The era after ERRA – the reality of the impact on COSHH claims
Many believed that defending claims made pursuant to the Control of Substances Hazardous to Health Regulations 2002 (COSHH) would become fairer following the introduction of the Enterprise and Regulatory Reform Act 2013 (ERRA), however, that does not seem to have been the reality.
COSHH applies to substances (such as fumes and dust) which pose a hazard, often when airborne or in contact with the skin. Such hazards typically give rise to claims for dermatitis and asthma as well as other more serious conditions such as silicosis.
COSHH requires a high level of risk assessment and consequent control measures of an employer. The primary duty of an employer under COSHH is to prevent exposure to hazards, unless it is not reasonably practicable, in which case, the employer’s duty is to adequately control the exposure.
The fact that the risk of injury was unforeseeable did not provide a defence and as such, the employer would be liable regardless – even if the risk assessment did not reveal any hazard. As such, COSHH claims have been particularly difficult to defend.
ERRA, which came into force on 1 October 2013, changed the position. It stated that a breach of COSHH did not give automatic rise to a civil liability- but the criminal liability remained. It also meant that it became possible to run a defence against a COSHH claim on the basis that the risk was unforeseeable. Whilst this change had the potential to lead to fairer outcomes, the ERRA brought uncertainty as to how COSHH claims would develop and as to what an employer’s duty would now be.
The wording of COSHH puts a high criminal duty on the defendant. But what does a breach of COSHH now mean in practice for a civil claim if an employer’s breach of duty no longer automatically gives rise to liability?
In response, a number of recent cases have clarified that position. The courts have confirmed that all health and safety regulations, similar to COSHH, continue to define the duty of care owed by the employer to its employees in relation to hazards.
A key issue to determine liability is what the employer knew, or ought to have known, of the risk and what steps should have been take to safeguard against it. The courts confirmed that a suitable risk assessment remains at the heart of what is required of an employer.
What is now required of a risk assessment under COSHH?
Post-ERRA, the emphasis remains on an employer conducting a purposive risk assessment. This requires a high level of investigation and employers need to do all they can to discover the risks and to take the appropriate steps to safeguard against any possible hazards.
It is unlikely that relying on easily obtainable information will be sufficient, such as that from the Health and Safety Executive. Further, the onus to investigate and take all necessary steps increases if the process involves new materials and the more unusual the material or process, the more research the employer should carry out to discover potential hazards.
Exposure to hazards must be prevented, if reasonably practicable, and where it is not, the hazard must be managed through suitable control measures, such as ventilation and protective equipment.
It is now possible to defend a claim under COSHH on the basis that the risk was unforeseeable. In practice, it continues to be challenging, as it will be rare that an injury will be caused from a genuinely unforeseeable risk.
What the ERRA has done, however, is to shift the burden of proof, so that it is for the claimant to provide evidence as to what the risk assessment should have identified as a risk, and what control measures should have been in place. In practice, employers will need to continue to maintain a pro-active risk assessment procedure and control measures in relation to hazards, if they are going to defend these claims under COSHH in the future.