The Enterprise and Regulatory Reforms Act 2013 makes major changes to the way that claimants, in particular, have to approach accidents at work. This post outlines the change and looks, in particular, at the need for increased detail in witness statements prepared for workplace accidents that take place after 1st October 2013.
THE CHANGES TO CIVIL LIABILITY MADE BY THE ENTERPRISE AND REGULATORY REFORM ACT
Section 47 of the Health and Safety at Work Act provides (up to the 31st September 2013) that:
“(2) Breach of a duty imposed by health and safety regulations shall, so far as is it causes damage, be actionable except in so far as the regulations provided otherwise”.
This meant that there was liability for breach of the Regulations brought into force under the Act.
After the 1st October 2013 Section 47 now reads:
“(2) Breach of a duty imposed by a statutory instrument containing (whether alone or with other provision) health and safety regulations shall not be actionable except to the extent that regulations under this regulation so provide.”
The only regulations that now provide for civil liability for breach relate to breastfeeding at work. That means that the vast bulk of the regulations under the Act no longer give rise to civil liability.
THE EFFECT ON THIS ON OBTAINING EVIDENCE AND DRAFTING WITNESS STATEMENTS
I am certain that in the months (and probably years) to come there will be many posts and links which deal with the effect of the Act and how it is being construed and the merits of this section of the Act as a whole. However for the first substantive post on this subject I want to deal with the apparently mundane (but now absolutely crucial) subject of obtaining witness evidence and the drafting of witness statements.
WHY WORRY ABOUT WITNESS STATEMENTS AT THIS STAGE?
Under the old regime claimant lawyers could afford to be relatively relaxed about witness statements dealing with responsibility for the accident. The crucial questions were – did any Regulations apply and had they been breached?
Post 1st October, however, a claimant will have to persuade a judge that the employer/contractor/occupier had been negligent. This is not something that can be assumed. Any prudent claimant lawyer will now have to build up a battery of evidence that shows that the defendant could, and should, have done something to prevent the accident.
To this end detailed evidence is necessary. The witnesses must be asked:
1. What caused the accident to occur?
2. Why the employer was at fault?
Further the “why” cannot be a general or vague assertion of opinion. It is often the case that, the person doing a job is the best person to explain to the court the steps the employer could have taken to avoid the accident.
- So avoid:
“I blame my employer for the accident for not taking proper care”.
- Look for evidence (if available) that is very specific and factual.
“That machine had been dangerous for years and I had complained about it to X on many occasions”
- Things that changed after the accident can be significant, particularly when it can be established that if these steps had been taken prior to the injury then it would have been avoided.
- There remains a duty to train and give instructions. Specific evidence about the training and instruction given remains of considerable importance.
THE RISK ASSESSMENT
Remember that there is still a statutory duty on an employer to carry out a risk assessment. Ask the witnesses about this. If there was a risk assessment can they state, specifically, what it was inadequate? Factual evidence of experience on the “shop floor” is more likely to find favour at trial, particularly if it is clear and specific. If there was not a risk assessment: what were the risks involved? What could have been done to reduce or eliminate the risk?
PLEADING ALLEGATIONS OF NEGLIGENCE
I intend to deal in a later post with pleading in employer’s liability cases after the 1st October. However the reason I am stressing the need for careful taking of witness statements now is that detailed evidence needs to be obtained a before the Particulars of Claim are drafted. Vague pleadings of negligence are unlikely to suffice. An allegation that the defendant “failed to provide a safe place and safe system of work” often forms a backstop to a pleaded case, however it can never be the mainstay (and is often unnecessary and ignored in any event). Vague allegations add little to a case whereas quite specific assertions of what the employer could and should have done are more likely to find favour at trial. However this type of allegation cannot be pleaded without evidence and, in any event, is useless if there is no evidence to support it.
YOU CAN PUT THE WITNESSES OPINION INTO THE STATEMENT: BUT DO IT WITH GREAT CARE It is likely that many claimants will not be able to afford, or will not be allowed, expert evidence in support of a claim. However witness statements can contain some matters of opinion. If a witness says:
“I thought that area of the warehouse was dangerous so I used to avoid it. I was not surprised when X got injured”
This is important evidence. See the discussion in Lawrence v Kent County Council  EWCA Cave 493
The Court of Appeal considered a “second tier” appeal in a highway tripping case. The claimant won a case at first instance but lost when the matter was appealed to the High Court judge. Eady J allowed the defendant’s appeal because he felt that the circuit judge had relied on matters of opinion which were irrelevant. He found that he was, therefore, able to take his own view of the danger posed by the defect and held that it was not an undue danger.
The opinion evidence
The opinion evidence came from the claimant’s daughter who said that she took a photograph of the defect “because I don’t think it’s right” and “Obviously when my mother walks, she wears glasses, so she always looks ahead, she does not walk with her head down, so I think anyone could have possibly tripped in the same way, that was the reason”.
Further opinion evidence was given by the council’s surveyor who stated “I estimate the height of the manhole cover to have been around 10 to 15 millimetres” and “I didn’t feel it was dangerous”.
Sir Mark Waller (giving the judgment of the court) observed:
“It is trite law that opinions are the province of experts. It is furthermore trite law that even experts do not decide cases – judges decide with the help of experts. It is very common certainly in civil cases for a factual witness to give evidence and in order to describe that on which they are giving that evidence express an opinion. This is recognised by Section 3 of the Civil Evidence Act 1972 …that section provides –
3. Admissibility of expert opinion and certain expressions of non-expert opinion.
(1) Subject to any rules of court made in pursuance of this Act, where a person is called as a witness in any civil proceedings, his opinion on any relevant matter on which he is qualified to give expert evidence shall be admissible in evidence.
(2) It is hereby declared that where a person is called as a witness in any civil proceedings, a statement of opinion by him on any relevant matter on which he is not qualified to give expert evidence, if made as a way of conveying relevant facts personally perceived by him, is admissible as evidence of what he perceived.
“Furthermore time and again one sees references to the opinion of a factual witness in judgments in the authorities before us without any suggestion they are totally irrelevant. This in Mills v Barnsley Metropolitan Borough Council Steyn LJ refers to the unchallenged evidence of Mr Booth, the council’s inspector, that if he had seen the missing corner of the brick he would not have regarded it as a problem and would have treated it as a minor defect… while the judge was not bound to accept Mr Booth’s view as to the relative importance of the defect, it is not clear what inference he drew… In Uren v Corporate Leisure (UK) Ltd & Another  EWCA Civ 66 the Court of Appeal criticised the judge for thinking that “what spectators thought” about the dangerousness of a game was irrelevant and thought the judge was wrong to disregard the impressions of eye-witnesses. Perhaps the most striking case is that of Dalton v Nottinghamshire County Council  EWCA Civ 776 where Tomlinson LJ, in dismissing an appeal without calling on the respondents, approved the judge having placed great reliance on the view of the council’s surveyor that a protrusion was dangerous.
“Of course the weight to be given to such evidence will depend on many things. In the instant case Mrs Rose was the claimant’s daughter and thus not independent. Mr Cunningham was the surveyor who inspected the manhole cover after the event and might have borne some responsibility for any failure to repair and thus evidence against his interest might be more relevant than evidence which sought to lessen his responsibility”
THE RELEVANT TEST
Note the statutory test opinion evidence is admissible from a non-expert witness as a means of
“conveying relevant facts personally perceived by him”
The point is that there have to be “facts” personally perceived by the witness.
Guidance and links to a number of articles on witness statements can be found at
The Lawrence –v- Kent case is reported at http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Civ/2012/493.html&query=lawrence+and+kent&method=boolean