Breach Birth


In the UK, as in many jurisdictions, there exists the Civil Law concept of individuals seeking compensation for injuries caused (at least partly) by others. In terms of health and safety at work, the typical scenario is when an employee is injured due to some work activity controlled by the employer. There are several types of legal action for compensation open to the injured employee. They will usually at least pursue an action for Negligence. However, if the injury was in some way connected with a breach of a statutory duty (i.e. imposed by legislation) by the employer, then a second avenue may also be possible. This, as you might have guessed, goes by the unimaginative name of the tort of breach of statutory duty (BoSD). BoSD is, in some respects similar to negligence. Indeed, in some countries, breaching a legislative duty is taken as tantamount to negligence. However, a noticeable difference in the UK is that the duty on the employer arises from statute rather than the common law. That means that correct interpretation of the intention of the legislation is extremely important. Special people (called Judges) do this for a living, receiving substantially more than the minimum wage for their troubles.

Some legislation specifically excludes BoSD as actionable, others allow it and yet others say nothing. Until recently, there has been an assumption that BoSD is generally actionable (unless otherwise stated) in health and safety cases. The provision for BoSD was enshrined in section 47 of the Health and Safety at Work etc Act 1974 (HSW). This is no longer the case. The House of Lords has been quite put out by this and will no doubt resort to fasting in between lavish lunches as a formal protest.

Section 69 (in Part 5) of the Enterprise and Regulatory Reform Act 2013 amends HSW to reverse this presumption. So now, unless specific regulations allow it, BoSD is no longer actionable in such cases. This does not affect the ability to pursue a claim for negligence and nor does it affect historical cases. The reason this was changed is allegedly down to employers being too easily targeted by a claims culture and, as a result, fearful of such claims, feeling they have to go way beyond the requirements of the law. The existence of such a culture has been largely debunked as purely perception rather than reality, but this has not derailed the actions of Parliament. Clearly, there is the perception that having both Negligence and BoSD routes makes life too easy for the claimant, encouraging more claims. But the opposite side also hold the view that genuine cases may find it more difficult. I assume they do realise that the law was never meant to be fair…..