201512.22
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Moves away from Strict Liability

Employers have long had the burden of strict liability on their shoulders when an employee has brought a personal injury case against them. The case of Stark v Post Office in 2000 determined that questions of reasonableness and foreseeability were irrelevant as the statutory duty placed on employers, namely to ensure items provided and used during the course of employment were kept in an efficient state, efficient working order and in good repair, was an absolute one.

It was against this backdrop that the case of Rooney v Western Education and Library Board was brought. The Plaintiff brought an action against her employer for personal injury she received when a cup she was washing broke and she sustained a serious laceration to her left wrist on 11th March 2011. The Plaintiff’s case was argued solely on the Provision and Use of Work Equipment Regulations (Northern Ireland) 1999 (PUWER) and whether or not the cup could be construed as work equipment. The Plaintiff did not allege that the Defendant had been negligent within her claim. The case was heard in the High Court on 6th October 2015 and judgement was delivered on 15th October 2015 in favour of the Plaintiff and awarding her £25,000.00 in damages.

The importance of the case could be viewed as two-fold. Firstly, that the Court ruled that a cup, which was not provided by the school but brought in by another member of staff, constituted work equipment under Regulation 2 of the Provision and Use of Work Equipment Regulations (Northern Ireland) 1999, and therefore the employer was under an obligation under Regulation 5 to “ensure that work equipment is maintained in an efficient state, in efficient working order and in good repair”. Secondly, had the accident happened on or after 1st October 2013, the case would have been regulated by the Enterprise and Regulatory Reform Act 2013 (ERRA), which effectively removes the strict liability provisions of the Health and Safety at Work Regulations and requires that Plaintiffs make their case based on negligence. Therefore a Plaintiff would have to prove that an employer had been negligent in failing to discharge their statutory duty.

For any cases currently being litigated in which the cause of action is before 1st October 2013, either in pre-proceedings stages, or those in which proceedings have been issued, Rooney v WELB extends the strict liability burden already placed on employers, meaning they must ensure that all items which employees use in the course of their employment, whether these are supplied by the employer or not, are maintained in an efficient state, in efficient working order and in good repair. If an item is brought into the work place, and then adopted into the work place, this too will constitute work equipment.

For cases where the cause of action is dated on or after 1st October 2013 Plaintiffs will have to do more than simply show there has been a breach of statutory duty as they will have to demonstrate there has been negligence. The explanatory notes to the ERRA read; “the amendment…reverses the present position on civil liability, with the effect, unless any exceptions apply, that it will only be possible to claim for compensation in relation to the affected health and safety legislation where it can be proved that the duty holder (usually the employer) has been negligent.”

Practically the onus on employers remains and they will have to ensure that they have an efficient and comprehensive system of inspection, maintenance and replacement of essentially all items which an employee uses in their course of employment if they wish to have any form of defence against personal injury claims made by employees in respect of defective workplace equipment.

by Laura McManus and Joseph Napier

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