Can a Claimant Rely on an EU Directive to Avoid the Enterprise and Regulatory Reform Act 2013?

I recently acted in the High Court appeal in Wetherell v Student Loans Company Ltd [2024] EWHC 1443 (KB) which raises some interesting questions about the personal injury landscape after the Enterprise and Regulatory Reform Act 2013.

When the Enterprise and Regulatory Reform Act 2013 came into force and personal injury claimants could no longer rely upon the various Regulations to establish a cause of action, there was a lot of discussion about what this would mean. Over 10 years later, there has been a surprising lack of authority about any of this. This is now potentially complicated all the more by Brexit.

The well-known effect of the 2013 Act was that all claimants now have to show negligence rather than relying on strict (or nearly strict) liability under the various Regulations.

One example of this was the case Hide v Steeplechase [2013] EWCA Civ 545. A jockey injured in a horse race could rely on Regulation 4 of the Provision and Use of Work Equipment Regulations 1998 (“PUWER”) to argue that if a defendant wanted to assert that work equipment was not unsuitable, the defendant had to plead and prove that the accident resulted from unforeseeable circumstances beyond its control. Otherwise, the defendant was liable. That would not be the case in negligence and the defendant would be in a much stronger position.

In Wetherell, the claimant was working in a call centre when spikes of noise from a headset, he said, caused him to suffer from tinnitus.

There was an engineering report which confirmed that the headset complied with all relevant health and safety guidance in the UK and therefore any argument in negligence was dead in the water.

However, if the claimant could rely directly on the EU Directive which underlay PUWER, he would still win because the defendant had not pleaded (and would be unlikely to prove) that the injury resulted from unforeseeable circumstances beyond its control.

The claimant’s case was that the defendant, the Student Loans Company, was an emanation of the state as it exists only to administer student finance on behalf of the government.

If so, the claimant could rely on the EU principle of direct effect to say that because the Directive was not properly implemented into UK Law (given removal of civil liability following the 2013 Act), he could simply rely on the Directive itself, with the same results.

At trial, HHJ Freedman found that he was not persuaded on the evidence that the Student Loans Company was an emanation of the state and so dismissed the claim.

The case recently came on appeal in the High Court before Eyre J who dismissed the appeal on the basis that there was a paucity of evidence and it was difficult to find that the Student Loans Company was indeed an emanation of the state.

Eyre J also considered the difficult question of whether it can be said that the effect of removing civil liability for the Regulations meant that the UK had now failed to implement the Directive, and found that the appellant had failed to demonstrate that the state of the domestic law after the 2013 Act came into force amounted to such a failure ergo he had failed to demonstrate that the judge was wrong to proceed on the basis that there had been implementation.

One question which has not been decided is the effect of Brexit. The claimant’s position was that since his injuries occurred in 2014, long before the Brexit vote itself in 2016 and the ultimate withdrawal from the EU on 31 January 2020, this should not make a difference because a fundamental principle of statutory interpretation is that it is not retrospective unless specifically proscribed.

The claimant has sought permission to appeal to the Court of Appeal.

These questions, and perhaps many more, may yet be decided.