Jason Burt - The Association of Insurance Surveyors Limited

Liability Update Jason Burt Partner, Plexus Law Monday 28th April 2014

Content • Case Law Update • General Health & Safety Update • HSE: Fees for Intervention

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Wilkin-Shaw v Kingsley School Bideford C.A. 2013 • Pupil drowns whilst practising to participate 10 Tors event • Supervising teacher missed checkpoint shortly before incident • Scout Master, unconnected with group intervened and offered assistance

Wilkin-Shaw v Kingsley School Bideford C.A. 2013 • Although supervising teacher was not specifically qualified, his experience was suitable/sufficient • Participants appropriately instructed on how to proceed.

• Teacher’s failure to arrive at the checkpoint on time was negligent but not causative. • The intervention of the third party was unforeseeable and broke the chain of causation.

Uren v Corporate Leisure (UK) Limited and MoD • Claimant was employed by MoD and was attending a “health and fun day” at an RAF base • MoD engaged independent contractors to supply equipment and run the events • Whilst participating in an “it’s a knock-out” type race he entered a shallow pool filled with water head first, sustaining severe spinal injuries • Participants not provided with a any instructions on how to negotiate the course

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Uren v Corporate Leisure (UK) Limited and MoD(2) An employer has a non delegable duty to undertake a suitable and sufficient risk assessment The Judge’s conclusion that game as played carried only a small risk of serious injury was untenable The contractor’s risk assessment unsuitable

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Risk v Rose Bruford College 2013 • The defendant’s Student Union held an annual “Events Day” on the defendant’s premises • One activity available to the students use was an inflatable pool filled with water • The claimant sustained serious neck injuries whilst attempting to dive into the pool

Risk v Rose Bruford College 2013(2) • Although defendant owed the claimant a duty of care under OLA 57, it did not have a duty to protect him against an injury he incurred by diving headfirst into the pool • Claimant had created an obvious and serious risk which would not have otherwise have existed • “I think it will be extremely rare for an occupier of land to be under a duty to prevent people from taking risks which are apparent in the activities they freely choose to undertake”

Woodland v Essex County Council 2013 SC

The defendants school engaged contractors to supervise swimming lessons during school time A pupil attending the lesson got into difficulties and was discovered “hanging vertically in the water” The pupil was resuscitated but suffered serious brain injury

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Woodland v Essex County Council (2) The LEA had a non delegable duty of care to ensure that reasonable care was taken to ensure the safety of pupils

The lesson supervision and lifeguarding arrangements were negligently performed The negligence occurred in the course of the very functions which the school assumed an obligation to perform and delegated to its contractors. It had to follow that if the latter were negligent in performing those functions, the LEA was in breach of duty

Yates v National Trust 2014 • The defendant engaged contactors to take down a diseased tree in its parklands

• The contractors had previously undertaken various operations for the defendants without difficulties or problems arising • The claimant was employed by the contractor and fell approximately 50 feet sustaining serious spinal injuries

Yates v National Trust 2014 (2) •

Whilst the Work at Height Regulations imposed a duty on non employers to take care of those working at height on their premises, the extent of that duty was dependent upon exercising control over the worker

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It was too onerous to extend that duty to contractors’ employees or subcontractors

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There was no obligation on the defendant to ensure that the claimant was covered by insurance where public liability cover was in place

Health and Safety Update Enterprise and Regulatory Reform Act 2013 Section 69 reverses Section 47(2) of the Health and Safety at Work Act 1974

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Breach of a duty imposed by statutory instrument containing (whether alone or with some other provisions) Health and Safety Regulations shall not be actionable except to the extent that regulation under this section so provide

Section 69 became law on the 1st October 2013

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Health and Safety Update What does this mean? • An injured person will not be able to rely on breaches of statutory duty in a civil claim for compensation unless there are specific statutory exemptions enabled permitting such reliance • Interesting contradiction – a claimant seeking compensation for what may have been a criminal offence on the part of the proposed defendant cannot now rely upon the same breach of statutory duty for the purposes of a civil claim

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Government’s rationale •

Unfairness that an employer can be liable despite having taken all reasonable steps to protect an employee

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Prof Lofstedt – “Reclaiming Health & Safety for All” (Nov 2011) I.

Inability to defend against strict liability regulations fuels perception of a compensation culture

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Fear of being sued drives businesses to over comply with regulations

III. Red tape increases costs IV. Revoke strict liability regulations only •

The Enterprise Act goes much further than Lofstedt’s recommendations

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Health and Safety Update How might claimants respond? • Employers Liability (defective equipment) Act 1969 – does not confirm a civil cause of action but invalidates any attempt to defend a negligence claim by saying that the defect is attributable to a fault of a third party • Alleged that breaches of health and safety regulations should be seen as evidence of negligence on the part of the defendant

• Public Sector employees – argue that s.69 ERRA does not apply in relation to claims brought under the regulations implemented by European Law on the basis of the doctrine of “Direct Effect”

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HSE – Fees for intervention • The Health and Safety (Fees Regulations) 2012 • Became effective 1st October 2012 • Permits HSE to recover its costs by charging a fee for the time and effort it spends investigating and taking enforcement action against breaches of health and safety laws

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HSE Why introduced?

• Officially: FFI will encourage businesses to comply in the first place or put matters right quickly when they don’t. It will also discourage businesses who think they can undercut their competitors by not complying with the law and putting people at risk • Unofficially: During the first six months following introduction, HSE raised 5,766 invoices claiming £2,673,773.00

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HSE Expectations • It was anticipated that during the first 12 months following introduction, invoices raised would generate fees totalling £37M • Expect an increase in interventions going forward

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HSE – Charges • The FFI can only be levied in respect of a “material breach” • Material breach – is when, in the opinion of the HSE inspector, there is or has been a contravention of health and safety law that requires them to issue notice in writing of that opinion to the duty holder • The inspector will record the time he/she has taken to deal with the material breach and thereafter multiply the same by the FFI hourly rate

• If there are multiple duty holders party to the investigations, then each will be responsible for the time that has been incurred in relation to their element of the investigation and charged independently

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HSE – Challenging the invoice

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If you disagree with the invoice because you do not believe you are in material breach of the law or that the amount of the fee charged is incorrect, you can raise a “Query” within 21 days of the date of the invoice

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If you disagree with HSE’s reply to your query, you can raise a “Dispute” in writing within 21 days of the date of the HSE’s response

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You will have to pay HSE’s time for handling your dispute at the FFI hourly rate

HSE – Implications of payment • Potential admission of criminal breach of duty which may be used against you in any subsequent prosecution • Evidence of negligence (by failing to comply with Health and Safety legislation) which may be used in a civil claim for damages • Loss of insurance cover?

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HSE Enforcement Appetite • In 2012, an FIA request confirmed a 400% increase in prosecutions of directions and other senior managers pursuant to s.37HSWA74 • In 2012, there was a 40% increase in corporate manslaughter investigations – further significant increases expected for 2013 and thereafter • SSI revenue expectations

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