Ben Posford writes for The Times on workplace injury changes to the law13 Aug 2019 | Ben Posford
Ben Posford, Head of Catastrophic Injury at Osbornes, wrote the following article which appeared in The Times Online Law Section on 5th September 2013:
Work Injuries: breach still criminal offence
Employers should not relax about health and safety after October – a duty to take care to avoid injuring is still needed
From next month the law on injuries in the workplace will change. Under the Enterprise and Regulatory Reform Act injured employees will have to prove that their employer has been negligent, rather than simply in breach of health and safety regulations, to succeed in a civil claim for compensation.
What seems to be less well-publicised is that a breach of these regulations will remain a criminal offence, which if proven against an employer ought to be more than sufficient to found a claim in negligence.
Lord Atkin said as much in 1934 (Lochgelly Iron & Coal Co Ltd v M’Mullan), in what will remain a binding decision on the courts after October: “All that is necessary to show is a duty to take care to avoid injuring; and if the particular care to be taken is prescribed by statute, and the duty to the injured person to take care is likewise imposed by statute, and the breach is proved, all the essentials of negligence are present. I cannot think that the true position is, as appears to be suggested, that in such cases negligence only exists where the tribunal of fact agrees with the Legislature that the precaution is one that ought to be taken. The very object of the legislation is to put that particular precaution beyond controversy.”
Over recent years the number of workplace deaths have fallen, thanks to better observance of health and safety regulations. The false sense of security, or impunity, felt by some employers when the law changes could reverse this trend, necessitating more convictions for corporate manslaughter or even individual custodial sentences for gross negligence manslaughter.
Thus far the Corporate Manslaughter and Corporate Homicide Act has been a real disappointment, seeing only three convictions in five years. The Act was watered down on its passage through Parliament so the penalties are really no more than a fine. While the court can order a business to carry a notification of any conviction on its letterhead, the reality is that it takes so long to investigate these cases that the companies invariably dissolve.
A greater emphasis on prosecuting for gross negligence manslaughter is the only answer because despite the Government’s intention in changing the law, its effect on civil claims may be fairly limited but will be disastrous for many families if the fatality rates rise.
A high-profile custodial sentence will be required to challenge the dangerous message from the Government that employers can relax about health and safety after October.