exception for pregnant workers is required to ensure the ongoing correct transposition of the relevant Directive.  This is because Article 12 of the Pregnant Workers Directive requires member States to enable workers who believe they have been wronged by a failure to comply with duties in that Directive to enforce their rights.  There is no such explicit requirement in other health and safety directives and hence no further exceptions are proposed.

Because the proposed exception for pregnant workers maintains the current position in relation to civil liability for this group of workers it does not give rise to any additional costs to business. “

No suggestion here that the Pregnant Workers’ Directive might confer much needed benefits upon pregnant workers.

Two points emerge from this:

(a) on balance, despite some very loose language,the HSE appears to think that s 69 is supposed to bite on strict liability cases only – there is no suggestion of there being a wider impact. Time will tell!;

(b) the HSE is aware of the need to ensure the transposition of EU Directives into domestic law. In short where the EU Directives require there to be liability then there will still be liability. This is an extremely important point and one to which I will return later.