BREACH OF REGULATIONS IS IPSO FACTO NEGLIGENT: HIGH COURT JUDGMENT ON s.69 OF THE ERRA

I am grateful to Colm Nugent for sending me a copy of the judgment of HH Gore QC (sitting as a High Court judge) in Tonkins -v- Tapp  (7th December 2018).   The judgment deals with the issue of the relevance of the health and safety directives. This judgment does not accept the rationale in the previous case on the subject and the judge is clear in his view that breach of the statutory duties constitutes, ipso facto, negligence.  A copy of the judgment is available here. Tonkins v Tapp.judgment

“That cannot have been Parliamentary intention in 2012, for if that had been the intention, Parliament would instead have chosen to repeal the statutory duties in question. Ms Rice does identify that in [18] of her judgment but, with respect to her, I do not understand how it can be said in neighbouring sentences that, on the one hand, those statutory duties bind employers in law and continue to be relevant to the question of what an employer ought reasonably to do while, on the other hand, were evidently intended to make a perceptible change in the legal relationship between employers and employees. Those concepts seem to me to be mutually inconsistent.”

THE CASE

The claimant fell from a tower scaffold.  The judge found that the accident was solely due to the claimant’s own decision to take care of his own safety.   The judge went on to make observations about the effect of section 69 of the Enterprise and Regulatory Reform Act. That Act stops an action for breach of duty being brought on the basis of breach of health and safety Regulations governing health and safety at work.  However the Act did not abolish the Regulations. They remain in force. Breach of the Regulations can be a criminal act.  The question of how relevant the Regulations are to an action for negligence.

THE JUDGMENT ON THOSE ISSUES

The judge made factual findings adverse to the claimant. He then considered the issue of the remaining relevance of the Regulations and the impact of Section 60.

103. Also in those circumstances it is unnecessary for me to decide the unresolved issue of whether breach of a statutory duty rendered non-actionable by Section 69 of the Enterprise and Regulatory Reform Act nonetheless constitutes negligence ipso facto.

Bearing in mind that what I believe was a line of authority dealing with the analogous issue of whether breach of statutory duty in the days before statutory duties were ever civilly actionable, constituted common law negligence, none of which was cited to me or discussed, as opposed to merely being referred to by Ms Rice, sitting as a Deputy High Court Judge in Cockerill v CXK Ltd [2018] EWHC 1155, which decision is persuasive but not binding upon me, I choose not to follow it and express my concern that the danger of producing the contrary result would be to emasculate the statutory duties.

104. That cannot have been Parliamentary intention in 2012, for if that had been the intention, Parliament would instead have chosen to repeal the statutory duties in question. Ms Rice does identify that in [18] of her judgment but, with respect to her, I do not understand how it can be said in neighbouring sentences that, on the one hand, those statutory duties bind employers in law and continue to be relevant to the question of what an employer ought reasonably to do while, on the other hand, were evidently intended to make a perceptible change in the legal relationship between employers and employees. Those concepts seem to me to be mutually inconsistent.

105. It seems to me to be no answer to that argument to say that Parliament could not do so because many, if not now most, of the statutory duties had their origin in EU law which the UK was obliged to implement. That begs the similarly unanswered question of whether to deprive the statutory duties of civil actionability would have constituted a breach of EU law for failure to implement EU directive intent. I accept that that is not the Claimant’s pleaded case in this case but, had it been necessary to fully argue and determine this point, it might have become his pleaded case by amendment, which amendment would not have been said to have caused any evidential prejudice to the Defendant despite having been made very late.

106. Accordingly, I would not have been prepared to find, without much more analysis and argument, that the effect of Section 69 was to deprive an accident victim of entitlement to rely upon a finding that breach of statutory duty constituted ipso facto negligence as constituting breach of the scope and standard of care reasonably required of the alleged tortfeasor by the statutory duty even if no civil right of action was available for its breach.