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Posted By john ridley
We currently have an ex-employee who is seeking compensation for personal injury Their solicitors (Conditional Fee Agents - bless!) claim a breach of statute under the Management Regulations.
I realise that originally Regulation 22 of the Management Regs blocked any civil claim for breaches under this instrument, but I thought this had recentyly been removed. I am looking for the legislation that removed this block. I have looked in the Miscellaneous Regs, but cannot see anything in them.
Anybody any ideas if the block was removed, and is so under what legislation?
Many thanks
John
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Posted By Nicholas Williams
John
The catchily titled
The Management of Health and Safety at Work and Fire Precautions (Workplace) (Amendment) Regulations 2003
Rgds
Nick
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Posted By john ridley
Many thanks Nick, your help is much appreciated. However, I am even more confused now although I have to admit this is not a particularly difficult task when trying to understand our legislation.
Can anyone please clarify the following?
Regulation 22 originally blocked all civil proceedings for a breach of duty under the Management Regulations subject to two special categories of employees.
The new Regulations implemented by Statutory Instrument 2003 No. 2457 - The Management of Health and Safety at Work and Fire Precautions (Workplace) (Amendment) Regulations 2003, state the following:
"Regulation 6 - Restriction of civil liability for breach of statutory duty under Reg 22. Breach of a duty imposed on an employer by these Regulations shall not confer a right of action in any civil proceedings insofar as that duty applies for the protection of persons not in his employment."
Well now that is a clear as mud or at least it is for me but maybe I'm just thick. OK then, does this mean that an employee can seek compensation for a breach of duty under the management regs or not or does it only apply to non-employees?
I bet this will start a good debate thread.
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Posted By Dave Wilson
Came into effect on 27th October 2003.
basically if a "proven breach" of the MHSW Regs occurs then that can now be used as to bring a civil claim, for employees only and not others not in his employ! is how I understand it.
so if you havent been successfuly prosecuted under the MHSW regs after 27th Oct 2003 and they are not an employee, then case should not stand on this point, I think?
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Posted By Kieran Dowling
What the HSE press release disingenuously doesn't say is that the amendments were only made after the FBU took the Govt to the ECJ claiming that the Directive hadn't been fully transposed into UK legislation. The Court found in the union's favour resulting in the the removal of the civil liability exclusion clause.
The effect as I see it is that in any successful personal injury claim, failure to carry out a risk assessment would likely result in higher damages.
Kieran
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Posted By Adrian Watson
Dear All,
There appears to be a bit of a confusion here!
Basically for a claim of breach of statutory duty the claimant has to show that they were in a class, that who the law was designed to protect; that there was a breach of a duty imposed by law and that, that breach resulted in injury. You do not have to be prosecuted to show that there was a breach of the duty, but evidence of a conviction automatically shows that there was a breach of the regulation; the claimant still has to show that the injury flowed from the breach.
Furthermore in respect of the Management Regulations, a breach of a duty imposed by these Regulations before Oct 27, 2003 does not confer a right of action in any civil proceedings unless you were a young person or a pregnant worker, or a worker who had recently given birth or were breastfeeding.
On Oct 27, Reg 22 was amended so that employees have a right of action when an employer breaches a duty imposed on him by these Regulations. Employees still have to prove that the breach led to the injury. It should be noted that right of action is not retrospective, for breaches before 27 Oct 03!
Hope this helps.
Regards Adrian Watson
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Posted By Chris Abbott
That's very helpful for me! Thanks Adrian.
Chris
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Posted By Dave Wilson
Nice one adrian, make its certainly more clearer for me!
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