THE SEVEN YEAR ITCH: A REVIEW OF THE CASES CONSIDERING SECTION 69 OF THE ENTERPRISE AND REGULATORY REFORM ACT 2013 (INCLUDING SCOTLAND)

It is today seven years since the ERRA ended breach of statutory duty as a distinct cause of action in relation to accidents at work.  This is an opportune time to review the cases that have considered this issue.  Here we look at cases in the English and Welsh courts and then review Scottish decisions where this has been mentioned.  This list may not be exhaustive. If anyone knows of additional cases I would be glad to hear.

ENGLAND & WALES

Johnson v University of Bristol [2017] EWCA Civ 2115
The first case to consider the effect of section 69 in the English & Welsh courts was Johnson v University of Bristol. This case involved an accident that took place on 4 February 2011 before the implementation of the Act. Nevertheless, it was noted that:
“[9]…the strict liability consequences of a breach of these regulations no longer applies to accidents that have taken place since the law was changed. The relevant changes in the law arose from the Enterprise and Regulatory Reform Act 2013, Section 69, and the regulations that have been made thereunder. This, of course, does not alter the validity, if it has validity, of the claimant’s claim, but it indicates that whatever may be said in this judgment about the civil consequences of these regulations no longer has any applicability to the circumstances of contemporaneous or future events.”
 
Cockerill v CXK Ltd [2018] EWHC 1155 (QB)
The first case to consider the effect of Section 69 on a claim involving an accident which occurred after its implementation was Cockerill. In this case, the accident occurred on the 1st October 2013, the date Section 69 came into force. It was stated that:
 
“[18] …In removing the claimant’s cause of action for breach of statutory duty, the 2013 Act did not repeal the duties themselves. Those duties continue to bind employers in law. So they continue to be relevant to the question of what an employer ought reasonably to do. However by enacting s.69, Parliament evidently intended to make a perceptible change in the legal relationship between employers and employees in this respect. It removed direct actionability by claimants from the enforcement mechanisms to which employers are subject in carrying out those statutory duties. What I have referred to as this ‘rebalancing’ intended by s.69 was evidently directed to ensuring that any breach of those duties would be actionable by claimants if, but only if, it also amounted to a breach of a duty of care owed to a particular claimant in any given circumstances; or in other words, if the breach was itself negligent. It is no longer enough to demonstrate a breach of the regulations. Not all breaches of the statutory regime will be negligent. Before the 2013 Act, the statutory regime had produced results in which employers were fixed with legal liability for accidents even where they had taken reasonable precautions against them. Stark v. Post Office [2000] EWCA Civ 64 became a well-known example. A component in a postman’s bicycle gave way even though the machine had been sensibly maintained and checked; the Post Office was held liable to the claimant even though it had not been negligent. Section 69 changed that framework, with a view to producing different results.”
Chisholm v D&R Hankins (Manea) Ltd [2018] EWHC 3407 (QB)
In this case, an employer was held liable for injuries that an employee sustained when he suffered an electric shock from overhead power lines. The judge noted that regulation 4(3) of the Electricity at Work Regulations 1989 was entirely consistent with the common law regulations, and that if the employer “[101] …had given sufficient thought to its statutory obligations then, in this respect, it would have complied with its common law duty of care”.
This case involved injury suffered by a member of the orchestra during the period of 2012-2013. Section 69 therefore did not apply, however it was briefly considered:
“[36] …in Baker v Quantum Clothing Group Ltd the Supreme Court reaffirmed (at paragraph 76) the rule laid down by the House of Lords in Nimmo v Alexander Cowan and Sons Ltd [1968] AC 107 that “if the workplace is unsafe, then the burden shifts to the employer to show that it was not reasonably practicable to make and keep it safe”; the same applies where it is shown that the employer is in prima facie breach of any other statutory duty subject to the defence of taking all reasonably practicable steps to avoid a breach. (Whether any of this has been changed by section 69 of the Enterprise and Regulatory Reform Act 2013, and if so to what extent, remains to be seen, but the Act does not apply to the present case).”
 
Palmer v Perrins Hill Partnership [2019] 4 WLUK 542
In Palmer it was reemphasised that for accidents that occur after 1st October 2013, simply proving breach of a regulation is not enough:
“[15] Section 69 of the Enterprise and Regulatory Reform Act 2013 came into force on 1 October 2013. In consequence, Mr Palmer cannot rely on breach of statutory duty alone. Rather, he must allege and prove negligence on the part of the Partnership.”
James v White Lion Hotel [2020] 1 WLUK 39
In this case, Judge Cotter QC referred to paragraph 18 of Cockerill v (1) CXK Ltd (2) Artwise Community Partnership [2018] EWHC 1155 which is cited above. He also referred to the case of Tonkins v Tapp [2018] 12 WLUK 716 in which a different conclusion (obiter) on Section 69 was reached:
“..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.”
After referring to both judgments, he came to the conclusion that:
“[95] In the present case I do not have to resolve the issue raised in these two Judgments. It seems to me that the example given by Rowena Collins Rice of Stark v. Post Office [2000] EWCA Civ 64 may well provide circumstances where civil liability may no longer follow a breach of regulations. However, in other cases liability must surely still follow breach of the regulations, “ipso facto”.”
Jagger v Holland [2020] EWHC 46 (QB)
In the recent case of Jagger, the judge stated that the Regulations inform the common law duty of care:
“[163] …It should be noted that in any event a breach of CDMR gives rise to no civil right of action for breach of a duty under CDMR [see section 69 of the Enterprise & Regulatory Reform Act 2013] but he conceded that the Regulations and the guidance issued thereunder inform the duty of care owed at Common Law.”

Harris v Bartrums Haulage and Storage Ltd [2020] EWHC 900 (QB)

This is the most recent case to consider Section 69 in the English and Welsh courts. In this case, the claimant was unsuccessful in establishing negligence by his employer and was held to be the author of his own misfortune. It was again noted that:
[58] …a breach of statutory duty no longer gives rise to a direct cause of action and that the cause of action is for a common law breach of duty to take reasonable care”

SCOTLAND

The first case to consider the impact of s.69 of the 2013 Act was a Scottish case involving an accident at work. The judge supported the argument that:
[14] “…employers remain under a statutory duty to comply with health and safety regulations, as the duties set out in statutory instruments made prior to the 2013 Act inform and may define the scope of duties at common law…an employer who breached a regulation and was thereby committing an offence could hardly argue that he was acting reasonably…the existence of a regulation demonstrates that harm is foreseeable…under reference to the case of Hide v Steeplechase Co (Cheltenham) Ltd [2013] EWCA Civ 545 that if a regulation applied, then an employer may still avoid liability if what happened was due to unusual and unforeseen circumstances beyond the employer’s control; or if the cause was some exceptional event the consequence of which could not have been avoided despite the exercise of all due care. Otherwise an employer was liable for injury caused by foreseeable risk.”
Section 69 was then briefly considered by the Supreme Court in Kennedy. In this case, an employer was in breach of the Management of Health and Safety at Work Regulations 1999 reg.3(1) and the Personal Protective Equipment at Work Regulations 1992 reg.4(1). The accident occurred on 18th December 2010 and therefore breach of the regulations gave the claimant a right to damages:
“88. In relation to civil liability, section 47(2) of the 1974 Act provided at the relevant time, prior to its amendment by section 69 of the Enterprise and Regulatory Reform Act 2013, that breach of a duty imposed by health and safety regulations (ie regulations made under section 15) “shall, so far as it causes damage, be actionable except in so far as the regulations provide otherwise.””
This was another case where the accident occurred before Section 69 came into effect, as the date of the accident was 4th June 2013:
“[14] The pursuer relies primarily on alleged breaches of regulations 12(1), 12(2) and 12(3) of the Workplace (Health, Safety and Welfare) Regulations 1992 (“the Regulations”). (For completeness, I note that the accident occurred before the coming into effect of section 69 of the Enterprise and Regulatory Reform Act 2013 and which concerns accidents occurring on or after 1 October 2013.) In submissions, the pursuer abandoned the case under the Manual Handling Operations Regulations 1992. It was accepted that the case at common law added nothing to the pursuer’s case and it would stand or fall upon the determination of the pursuer’s case under the Regulations.”
Cullen v Scan Building Services Ltd 2018 S.L.T. (Sh Ct) 189
Here the judge highlighted that Section 69 has made it more difficult to establish liability:
“[10] The legal basis of the case was an alleged breach of the defenders’ common law duties. Cases of this type had been rendered more difficult by the change in the law brought about by section 69 of the Enterprise and Regulatory Reform Act 2013.”
Cassells v Allan [2019] CSOH 14
Here, the judge supports the approach to Section 69 that was set out in Cockerill (see above) and stated “[176] …Not all breaches of the statutory regime would be negligent.”
Dehenes v T Bourne and Son 2019 S.L.T. (Sh Ct) 219
Similar to the approach taken in Jagger (see above), it was stated that:
 “[10]… in considering the scope and standard of duty of care owed, and whether that duty is breached, it is relevant to consider, in the exercise of assessing the defender’s duty to take reasonable care towards the pursuer as their employee, the defender’s obligations under the regulations which they still require to comply with as a matter of law. A breach could result in criminal proceedings. The duties set out in statutory instruments made prior to the 2013 Act inform and may define the scope of duties at common law. The existence of a regulation demonstrates that harm is foreseeable. An employer could hardly be in breach of a duty imposed under a regulation and still argue that he had taken reasonable care for the safety of his employees. Employers are bound to know their statutory duty and to take all reasonable steps to prevent their employees from committing breaches. Existence of a statutory duty may be regarded as evidence of the state of knowledge of a reasonable (i.e. non-negligent) employer as regards a particular risk. It would seem difficult for an employer to argue that it had acted reasonably whilst at the same time being guilty of a crime for having fallen below the standards set by Parliament for the protection of the health and safety of employees. If regulations are applicable to the factual situation of the case, they may very well be useful in assessing the nature and scope of a defender’s duties at common law. The pursuer submitted that the analysis set out in the authorities to which reference was made in his submissions, including the text books referred to, is correct and that, in considering what the duty of care consists of, considerable weight must be attached to the defender’s ongoing duties under the statutory regulations (in this case the 1992 Regulations). The state of knowledge which has built up amongst employers over the last few decades as regards health and safety is also important to consider. This includes the concept of carrying out a suitable and sufficient risk assessment.
 
[24] I agree with and accept the pursuer’s analysis of the legal position…”
King v Common Thread Ltd [2019] 8 WLUK 123
In this case, emphasis was placed on the specific facts of the case:
 
“…[98] When considering the effect of section 69 of the 2013 Act the authorities are consistent that any liability is dependent upon the precise circumstances of the case under consideration. The pursuer accepted the court must have regard to the context of the accident.”
Sharp v Scottish Ministers [2019] 11 WLUK 259
This Scottish case took as similar approach to Section 69 as that in Dehenes (see above), stating that the regulations inform the decision as to whether there has been a common law breach of duty:
“[42] As to the applicability of the regulations, as a result of section 69 of the 2013 Act, a claim cannot be made in damages solely, and as a direct breach, of health and safety regulations. A claim for damages can, now, only be founded upon an employer’s breach of their duty to take reasonable care. However, the standard of reasonable care is set and informed by those same regulations…”
Birch v George McPhie & Son Ltd 2020 S.L.T. (Sh Ct) 93
In Birch, the most recent Scottish case to consider Section 69, a labourer brought an action for damages against his employer for a scalding injury sustained during the course of his employment. It was noted that although Section 69 meant that a breach of regulations alone was not enough for a cause of action,  “[11] That change in the law did nothing to dilute importance of risk assessment in considering whether an employer had exercised its common law duty of care for its employees.”