In last week’s Solicitors’ Journal there was an interesting article on a proposed amendment to the Enterprise and Regulatory Reform Bill which may make it significantly harder for employees to succeed with personal injury claims against their employer. A subscription is needed to read the whole article.
At the moment in England and Wales, an employee who believes they suffered an injury or illness at work has to bring a claim in either the law of negligence or for breach of statutory duty. Usually the claim will be brought on both grounds. There is a whole raft of statutory duties (often called the “Six Pack”, created by Regulation (all a product of European law) that exist to protect the employee. For instance the Workplace (Health, Safety and Welfare) Regulations, the Provision and Use of Work Equipment Regulations and my own favourite, the Manual Handling and Operations Regulations. In the days when I did lots of personal injury work they were like ld friends to me, enabling many a deserving Claimant to win their case.
Some of the regulations are ferocious as well because they impose strict liability on the Defendant meaning the Clamant is not required to prove fault, merely that the accident occurred because of a breach of the regulation. A good example of this harshness in action is the case of Stark v the Post Office from 2000, where an undetected defect in the brake on a postie’s bike led to an accident and injury. The evidence given in court said that the defect could not have been discovered by any routine or rigorous examination of the bicycle.
Mr Stark succeeded with his claim because it was held that the employer was under an absolute duty to ensure that the equipment being used was in efficient working order: the fact the accident occurred was proof that the regulation had been broken and the fact that the defect could not have been discovered by an inspection was of no consequence. This was a very harsh result on the Post Office.
The government’s proposal would prevent this result from occurring again because Mr Stark would now have to prove that the Post Office unreasonably failed to maintain the bicycle. That would be a much harder test to overcome and he probably would not succeed. The proposal recommends that civil liability be prevented from attaching to claims under s. 47(2) of the Health and Safety at Work Act 1974, which governs all the above regulations. Only the Health & Safety Executive would be able to enforce duties under Regulations and as it is under huge pressure itself from cutbacks effectively means many breaches will go unanswered.
Whether there is a compensation culture or not in this country has been a matter of hot debate for some years. The overall thrust of the government’s approach to individuals’ rights has been to try and reduce them, in all areas of employment. Although I doubt that these proposals have been influenced by it, if it does make law then it would mean there could be no UK example of a recent Australian case, where a government worker sued her employer for personal injury sustained during sex in a motel room.
Australian law is not the same as the UK’s, but cases decided Down Under can be influential because the legal system has the same foundation as ours. In this particular incident a light fitting fell on the unfortunate woman as she was having sex in a motel bedroom, causing injuries to her nose, mouth and teeth. She also suffered psychiatric injuries. Neither she nor her partner knew whether the light fitting got knocked or just fell off. She sued the federal Australian government because she was required to attend a departmental meeting the next day and the trip required an overnight stay. She argued that it was thus in the course of her duties. It was asserted on her behalf that the accident was “no different to slipping in the shower” and that “lawful sexual activity” should be considered reasonable behaviour in a motel bedroom. The Australian court agreed with her. The employer conceded that people in motel rooms needed to sleep, eat and wash but didn’t need to have sex. The Judge held that having sex in a motel room was no different to playing cards, so presumably if she had cut herself on a dangerously sharp playing card she could have sued her employer as well? Or perhaps she could have claimed an indemnity from her employer against her gambling losses playing poker in the hotel room?
Leaving aside the rather memorable facts, it does seem to me to be taking things too far to sue the employer in these circumstances. If I slipped in the shower (assuming I was the only occupant of said shower at the time) my first reaction would be to berate myself for not being more careful, perhaps followed by considering if the motel owner was liable under the Occupiers’ Liability Act. Suing my employer would be very much the last resort, even more so if I hadn’t been alone in the shower. However, I guess if Mr Stark could successfully sue for a dodgy brake on his bicycle, then a claim for breach of statutory duty for a light fitting that falls off the wall during the night might be possible. But not if the Government gets its amendment through. Perhaps it’s no bad thing after all.