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17 October 2014 / by / in

Can Regulators be Liable?

Under the fee for intervention scheme HSE is able to recover the costs for carrying out its regulatory functions from an organisation that in an inspector’s opinion is in material breach of health and safety law. Before any invoices are rendered, the organisation will receive a letter from the inspector, headed ‘notification of contravention’, that sets out the alleged material breaches found. It is not uncommon for these letters to outline the detail of the action that the inspector requires for matters to be remedied.

Inspectors can form the view there has been a material breach before they have had much of an opportunity to investigate matters. In such circumstances, there is a danger that they will concentrate on the risks involved in the incident they are investigating and they will not fully appreciate the wider impact of the changes they wish to see on other risks in the workplace.

Furthermore, in specialist industries the inspector may not have the appropriate expertise (or indeed any specialist inspector brought into the investigation) to  be able to adequately assess the work process and the risks involved.

So what is the position if a change required by HSE in response to a notification of contravention later contributes to an accident: Can the HSE be held liable?

Regulators will often use the line that since they are not the duty holder, there can be no liability upon them. However, matters may not be so straightforward.

HSE can take some comfort from the House of Lords case of Gorringe v Calderdale MBC [2004] 1 WLR 1057. This suggests it will be difficult to sue a public body. The case concerned a claimant who had been involved in a car crash and was blaming the local authority for not putting a warning in the road to slow down. The court held that “no liability will arise in negligence out of a mere failure, without more, by a public body to confer a benefit by its omission to fulfil a public statutory duty”.

However, the case of HSE v Thames Trains [2003] EWCA Civ 720, which predates the Gorringe decision, provides an example of a regulator being held to potentially owe a duty of care. The case concerned the Ladbroke Grove train crash in October 1999. A driver passed a red signal when leaving Paddington Station and collided with an incoming high-speed train, killing 31 people, including both drivers. The signal in question had been passed at red on eight previous occasions. Thames Trains claimed that Her Majesty’s Railways Inspectorate, which was then part of HSE, was in breach of its duties under the Health and Safety at Work etc Act1974 in respect of its regulation of the railway infrastructure in the area.

 It was said HSE had detailed special knowledge, input and involvement in relation to the dangerous signalling system over a period of three years. HSE applied to strike out the claim against it saying it did not owe a duty of care. A High Court judge declined to do so and HSE appealed. The Court of Appeal upheld the judge’s decision that while the 1974 Act did not give rise to a cause of action through a breach of statutory duty, it was possible a duty of care may exist on the particular facts of the case giving rise to a claim in negligence.

The case was settled out of court and so the issue was never resolved. This is not a settled area of law.

The cases suggest that a claim against a regulator is more likely to be substantiated where the negligence concerns a positive act rather than an omission to act. Such cases will be fact sensitive. However, with the changing landscape and expectations on HSE, it is not beyond the realms of possibility that we could see claims against the regulator in the future.

Originally published in the September 2014 edition of SHP magazine. http://www.shponline.co.uk/

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