RISK ASSESSMENTS AFTER THE ERRA: BITE SIZED VERSION

The previous post on this topic contained the case law in some detail.  This post is a slimmed down version of the main points.

1. THE NATURE OF THE DUTY TO RISK ASSESS

Regulation 3 of The Management of Health and Safety at Work Regulations 1999 imposes a duty upon employers and the self employed to create a risk assessment.

However as a result of The Enterprise and Regulatory Reform Act 2013 a failure to risk assess no longer gives rise to civil liability. The amended Section 22 of The Management of Health and Safety Regulations 1999 now states

22.— Restriction of civil liability for breach of statutory duty
(1) Breach of a duty imposed by regulation 16, 16A, 17 or 17A shall, so far as it causes damage, be actionable by the new or expectant mother.
(2) Any term of an agreement which purports to exclude or restrict any liability for such a breach is void.”

IMPORTANT POINTS

• Employees bringing a claim against their employers for a failure to risk assess will no longer be able to rely on strict liability imposed by the Regulations.
• Instead Employers will have to show that their employers were negligent and breached their common law duty.

2. HOW HAS THE DUTY BEEN CONSTRUED BY THE COURTS?

The courts have been careful to scrutinise risk assessments in accident at work cases in Threlfall v Hull City Council [2010] EWCA Civ 1147.
http://www.bailii.org/ew/cases/EWHC/QB/2009/3042.html
it was stated that :

“For the last 20 years or so, it has been generally recognised that a reasonably prudent employer will conduct a risk assessment in connection with his operations so that he can take suitable precautions to avoid injury to his employees. In many circumstances, a statutory duty to conduct such a risk assessment has been imposed. Such a requirement (whether statutory or not) has to a large extent taken the place of the old common law requirement that an employer had to consider (and take action against) those risks which could be reasonably foreseen. “

The Courts approach to Risk Assessments in specific situations can be found in the following cases:
3. HOW THE DUTY WAS CONSTRUED BY THE COURTS PRIOR TO THE FAILURE TO RISK ASSESS GIVING RISE TO CIVIL LIABILITY

Before Civil Liability was attached to a failure to risk assess the courts had found that a failure to risk assess could give rise to liability.
Examples

Griffiths –v- Vauxhall Motors Ltd (2003) http://www.bailii.org/ew/cases/EWCA/Civ/2003/412.html
The Claimant was injured when a gun he was using to put bolts into cars kicked back. It was accepted that the employer should have carried out a risk assessment

Sherlock –v- Chester City Council (2004)
http://www.bailii.org/ew/cases/EWCA/Civ/2004/210.html
The Claimant was injured by a circular saw. Lord Justice Latham stated:

Even though the judge was entitled to conclude that the appellant was sufficiently well trained and experienced to have identified the requirement himself, that does not seem to me to be sufficient in itself to meet the common law requirement that the respondents should provide proper equipment and a safe system of work. At the very least the question should have been asked as to what was required so as to ensure that the appellant was alerted to or reminded of the need for either a run-off table or a second man. That was essentially what both experts agreed should have happened. If that had been done, both parties, that is the employer and employee, would have identified what was required and even if the only step taken by Mr Ankers had been to tell the appellant that he should construct a run-off bench himself there is nothing in the evidence to suggest that the appellant would not have followed such an instruction. The purpose of a risk assessment in a case such as this is to ensure that what may appear to be obvious is in truth obvious, in the sense that both parties have appreciated the risk. I say both parties, because it also provides the opportunity for an employer to ensure that he has taken appropriate steps to protect his employee.

Furthermore in Reynolds –v- Strutt & Parker [2011] it was stated In my judgment, that duty of care includes the making of adequate and suitable risk assessments, which, in my judgment, as was conceded in the case of Uren v Corporate Leisure UK Limited [2011] EWCA Civ 66 , are the same as those owed under the regulations to which I have referred.

IMPORTANT POINTS

• These cases show that although the duty to risk assess does not give rise to civil liability, it does not mean that a Claimant will not be able to rely on a failure to risk assess when trying to establish negligence/liability.

• Although the approach of the courts is yet to be seen there is a possibility that a failure to risk assess will be found to be a breach of employers’ common law duty of care.

4. SPECIFIC AREAS WHERE RISK ASSESSMENTS ARE RELEVANT.

(1) Taking part in external activities

Reynolds v Strutt & Parker LLP [2011] EWHC 2263 (Civ)
http://www.bailii.org/ew/cases/EWHC/Ch/2011/2263.html

The Claimant was injured whilst taking part in a cycle race organised by his employers during an activity day. Although Section 3 of The Management of Health and Safety at Work Regulations did not apply (he was not at work at the time of the accident) the Defendants were liable for a failure to properly risk assess. Their common law duty of care included the making of an adequate risk assessment :

“It has not been argued that it is unnecessary for me to deal with this issue, because the duty of care at common law, whether on an employer or an organiser of events such as this, is coextensive and coterminous with the statutory duties.”

(2) Slippers and Trippers

Bailey –v- Command Security Services (15/10/01 Lawtel)
The Claimant security guard was injured when he fell down a lift shaft. The Regulations were not relied upon. However it was stated that:

“it was the First Defendants’ duty to take reasonable steps to ensure that their employees’ proper sense of inquisitiveness did not lead them into danger; and in my judgment by failing to carry out any or a proper survey and risk assessment and, as a result, by failing to identify the danger, to bring it to the attention of the Second Defendants and to give appropriate warnings or instructions to their employees, including the Claimant, they failed to take reasonable care for his safety. Had they done so, the accident would not have occurred.”

See also Cheung v Zhu (t/a Yang Sing Fish and Chip) [2011] EWHC 2913 (QB) and East Anglia University v Spalding [2011]EWHC 1886 (QB)

(3) Manual Handling

The Manual Handling Operations Regulations were amended in 2003 so that there is a duty to make a suitable and sufficient assessment of all such manual handling operations at work.

The HSE Guidance gives useful information on when a risk assessment is adequate see (http://www.hse.gov.uk/pubns/priced/l23.pdf) it should consider the task, the load, the working environment and the individual capability. Again a failure to do so is likely to help establish liability in negligence.

IMPORTANT POINTS

• Although in principle civil liability has been removed from a failure to risk assess, Risk Assessments are still important.

• A failure to risk asses, if causative of the accident, is likely to lead to liability being established.

• In many circumstances the employers’ common law duty of care will encompass the duty to carry out a risk assessment.

RELATED POSTS

See the full sized version of this post at https://accidentsatworkandlossofearningsclaims.wordpress.com/2013/10/01/the-duty-to-risk-assess-and-common-law-duty-after-1st-october-2013/

For consideration of the existing relevance of the Regulations see
https://accidentsatworkandlossofearningsclaims.wordpress.com/2013/09/30/the-remaining-importance-of-health-and-safety-regulations-after-1st-october-2013/

USEFUL LINKS

The Health and Safety Executive
http://www.hse.gov.uk

The Management of Health and Safety at Work Regulations 1999
http://www.legislation.gov.uk/uksi/1999/3242/contents/made

The Manual Handling Operations Regulations 1992
http://www.legislation.gov.uk/uksi/1992/2793/made

The Provision and Use of Work Equipment Regulations 1998
http://www.legislation.gov.uk/uksi/1998/2306/contents/made

The Workplace (Health, Safety and Welfare) Regulations
http://www.legislation.gov.uk/uksi/1992/3004/contents/made

The Work at Height Regulations 2005
http://www.legislation.gov.uk/uksi/2005/735/schedule/6/made

The Personal Protective Equipment Regulations 1992
http://www.legislation.gov.uk/uksi/1992/2966/regulation/4/made

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