Posted By Jasonjg This is probably really simple but trust me, my head is battered by it at the moment (maybe it is just too early for me to digest the info). Breach of Statutory Duty = a civil action can be taken if it is shown that there was a breach of a statutory duty along with other tests i.e. strict liability etc. That’s fair enough, I can grasp that. I am stuck on the part where the HSWA 1974 excludes this for sections 2-8 as it seems it limits ones ability to claim and he is forced down the negligence route only if his employer was charged under section 2 of HSWA 1974. So If I was charged under section 2 in statute, does this mean any civil commences would have to just go for negligence rather than the double barrel action because only section 2 breach was mentioned in court even though it may have been due to a breach of a regulation that the company was charged. Do you need to have been convicted of a statutory duty to be civil liable for breach of statutory duty or is guilt of statutory breach also decided in civil court?. If convicted under section 2, can a civil case lawyer choose any of the statutory regulations in relation to the case to make a case of breach of statutory duty i.e. Management regs. So all in all after that waffle, what statute does most civil cases refer to when handling claims for employees in a breach of a statutory duty case?, and are they then stuck if employer is has only breached section 2 HSWA 1974?. I am aware of Occupiers Liability act but does that protect employees or just visitors. Thanks for any help Once I understand this part I have almost grasped it (I thinks :) Jason

Posted By Jasonjg Thanks Jos Yes I understand that part, It is when a company has been charged under section 2 of HSWA 1974. Does that now mean that the plaintiff is now restricted from claiming Breach of a statutory duty because Section 2 does not give this ability. So in effect he can only go the other route i.e. negligence. Or would a plaintiff be able to claim a breach of a statutory duty even though the company was not charged with it i.e. he could claim via managment regs failure. To me the Breach of the statutory duty looks like the best option but this is restricted by sections 2-8 HSWA 1974. I am finding it hard to understand why such restrictions are in place.

Posted By Jasonjg Thank you very much Robert I think I was after clarification that a plaintiff could choose whether or not he/she could use the Breach of a Statutory Duty route. Obviously his/her choice would have to fit with the tests you mentioned. What was throwing me off was the fact that Sections 2-8 HSWA are deemed non-usuable but regulations are unless specified otherwise. I was worried that should a company have been charged solely with section 2, 3, or 4, and then this automatically restricts the Breach of a Statutory Duty claim. But now I am thinking why does it matter or not if the company was charged or not. However it seems that in a civil case, ones barrister etc could actually pin point a specific regulation or set of regulations as long as it stands the appropriate test enough to win a case. So in effect, am I right in saying that a plaintiff could claim a Breach of a Statutory duty whether or not the defendant was charged with such breaches and even if he was charged i.e. section 2, a plaintiff could still find the appropriate regulation/s to state a claim so long as they stood to the tests etc. I do apologise for going a long way round a short answer but I needed to have this info understood or I would be heading for a disaster. Once again Thank you for your assistance Jason (may just be getting there) Still should have picked plumbing arrghhh :)

Posted By Mike Draper Jason The criminal process and the civil process are two separate things. Completely separate and for practical purposes independent in their operation. The prosecution of a crime proceeds on its own merits, to establish beyond a reasonable doubt guilt or innocence. A civil claim whether solely as a tort or as two separate claims one for as a tort and one for breach of statutory duty, also proceeds on its own merits to establish on the balance of probability, whether compensation should be paid for the loss suffered by the complainant. There does not need to be a criminal case for a civil claim to proceed and vice versa, there does not need to be a civil claim for a prosecution. Breach of stat duty is for specific duties. S2-8 are called general duties and are therefore statute barred in civil claims. There are exclusions in other regulations also, such as CDM, where the duties are largely general in nature. Does that help? It might help to understand that in H&S cases prosecuted by the HSE, as I understand it the inspector conducts the prosecution for the crown. In such circumstances it may be difficult, time consuming and potentially a waste of effort with little gain for an inspector to proceed with a full list of charges for every statute that was broken in each case, then having to demonstrate how each statute was broken to the satisfaction of the court. Hence there may be a bias in the criminal process towards prosecutions under the general duties (s2-8) of the HSW Act, with only some reference to specific statutes. Whereas in civil claims winning the breach of stat duty claim, particularly if it's an absolute duty, can prove easier than a drawn out case attempting to demonstrate negligence on the balance of probabilities. Mike

Posted By Jasonjg Mike & Bob Both descriptions have helped me a 1000 times over. I now feel I can make a start with a better basic understanding. It seems I have pannicked with confusion on the part of civil exclusion and its relation to torts. I failed to grasp the fact that a civil case would have its own tests in deciding that a Breach of Statutory Duty had occured (the obvious). Everything is just swimming in my head at the moment but the big picture is now a lot clearer thanks to that input from you both. It's funny that I am sat here with lots of books and texts and failed to draw the same conclusions and ended up sidetracked. Just goes to show it is better to feel stupid and ask the obvious rather than draw ones own conclusions. I will now re-read all text with a new insight and maybe it will all sink in much better than the first 30 times (ok I only read it the once). Thanks again guys Jason

Posted By Jonathan Sandler CMIOSH had a notice under sect 22 or 23 been issued? just wanted to know, you might wish to look at section 33 as well. Regards

Posted By Charlie Gunter Simply put, if you suffer loss as the result of a breach of statutory duty, you can sue using breach of stutory duty UNLESS the statutory instrument or Act says you can't. Regulation 22 of the MHSAW Regs 1999 used to bar such an action. The Regs were amended by The Management of Health and Safety at Work and Fire Precautions (Workplace) (Amendment) Regulations 2003. So now, theoretically, you can use breach of stutory duty imposed by the Management Regs if loss occurs as a result of that breach. Charlie