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288 EMPLOYERS^- UABIUTY

duties in existence, to consider the common law alone would give a fals_e picture of the present law of employer's liability. We shall also, therefore consider first sonie of the morę significant of these duties and their effect upon employer's liability as a whole.

Statute Law-⁸

8.4 The Health and Safety at Work, etc., Act 1974 was passed as a result of the report of a Royal Conimission which reconimended a thorough review of the then existing patchwork of industrial safety legislation.²** The Act contains a generalised duty upon employers to ensure, so far as is reason-ably practicable, the health, safety and welfare at work of all employees. This duty is in some respects reminiscent of the employer's common law duty of care towards his workers, but the duty is supported only by penal sanctions and does not give rise to any civil liability.³⁰ However, the Act also gave power to repeal existing statutes goveming safety and replace theni with regulations which would continue to give rise to civil liability unless they provided otherwise.³¹ This process madę comparatively slow progress until the arrival on the scene of European Community legisla-tion. As a result of a series of E.C. Directives,³² implemented by a number of important Regulations there has been a radical reform of the statutory law in this area. It would be entireiy out of place in a book of this kind to attempt to consider these provisions in detail but they are an important source of civil liability and without some sketch it is not possible to see the generał common law in its wider context. As a result of the Regulations, most of the familiar provisions of the Factories Act 1961 and the Offices, Shops and Railway Premises Act 1963 (major sources of case law) disappeared.”

The Management of Health and Safety at Work Regulations 1999^v‘ are, from an administrative point of view, the central element in the scherne and implement the so-called "framework" E.C. Directive³³ in so far as the generał provisions of the Health and Safety at Work, etc., Act do not already incorporate the principles of the Directive into English law. Per-haps the most significant feature of these Regulations is the duty of every employer to make a "suitable and sufficient assessment" of the risks to the health and safety of workers and of other persons likely to be affected.

Eiicyelopaetha of Health mul Safety at Work. hne atul Practice.

Cmnd 5034.

"S.47U).

" s.47(2).

* 89/391, 8/654 89/655 89/656 90/269 90/270 91/383.

" For a sketch of the preeious law, see the 13th ed. of this work. pp 197 et soj. "5.1 1999 No 3242 (replacing S I. 1992 No. 2051).

"89/391.

These Regulations do not generally give rise to civil liability,^" but the others do.⁵⁷

Broadly speaking, the scheme was to replace the old system of legislat- 8.5 jpg separately for each type of trade by a unified set of regulations goyerning particular aspects of employment, so that, for example, the Workplace (Health, Safety and Welfare) Regulations^vs deal with ventila-tion, cleanliness and working facilities in offices and shops as well as in fectories.³⁹ As was previously the case, the Regulations impose a mixture of unąualified, or absolute, obligations and obligations which are qual-ified in some way. An example of the first category is regulation 19 of the Workplace Regulations, which provide that "escalators and moving walkways shall \inter alin] function safely". On the other hand, the duty to keep floors free from obstructions or substances which may cause a fali (regulation 12(3)) must be complied with "so far as is reasonably practic-able". There is a very large amount of case law under the previous legislation on the meaning of "reasonably practicable" and this will no doubt remain relevant. Where this expression is used, liability has been held to depend upon whether the risk in question is sufficiently great to cali for the measures necessary to eliminate it. This certainly has some affinity with the generał law of negligence but the burden of proving that the measures necessary were not "reasonably practicable" rests with the defendant,⁴⁰ and therefore a worker who proves that he has suffered injury because the statutory requirement has not been met establishes at least a prima facie case—he is not required to aver what measures the defendant should have taken to comply with the regulation.⁴¹ It is true that after all the evidence has been produced the initial burden of proof is rarely of importance,⁴² but the claimant is in a stronger position when attempting to negotiate an agreed settlement of his claim and in the early stages of litigation if he can rely upon the legislative provision than if he has to shoulder the burden of proving negligence at common law.

One of the best known provisions of the old law was section 14 of the 8.6 Factories Act 1961, which required that everv dangerous part of machin-ery should be securely fenced and which was construed as imposing an absolute duty in the sense that difficulty or even impossibility of comply-ing and at the same time leaving the machinę in a usable condition afforded no defence. The new equivalent is regulation 11 of the Provision

** Reg. 22 (with certain exceptions, in particular Reg. 19 dealing with the employment ot young persons).

It is not possible to evadc this by an argument that the Directive has been incompletely implemented ^or has direct effect: Cross u. Higiilatuis and Jslaitd* Enterprise* (20011 I.R.L.R. 3.36, O li For the "negative” reason that they an* madę under the Health and Safety at Work, etc., Act 1974 and there is no contrary indication for the purposes of s.47(2) ot that Act.

“S.I. 1992 No. 3004.

However, the coeerage is not universal: e.g. S.l. 1992 No. 3(X)4 does not apply to ships. building sites ^ or mines and quarries.

tinttmo v. Alexander Couwi & Sons Ltd |19»>8) A.C. 107 Applied in the context of the Control of Substances Hazard o us to Health Regulations I9S8 (S.l. 1988 No. 1637) in Biltoti r. Fast net Fli^ltlands Ltd,

The Times, \ovember 20, 1997. For a elear application of this in a case where the defendant had failed _Ą 1° plead the practicability issue. see hm ter v. British Steel pic |1993| I.C.R. 33.

¹ Bilton v. Fastnet High land* Ltd, above.

” Pomian Lang ISteid) Ud Ml (19641 1 W.LR. 333 at 333, per Lord Reid ; lenkins v. Allied Inmfaunders Ltd 119701 1 W.L.R. 304 at 312. per Lord Guest.