The passing of the Enterprise and Regulatory Reform Act 2013 (‘ERRA’) was anticipated to have a profound impact on the way in which employer’s liability claims were litigated. The effect of section 69 was to remove civil liability for breaches of the variety of health and safety regulations which imposed strict liability on employers to employees injured in accidents at work.

Since the passing of the Act, however, there has been debate as to what the actual effect of section 69 was on accidents occurring after 1 October 2013.

How have the Courts interpreted the effect of ERRA?

Previous discussions of ERRA

In the years that have passed since ERRA came into force, and despite the significant number of employer’s liability cases which have come and gone in that time, relatively few substantive decisions have appeared discussing the effect of the change.

The first decision was Cockerill v CXK Ltd [2018] EWHC 115 (QB) in which Rowena Collins Rice (sitting as a Deputy High Court Judge) held the effect of ERRA was that the duties within the regulations remained binding on employers so as to continue to be relevant in answering the question of what was reasonable for an employer to have done (see [18]). However, the removal of statutory liability for employers by ERRA was intended to ‘rebalance’ the situation so as to realign their duty with that at common law negligence, and that, accordingly, not all breaches of a regulation which will be negligent.

The second decision discussed the effect of ERRA in obiter, albeit without prior submissions on the issue from the parties. That is the unreported decision of HHJ Gore QC in Tonkins v Tapp (2018), wherein the judge rejected the views expressed in Cockerill and effectively implied that ERRA had made no substantial difference to the liability position.

Chadwick v RH Ovenden Ltd & Hamilton

Thankfully, some further guidance has now come from the High Court – this time Simon Tinckler, sitting as a Deputy High Court Judge, in Chadwick v RH Ovenden Ltd & Hamilton [2022] EWHC 1701 (QB). The case concerned an accident at work when the Claimant was working for the Second Defendant on the First Defendant’s premises. The Claimant was dismantling an aircraft when a gas cannister (which was in an unexpected position due to the plane having undergone a change of use from a passenger to a cargo aircraft) exploded.

In considering the effect of ERRA, and the decisions of Cockerill and Tonkins, the Court held at [61]:

… the underlying statutory duties remain in place unchanged, certainly in relation to the criminal consequences of breach of those duties and so far as the HSE as the responsible regulator remains concerned. It also does not seem to me to be correct to say that a breach of statutory duty under HSE regulations will after ERRA 2013 automatically constitute negligence; s69 ERRA 2013 removed the automatic link between a breach of the regulations and the right to claim damages. The most obvious situation where this occurs is where a regulation provided for strict liability for non-negligent breaches; following ERRA 2013 there is no claim in such a situation and that is a change that ERRA 2013 put into effect. Parliament has not, on the other hand, legislated in ERRA 2013 to remove or amend the common law liability of a person for negligence.”

The importance of foreseeability

Importantly, greater clarity was also given as to the role of foreseeability post-ERRA. On that issue, the court stated at [63]:

“The reasonable steps that an employer should take are situation specific, and in particular will be influenced by the work that is to take place, and the harm that is foreseeable. It is an objective test as to whether an employer took reasonable steps and it is not for an employer to substitute their own test. An employer will be in breach of this duty if it fails to take a reasonable step even if the employer has not thought about whether or not it should take that step.”

As such, the decision confirms that the employer’s duty remains rooted, in the same vein as the common law duty, to do all that is reasonable to prevent foreseeable harm – and that liability will not attach to harm which was not reasonably foreseeable, even if there has been a breach of a regulatory duty. This observation was repeated at [71]:

“The next question was whether the harm caused was reasonably foreseeable, because an employer’s duty does not extend to harm that is not reasonably foreseeable.”

What is, or is not, foreseeable will be specific to the facts of the activity being undertaken. In Chadwick, despite both Defendants arguing that the presence of the cannister in the location the Claimant encountered it was unforeseeable to them, the Court nonetheless found them liable. The basis of that finding was that knowing that dangerous substances could be within aircraft, and knowing that the dismantling process involved power tools which could cause harm if they came into contact with such substances, the employer ought to have commissioned a comprehensive inspection of the aircraft prior to it being dismantled. Had they have done so, the cannister would likely have been identified and removed. The harm which subsequently occurred, was therefore deemed to have been reasonably foreseeable.


Chadwick provides some welcome guidance on employer’s liability post-ERRA. There are other interesting features within the decision outside the remit of this article’s focus: it is a recommended read to anyone practicing in this area of personal injury. Undoubtedly though, its principal benefit is the clarity it provides as to the employer’s duty now viz. the wording of the regulations and the role of foreseeability as a pre-requisite to establishing liability.