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Posted By ken mosley
I have just read the transcript of Lord Justice Woolfs 'Capita Symonds Lecture 2004' on 'Does the judiciary make any contribution?'.
I quote 'the claimant will also have a right to damages for breach of statutory duty. This is frequently under the Health and Safety at Work Act.' I was of the understanding that that section 47 of HSWA did not confer a right of an action in civil proceedings.
Is anyone brave enough to tell a law lord he doesn't know the law or perhaps this is what the gist of the lecture was: A contribution by the judiciary. What do safety practioners know anyway?
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Posted By Nick Egan
Ken. In answer to your question "Brave enough", of course, but on the other hand foolhardy enough definitely not! I don't think I would like to be used as a mop.
Nick
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Posted By fats van den raad
Yeah, watch me....
"Lord Woolfe, Ken Moseley says you are WRONG!!"
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Posted By Stuart Nagle
In fact I think you will find he is correct....
Civil action can now be instigated by the injured parties under the MHSW Regulations and I understand the workplace fire regulations, both of which were created under the powers vested in the HSAW etc Act 74 !!
Stuart
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Posted By Geoff S Bottomley
I think what he is getting at is in a civil case when the claimant is asking for compensation he will take a two pronged attack. Breach of Statary Duty and e.g. a Tort of Negligence. I am under the understanding that its used to support the case. This way of compensation claim is normal.
Geoff
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Posted By ken mosley
Section 47 of HSWA specifically excludes the right to claim for breach of statutory duty under the act(duties imposed by sections 1to 8). However, the section goes on to say that regulations made under the act allow for a civil action based on a breach of statutory duty unless the regulation states otherwise. Most regulations are not civil law exempt. The exceptions are few. The MHSWR were, but the civil exemption was removed at the back end of 2003.The CDM regs are exempt civil action except for regs 10 & 16.1.c. The fact remains that the statement of LJ Woolf was incorrect.
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Posted By David Sinclair
Ken,
I think you will find that Lord Woolf was correct.
s. 47 HSWA is now unsound where it applies to employees, since the ruling with regard to the MHSWR and Fire Precuations (Workplace) Regulations.
Any similar provision within Regulations is also unsound for the same reason.
Any attempt to exclude civil liability for breach of statutory duty with regard to health and safety involving an employee should result in the court applying EC requirements over those of UK law.
The changes to the MHSWR and the FP(W)R were made because they were found to be incompatable with the Workplace Directive.
Regards.
David
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Posted By neil poyznts-powell
David,
Am I right in thinking that if a statutory duty has been braeched then any claim of contributory negligance will fail.
Regards,
Neil
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Posted By ken mosley
David,
I think my basic point has been missed. LJ Woolfs comment is that a civil action can be brought based on a duty breach of HSWA. It cannot. If it could there would be endless case law. There is no case law using a statutory breach of HSWA in a civil action. I am not arguing the merits or precedence of European law over English law. You cannot bring a civil claim citing statutory breach of duty of a statute that does not confer civil action. You may use a successful criminal prosecution of failing to comply with the HSWA as support for a civil action and you may pursue an action for breach of the provisions of a European directive as a separate and alternative means of redress, but they are alternatives. The HSWA cannot be used.
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Posted By peter gotch
Ken
Seems to me that you are technically correct but that the exclusion set out in Section 47 of HSWA is largely immaterial.
Whether or not there has been a prosecution, if there is clear evidence that eg Section 2 of HSWA has been breached, then plaintiff liable to adduce this.
The standard of care required of the reasonable "man" would surely include compliance with their statutory responsibilities.
Regards, Peter
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Posted By Jay Joshi
It is likely that the implication was not a breach of statutory duty thro' HASAWA, but regulations made under the act.
Peter accurately points out that the civil "duty of care" is most likely to have been breached if there was a breach of HASAWA general duties as the civil duty of care similar to the general requirements of HASAWA.
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Posted By Stuart Nagle
My point entirely.
The HSAW Act give rise to the regulations by enabling them to be made. They define in greater detail what the Act states in generality. Whatever the EU may state, the regulations implementing them are UK law, hence the changes recently to MHSW and Fire Precautions to bring them fully in line with the requirements - or we could simply enact Eu directives could we not!. Although dictated by the EU they are made UK law, and the primary instigator of them is the HSW Act 74.
This is I belive what his Lordship was saying, in a roundabout sort of way !!
Stuart
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Posted By Jason Touraine
I’ll agree with you Ken. OK he might have meant breach of Regs made under HASAWA but that’s not what he said. So, at the very least it’s sloppy. Not good enough for a Law Lord. And what are all these re herrings about MHSW Regulations and the workplace fire regulations ‘since the law changed’? Loads of Regs have not been exempt from ‘breach of statutory duty’.
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