19 April 2021
Strict Liability is Dead, Long Live Strict Liability?
Anyone practising in employer’s liability personal injury litigation will be familiar with the strict approach to liability for work equipment imposed by the Provision and Use of Work Equipment Regulations 1998 (“PUWER”).
Regulation 5 of PUWER imposed strict liability in relation to defective equipment, arising from the extremely well-known decision in Stark v Post Office  ICR 1013.
Even if equipment was not defective, and was functioning perfectly well, regulation 4 imposed strict liability and a very high standard of care in relation to the suitability of work equipment. In Hide v Steeplechase Company (Cheltenham) Ltd and others  EWCA Civ 545 the Court of Appeal famously held that if injury results from contact with work equipment which is (or may be) unsuitable then liability will follow unless the employer shows that the accident was due to unforeseeable circumstances beyond his control or to exceptional events the consequences of which could not be avoided in spite of the exercise of all due care. To say that approach imposed an onerous burden on employers would probably be a serious understatement.
The 2013 reforms
However, as is equally well known, PUWER no longer give rise to civil liability. Indeed such liability was removed nearly 8 years ago (as from 1 October 2013) by section 69 of the Enterprise and Regulatory Reform Act 2013. There has been surprisingly little case law about the effects of this change. It seems tolerably clear that the courts consider it was designed to enact a perceptible change viz the strict liability regime. But it left untouched a potentially important piece of primary legislation. Since section 69 was enacted, claimants have turned more and more to section 1 of the Employer’s Liability (Defective Equipment) Act 1969 (‘the 1969 Act’).
The Employer’s Liability (Defective Equipment) Act 1969
Although often erroneously pleaded as such the 1969 Act does not impose statutory duties. It operates by deeming an employer negligent where certain conditions set out in section 1 are met:
(1) Where after the commencement of this Act —
(a) an employee suffers personal injury in the course of his employment in consequence of a defect in equipment provided by his employer for the purposes of the employer’s business; and
(b) the defect is attributable wholly or partly to the fault of a third party (whether identified or not),
the injury shall be deemed to be also attributable to negligence on the part of the employer (whether or not he is liable in respect of the injury apart from this subsection), but without prejudice to the law relating to contributory negligence and to any remedy by way of contribution or in contract or otherwise which is available to the employer in respect of the injury.
The conditions in summary are therefore:
- The employee suffered personal injury in the course of his employment
- The cause of the injury was a defect in equipment
- The equipment was provided by the employer, for the purposes of the employer’s business
- The defect is attributable wholly or partly to the fault of a third party
Importantly the Act specifically defines “fault” in section 1(3) as meaning “negligence, breach of statutory duty or other act or omission which gives rise to liability in tort in England and Wales or which is wrongful and gives rise to liability in damages in Scotland”.
Interpreting and applying the 1969 Act
The 1969 Act was passed to reverse the ruling of the House of Lords in Davie v New Merton Board Mills Ltd  AC 604, which had held that an employer was not liable for a defective chisel which shattered due to a latent defect (a defect not discoverable by reasonable inspection) caused by a negligent manufacturing process. The employer had sourced the chisel from a reputable manufacturer and could not have discovered the defect and so was not liable.
The wording of the 1969 Act is so clear that it seems unlikely recourse to Hansard would be needed to interpret it. It is nonetheless of interest to read the speech of Lord Morris of Kenwood on the second reading of the Bill in the House of Lords (Hansard, HL Deb 01 May 1969 vol 301 cc996-1011), in which he addressed the Act’s purpose:
“It has been said that the purpose of the Bill is to reverse the decision in the case of Davie. This is partly true, but there is a little more to it than that. Under the present law as declared in Davie, the employer is not liable in certain circumstances. The Bill lays down a new principle of liability, and it cannot therefore be strictly tied to the circumstances of Davie. It will be noted that the rule proposed by the Bill makes the employer liable without any fault of his: that is, of course, its main purpose. But the Bill does not impose absolute liability on the employer: he is not made into an insurer. He is only liable where there has been proved fault by someone. The employee still has the task—and it may still be a heavy one—of proving that the third party was at fault. Only if he does so can either the third party or the employer be liable. The employer's liability is thus only auxiliary to the third party's. But the fact that he is so liable will help to restore the balance of advantage somewhat in the employee's favour”.
This raises two questions:
- Precisely what must be proved in order to show the defect is ‘attributable wholly or partly to the fault of a third party’? The Act’s definition of ‘fault’ goes wider than simply negligence (which we would recognise as the main species of fault-based tort liability) and includes two further species of liability: ‘breach of statutory duty’ and ‘other act or omission which gives rise to liability in tort in England and Wales’.
- Upon whom is the burden of proof? Does the Claimant bear the burden of proving fault on the balance of probabilities? Or, if the Claimant proves that the equipment was defective, does this pass an evidential burden to the employer to show that the defect arose without ‘fault’?
The higher courts have yet to grapple with these issues. However a recent County Court case in Sunderland – Johnson v Nationwide Platforms Ltd – (decided by the experienced Deputy District Judge DG Morgan MBE on 25 February this year) offers some interesting observations.
Johnson involved a claimant who was employed as a mobile working platform operator. He was injured when a working platform cage suddenly dropped to one side during usage and he was obliged to hang in mid-air by a safety harness until he was rescued. The cause of the accident turned out to be the sudden failure of an internal bolt which had corroded over an indeterminate period of time (the platform had been in use for years without incident). The case focused exclusively on the 1969 Act because the court found that the defendant employer had in place an entirely appropriate maintenance scheme, and could not reasonably have been expected to inspect the internal bolt in question and/or detect the potential for it to have corroded before the accident.
The claimant argued that the failure of itself established a prima facie case of “fault” under the 1969 Act which it was then for the defendant to rebut by evidence. The Judge rejected that submission, finding that the burden of proof was and remained upon the claimant at all times. He nonetheless went on to find that the claimant succeeded on the facts because the defendant’s own evidence – particularly the contents of post-accident communications with the manufacturer – was sufficient to prove that the original bolt had been of an inappropriate specification (chrome instead of stainless steel) and this was sufficient to amount to ‘fault’ by the manufacturer for the purposes of the 1969 Act.
Proving ‘fault’ for the purposes of the 1969 Act
As Lord Morris said, proving fault can be a heavy task. This is particularly true of the task of a claimant proving liability of a manufacturer in negligence, for example in circumstances where there has been mass production of a product, and the manufacturer asserts a rigorous system of quality control. This would be difficult for a claimant to challenge forensically, and one expects claimants will rely instead on arguing that an inference of negligence may be drawn from the failure of a product during normal use.
There is however the interesting question of whether it would be sufficient for a claimant to prove that the producer of the product would be liable under section 2 of the Consumer Protection Act 1987 (“the CPA”). Part I of the CPA created a form of strict liability that probably neither Lord Morris nor anyone else in 1969 had yet imagined.
A full discussion of the CPA is beyond the scope of this blog. Suffice to say for present purposes that:
- CPA liability is strict, in that there is no requirement for fault whatsoever;
- CPA Part I imposes no statutory duties. Liability is based on the mere existence of a ‘defect’ in a product, as defined in the Act (subject to various statutory defences); and
- CPA liability, therefore, is obviously not liability in negligence.
CPA liability however undoubtedly arises in tort. Might it be described as some ‘other act or omission which gives rise to liability in tort in England and Wales’?
A potential difficulty with this idea is that it is not immediately obvious that the CPA has anything to do with acts or omissions of any kind (aside from, in the most general sense, the act of manufacturing a product, but that is not the only basis upon which CPA liability can arise).
The CPA argument featured in Johnson, albeit only during the trial and not on the pleadings. The Judge ultimately held that he did not need to deal with it because he was able to find that the claimant had sufficiently proved ‘fault’ for the purposes of the 1969 Act without needing recourse to the CPA. It remains to be seen whether this could be a battleground for future cases.
Burdens of proof
As noted above, in Johnson the Claimant argued that the mere fact of failure passed an evidential burden to the Defendant employer. This is by no means a new argument – the idea that the occurrence of a defect in work equipment may result in the burden passing in this way was approved by Lord Moncrieff in Macfarlane v Thompson (1884) 12 R 232 more than 80 years before the 1969 Act came into being! But interestingly, as noted above, the court in Johnson rejected it.
We doubt this will be the end of the argument. Historically the courts have been very ready to find that the risk of nil recovery should fall in the first instance on employers (with their mandatory liability insurance) rather than injured employees. They have also, in all sorts of contexts, developed a variety of principles designed to avoid requiring injured parties to prove the unproveable and/or to bear the burden of seeking evidence which would be easier (or at least less burdensome) for a defendant to adduce.
Either way it is interesting to note that the 1969 Act remains so under-analysed, nearly 8 years after it was supposedly (if somewhat ironically) given new life by the 2013 reforms.
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