3. HSWA 1974
  4. Civil Duties/Liabilities of Employer for Injury
  5. Tort of Negligence
  6. Tort of Breach of Statutory Duty
  7. Breach of the Contract of Employment
  8. Duties of an employee


Criminal law is designed to deter persons from failing to comply with prescribed duties through the threat of imposition of a fine and/or imprisonment. Further one breach may give rise to a claim for compensation and the imposition of a fine according to the attendant circumstances.

Criminal law is associated with safety at work through the HSWA 1974 which sets the basic and general rules an employer must respect in order to provide health and safety for his employees.

When an employee is injured at work, his employer is usually prosecuted under criminal law embodied in the HSWA 1974.

Criminal court structure: criminal cases relating to health and safety at work are mostly dealt with in:

i) magistrates' courts which deal with small claims for non-significant cases (summary convictions) and,
ii) Crown courts where a judge and a jury decide major cases (indictment).


Civil law deals with the rights and responsibilities of employer and employee with respect to each other and how a breach of duty on the part of either may give rise to a claim for compensation from the other.

Civil courts structure: civil cases relating to health and safety at work are mostly dealt with in County courts and in the High court according to the complexity and to the size of the claim.

HSWA 1974

The purposes of the legislation:

This is an act to make further provision for securing the health, safety and welfare of persons at work, for protecting others against risks to health or safety in connection with the activities of persons at work, for controlling the keeping and use of dangerous substances, and for controlling against certain emissions into the atmosphere.

The HSWA 1974 sets the general rules to be respected by every employer. More specifically section 2 of the HSWA states that:

a) an employer must ensure as far as it is reasonably practicable the health, safety and welfare of all employed, self-employed persons while at work and of the general public by offering:
i) safe plant;
ii) a safe system of work;
iii) a safe place of work/working environment;
iv) safe staff - safe fellow employees.

b) all employers must have a written safety policy.

Section 7 HSWA

It shall be the duty of every employee while at work to take reasonable care for the health and safety of himself and of other persons who may be affected by his acts or omissions at work.

Section 3 HSWA

Every employer and self employed person shall ensure as is reasonably practicable the safety and health of all persons not his employees who may be affected by the activities of the employer or self employed person.

Other points which have to be considered are those relating to:

i) safe handling equipment;
ii) adequate information;
iii) adequate instruction;
iv) appropriate training;
v) appropriate supervision;
vi) safe access and egress;
vii) sufficient lighting;
viii) efficient fencing of machinery.

The above points listed in the HSWA 1974 are the basis for all safety standards set in various types of legislation such as:

i) statute law (the Factories act 1961);
ii) statutory instruments;
iii) M notices;
iv) codes of practices;
v) guidance notes.

Failure to provide any of the above safety measures is evidence of carelessness and an employer can be held liable for any incidents (where this carelessness causes injury to an employee).

Civil Duties/Liabilities of Employer for Injury

An injured employee claiming compensation from his employer must show:

i) that the employer or his servant committed either or both the tort of negligence or tort of breach of statutory duty;
ii) the employer committed a breach of his contract of employment.

Tort of Negligence

This is a breach of a legal duty to take care which results in damage to the plaintiff, undesired by the defendant.

The civil law imposes a duty on all employers to take reasonable care with respect to the safety of employees, where there is a failure in this duty and injury results, a claim for compensation will stand.

Negligence in employment is assessed when someone fails to comply with statutes or statutory instruments and someone else suffers damages.

The points to considered when assessing a civil claim made under the tort of negligence are:

i) whether the employer has performed his duty of care;
ii) whether there was a duty in fact;
iii) whether the employer has shown care and reasonableness;
iv) and whether res ipsa loquitur applies in the case.

Tort of Breach of Statutory Duty

The primary purpose of safety legislation is to set standards to remove or reduce the hazards which may result in personal injury.

This is civil wrong relating to the breaking of a duty imposed by legislation (statutes or statutory instruments) upon an employer or an employee for whose actions the employer is vicariously liable, which results in injury to a person. The relevant legislation and the specific case establish whether a claim for compensation is permitted.

The injured person can claim under the tort of breach of statutory duty provided that:

i) the statutory duty was designed to protect the class of persons in which he belongs, from injury;
ii) the injury was of the sort the legislation aimed at preventing.

In order to prove the case the plaintiff has to prove that:

i) the breach caused the damage;
ii) the defendant was the person on whom the duty was imposed.

It is necessary for the plaintiff to prove that the legislature imposed the duty upon the defendant for his protection, and the defendant broke that duty, in consequence of which the plaintiff has suffered harm of the type contemplated by the statute.

Breach of the Contract of Employment

If an employee suffers injury at work due to the employer's lack of care (care is an implied term in every contract of employment), a claim may be made for damages in breach of the contract.

When a person is successfully prosecuted for breach of a duty imposed by statutes, statutory instruments and regulations deriving from the HSWA, the conviction can be used and support a civil claim.

The HSWA section 47, specifically excludes the possibility of civil actions arising from a breach of the general duties imposed by section 2 to 7 or any contravention of section 8. These duties are enforced through the process of criminal liability and a range of penalties are prescribed.

The two general defenses to civil liability are:

i) violenti non fit injuria; and
ii) contributory negligence.

The relationship between civil and criminal law in health and safety at work can be depicted as follows:

A person who has suffered injury at work may prosecute his employer under the provisions of the legislation deriving from the HSWA 1974 (statutes, M notices, statutory instruments, etc.); legislation which is applied under the scope of criminal law with relevant consequences. Moreover, if the criminal claim succeeds, the injured person can use the conviction to support a civil claim (for compensation).

This is not the case when the criminal proceedings are based on section 3-7 of the HSWA 1974 as mentioned before.

Duties of an employee

i) section 7(a) imposes on the employee while at work a duty to take reasonable care for the health and safety of himself and of other persons who may be affected by his acts or omissions at work;
ii) section 7(b) imposes on an employee the duty to cooperate with the employer so far as is necessary to enable any duty or requirement imposed by the employer to be performed or complied with;
iii) all employees must use any machinery, equipment and device according to the instructions, training and information provided by the employer.

Copyright ©, 1997 Marinet