From the 1st October 2013 there is no civil liability for breach of the Regulations made under the Health and Safety at Work Act. However the Regulations remain in force. An employer has a duty to comply with them. Failure to comply can lead to prosecution.
The central question we have to consider is what impact the existence of the Regulations has upon the court’s consideration of negligence.
Can the Regulations be ignored?
A claimant does not have to plead and argue a case based simply on allegations of negligence. The existence and relevance of the Regulations still needs to be pleaded because a claimant can still rely upon them in terms of considering allegations of negligence.
It is unlikely that the Regulations can simply be ignored by any court assessing both the nature of the duty of care an employer owes and whether that duty has been breached.
Firstly we have to consider the very definition of “negligence”. Consider the long-standing judgment of Alderson B in Blyth –v- Birmingham Waterworks Co (1856) 11 Esch 781 at 784:
“Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.”
Applying this simple test the relevance of the Regulations is clear.
Would a reasonable employer ignore statutory guidelines designed to ensure health and safety in circumstances where a breach is a criminal office?
GUIDANCE FROM PARLIAMENT
In Pepper (Inspector of Taxes) v Hart  UKHL 3 the House of Lords stated that the courts can consider Hansard, and Ministerial Statements in Particular when construing statutes:
It is illuminating, therefore, to read the statement of Minister Viscount Younger in the debate by the House of Lords on 22 April 2013:
“We acknowledge that this reform will involve changes in the way that health and safety-related claims for compensation are brought and run before the courts. However, to be clear and to avoid any misunderstanding that may have arisen, this measure does not undermine core health and safety standards. The Government are committed to maintaining and building on the UK’s strong health and safety record. The codified framework of requirements, responsibilities and duties placed on employers to protect their employees from harm are unchanged, and will remain relevant as evidence of the standards expected of employers in future civil claims for negligence”.
See the link to Hansard here
SO YOU STILL HAVE TO KNOW THE REGULATIONS
The Regulations, therefore, remain highly relevant to determination of evidence as to the standards applied. The next post will look at the relevance of the risk assessment and the central role this will continue to play in determining the standard of care.