Section 47 HSWA 1974 removes the right to bring a claim for breach of statutory duty in respect of health and safety regulations.
Does that mean that the domestic regulations are no longer worth the paper on which they are printed ?
It is true that injured workers will no longer be able to rely directly upon the regulations. Instead they will have to show that the employer was guilty of negligence.
But the regulations will still be of some assistance to an injured worker.
In this piece I deal with what lawyers call ‘foreseeability’: ie what could have been predicted by the employer in advance of the accident.
Here, the regulations might prove useful in respect of:
- an employer’s actual knowledge of a danger;
- an employer’s constructive knowledge of a danger; or
- the possibility of a danger being highlighted by the wording of the regulations.
The existence of the regulations may show that the employer knew that the risk covered by a regulation was a danger and therefore ought to have done something to avoid that risk.
But what if the employer were to say that it didn’t know about the regulations so it did not know about the danger.?
In those circumstances the courts can say that an employer has constructive knowledge, that is to say that an employer will be treated as if he did know. The rationale for this is simple- the employer should have known and so he will be treated as if he had known.
Highlighting a danger
Even if an employer might not have full knowledge of danger, the regulations might highlight that there was some sort of danger which the employer ought to have thought about.