Sources and Types of Law Relating to Health and Safety

Sources of law

The law is made in two different ways, i.e. there are two sources of law – common law or statute. Statute law takes priority over common law and may be enacted to address a perceived inequity in the common law. Common law often aids the interpretation of statute law as terms are debated in the courts based on the facts of a real case.

Statute law

Or legislation, is law made by Parliament as an Act of Parliament, or a statutory instrument (e.g. Regulations) made under powers within an Act of Parliament.

Common law

Historically this meant law that was not local but was common to all of England. More usually the phrase means law that is not the result of legislation. Court decisions establish law through a system of precedents.

Types of law

The law is divided into two branches (or types), civil and criminal which have different purposes. Any given event may give rise to both civil and criminal consequences.

Criminal law

If minimum legal standards are not met the enforcing authority may prosecute the offender in the criminal courts.

Civil law

If an individual suffers loss (injury / ill-health or death) the victim, or his dependants, may sue for damages in the civil courts.

Civil and Criminal Consequences

Consider an accident where an apprentice carpenter cuts off his fingers using an unguarded band saw. He may well take a civil action against his employer, blaming the employer for negligently causing his injury and seeking compensation (damages) for his loss.

A criminal prosecution may also be taken by the HSE (assuming the accident was reported, or the HSE was otherwise made aware). The purpose of the prosecution would be to punish the employer (through a fine and/or imprisonment) for failing to comply with health and safety legislation (the guarding requirements of the Provision and Use of Work Equipment Regulations – PUWER).  The key differences between civil and criminal law are shown below:

Civil Law Criminal Law
Tort e.g. negligence Crime e.g. breach of Health and Safety at Work Act or specific Regulations
Civil wrong Criminal offence
Wrong to an individual Offence against society
Action taken by injured party Prosecution taken by enforcing authority / Crown Prosecution Service
Action taken by injured party Tried in criminal court
Determines liability Determines guilt
Loss necessary for action Loss not necessary
Seeks compensation for loss Seeks to punish for breach of law
Liability proved on the “balance of probabilities” Guilt proven “beyond all reasonable doubt”
Can be insured against (ELI is generally compulsory) Cannot be insured against