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TRAVEL RISK MANAGEMENT 2015 17 In general these more speciic duties are not qualiied by reference to reasonable
practicality, and liability is likewise strict.
Section 2 HSWA and a supplementary provision in section 40 of the Act (which shifts the burden of proving the limits of what is reasonably practicable from the prosecution to the defence) have has been interpreted by case law 12 as meaning that in the event of an employee being injured at work, fatally or not, the employer is strictly liable for breach of duty unless he can show that he did all that was reasonably practicable to ensure the relevant employee's health and safety. Such a duty may be diicult and often impossible to discharge.
In the event of prosecution, the prosecutor is not required to adduce evidence of a speciic health and safety failing on the part of an employer. The prosecution must identify a material risk to which the employee was exposed but any accident which may have actually occurred will be strong evidence of that risk. The prosecution does not need to show that any accident was foreseeable. However, foreseeability will be relevant to consideration of the materiality of the risk and whether all reasonable practicable precautions were taken. This case law would appear to be generally in line with the UK's obligations under Articles 5(1) and 5(4) of the Framework Directive.
Except in certain limited particular cases, HSWA and its subordinate legislation do not give rise to civil liability but equally do not in general afect any civil responsibility under common law. This approach, and the qualiication of certain duties by reference to reasonable practicability, was upheld by the Court of Justice of the European Communities ("CJEU") against a challenge brought by the Commission for alleged failure by the UK to implement the Framework Directive in case C127/05/EEC (Commission v UK).
In the UK, the civil liability of employers towards their employees is parallel with, but quite separate from the criminal and regulatory liability under HSWA. S.2 HSWA was drafted on the basis of the case law on awarding compensation in respect of death or injury to employees, but this civil liability is not strict, and depends on proof of fault on the part of the employer. That aspect of the UK regime was upheld by the CJEU in the case C127/05/ EEC just referred to. Until very recently the general common law rule of civil liability being based on proof of fault was in fact supplemented in many cases by a principle of strict liability without proof of fault for breach of statutory duty in case of breach of speciic duties imposed by health and safety regulations. However, following the enactment of s.69 Enterprise and Regulatory Reform Act 2013 and subject to one or two exceptional instances where strict statutory civil liability has been preserved, this is generally no longer the case.