A review of s.69 Enterprise Act 2013 and its impact on civil liability in Employer’s liability claims.

Before 1 October 2013 civil liability in employer’s liability claims were almost exclusively determined by statutory regulations. A breach of those regulations by the employer generally resulted in a claim being brought by an employee for an injury succeeding.  Prior to 1 October 2013, the burden of proof was upon the employer to show that it had complied with the relevant regulations.

At a stroke and with little notice this all changed on 1 October 2013 when s. 69 of the Enterprise and Regulatory Reform Act (‘the Act’) came into force.  The effect of section 69 was draconian and reversed the burden of proof.  From 1 October 2013, a claim brought on or after that date would only succeed if the employee could demonstrate that his employer had been negligent.

Has s.69 resulted in a shift in favour towards the employer?  Arguably no.  Given the imbalance of knowledge of a workplace between an employer and an employee once an employee puts forward a positive case, the onus will be on the employer to demonstrate that they have taken reasonable steps to ensure the safety of its employee.

Where work equipment has failed and resulted in an injury to an employee, the mere fact that it has failed (as in Stark –v- Post Office [2000]when a latent defect in a bicycle which could not have been discovered resulted in injury) will now on its own be unlikely to succeed.  An injured employee may need to show how the machine failed and that it did so from a lack of reasonable care on the part of the employer.  This may require expert evidence and this in itself raises the spectre of proportionality particularly in low value claims.  An alternative pathway to succeeding where injury has resulted due to defective equipment  is to rely upon The Employer’s Liability (Defective Equipment) Act 1969.  That Act provides that when an employee suffers an injury due to defective work equipment, and the defect is wholly or partly attributable to the fault of a third party whether  identified or not, that injury shall be deemed to be attributable to the negligence of the employer.  

The overall effect of the introduction of s.69 has made employer’s liability claims more difficult to succeed (given the lower threshold that an employer now has to overcome), but has not made them impossible

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