What is 'Strict Liability' and how has the law changed?
If you’ve ever considered what would happen if an employee or visitor was hurt at your business and decided to take legal action, then this article is for you.
Did you know that the Health and Safety at Work Act (HSWA) was amended this year (2014)? Do you know how this amendment affects your business? One of the key changes in HSWA is the removal of strict liability from civil court cases.
What is strict liability?
Strict liability specifies that there’s no defence against a prosecution arising from a breach of statutory duty. Imagine that you’re being prosecuted for a violation of the Working at Height Regulations 2005 for an employee falling off of a platform and getting hurt. Under strict liability you’re guilty regardless of the controls you had in place to keep personnel safe, which is very useful for holding companies who violate the law accountable.
One concern with strict liability is that when it applies to civil prosecutions, it makes it easier for an individual to win a court case against a company. This incentivises those harmed while on a business premises to pursue a lawsuit, even when the injury may not have been serious. It also makes it easier to bring litigation against a company under a false claim. In other words, strict liability in civil cases has been found to encourage a compensation culture, often through a no-win, no-fee legal arrangement with a solicitor.
The big news is that the HSWA has been amended to remove strict liability from civil court cases. So what does this mean for your business? Using the example above, it means if the employee who was hurt while working at height on a platform is seeking a litigation claim, you can now defend yourself against negligence if you've done everything reasonably practicable to keep that person safe.
If you had controls in place such as: provision of training, safe systems of work, routine equipment inspections and fit-for-purpose equipment, you could evidence that you were not negligent. Furthermore, if the employee had not followed the training instructions and procedures provided, you could further fight your corner claiming the employee was acting negligently.
In summary, remember this - if the HSE takes you to court under a breach of statutory duty, you are ‘done for’. If your employee takes you to court and you can evidence that you have done everything which was reasonably practicable, you stand a good chance of walking away relatively unscathed.