At the moment, we do not know the probable cause of the tragic helicopter accident in Glasgow on the evening of 29 November 2013, so the following discussion is hypothetical. It also concentrates exclusively on the application of the law to the occupants of a helicopter in similar circumstances (i.e. all persons “at work” at the time) and their relatives.
In delivering an online update webinar to members of the Association of Personal Injury Lawyers (APIL) on 09 December 2013, APIL Chief Executive, Deborah Evans, has highlighted how one possible scenario for the accident could provide an example of the changes brought about by the Enterprise Act with effect from 01 October 2013. These changes affect employees’ ability to make claims for personal injury damages against their employers arising out of accidents at work and also the rights of employees’ families to claim compensation for the death of their relative in the course of their employment
We have blogged about the effect of the legislation more than once already, including the likely differences between public and private sector employees.
It was previously the law that an employee (or their relatives) could rely on a breach of a health and safety regulation by their employer in order successfully to establish a claim for personal injury (or death). This was usually an easier route to proving liability than having to rely on negligence.
For negligence to be established, you need to be able to prove that an accident was reasonably foreseeable – for example, because there were previous similar accidents or there was a history of a particular piece of equipment failing in a similar fashion in the past.
On the other hand, for breach of statutory duty, some claims could succeed even though the accident was not foreseeable at all – as in the case of failure of a piece of equipment which was properly serviced and maintained and apparently in good working order. Removing liability in this “Stark –v- Post Office” type of situation was one of the prime aims of the Westminster Government in enacting s.69 of the Enterprise Act and, under the new legal regime, they will be very difficult claims to win.
For accidents at work occurring on or after 01 October 2013, breach of health and safety regulations no longer gives rise to civil liability. Accordingly, for accidents at work, it is now generally necessary for injured employees to base their claims on negligence.
So soon after the change in the law and before any decisions have been made by the courts on the basis of the new law, there is still a degree of uncertainty as to how things will pan out. However, it seems to be clear that not everyone is affected by the change in the law and one set of employees within the exception is those whose employers are “Emanations of the State”. If you are employed by the NHS or a local authority, for example, you work for an emanation of the state. For these employees, in effect, the previous law remains unchanged and breaches of health and safety regulations can form the basis of an employers’ liability personal injury claim.
Taking the hypothetical scenario of a well-maintained helicopter crashing as the result of an unforeseeable mechanical failure and resulting in the deaths of the occupants of the aircraft, there could be significant differences in the prospects of success of claims by the families of the deceased. On one side of the coin, the helicopter pilot, employed by a private company, will not be covered by the emanation of the state exception and any relatives with a claim will have to base it in negligence, with its requirement of foreseeability. On the other side, the police officer passengers are employees of an emanation of the state and so their relatives’ chances of making a successful claim for damages – in these (we stress) limited, hypothetical circumstances – are much better because they can claim for “breach of statutory duty”.
