Common law

Common law is law developed through legal cases rather than by Acts of Parliament. Breaches of statutory duties, that is to say, duties contained in Acts of Parliament or regulations that are enforceable by regulators, may result in civil or criminal liability. It is a criminal offence to break health and safety law. Workers may also be able to bring a civil action against an employer for compensation. However, since the change to the HSWA under the Enterprise and Regulatory Reform Act 2013, described on page 64, in most cases they can only succeed if they can prove that the employer’s breach of health and safety law was negligent (i.e. that the employer was at fault) and that the employer’s negligence resulted in physical or psychiatric injury that was ”reasonably foreseeable”.

The most important common law duty with regard to health and safety is the duty of care. Employers have a duty to take reasonable care to protect their employees and their immediate family from the risk of foreseeable injury, disease or death at work.

If employers know of a health and safety risk (or should have known, based on the current state of knowledge at the time of the relevant incident) they will be liable if an employee is injured, killed or suffers illness as a result of the risk and they failed to take reasonable care. This duty of care is important where there is no specific statutory regulation, such as when dealing with repetitive strain injury (see Chapter 7), or stress, bullying and violence (see Chapter 11).

A landmark ruling in 2012, Chandler v Cape PLC [2012] EWCA Civ 525, decided that, in some circumstances, a parent company will owe a duty of care for the health and safety of workers employed by its subsidiary. The Chandler case concerned a worker who developed asbestosis, and the facts are set out in Chapter 6: Hazardous substances, Asbestos.