Reflections on a grave new world of disproportionate sanctions

Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537

There can be very few civil litigation lawyers unaware of Lord Dyson MR’s judgment in this case.  If any warning of the new post Jackson tough line were needed, it can certainly be found here: stated in blunt terms.  This judgment, and in particular the guidance offered at paragraph 40 and following, is essential reading for anyone wishing to stay in business as a civil litigator. 

There is no need to recite the case facts here as a host of commentators have done so at length.  My own analysis is published by Lexis Nexis in the BPILS Bulletin.  I prefer to reflect on the lessons to be drawn from this case.

CPR 3.9 requires a court to consider the need (i) for litigation to be conducted efficiently and at proportionate cost and (ii) to enforce compliance with rules, practice directions and court orders.  The Court of Appeal held that these considerations are of paramount concern.  This rule change reflects a deliberate shift of emphasis imposed by the post-Jackson civil justice reforms.  Although CPR 3.9 requires the court to consider ‘all the circumstances of the case, so as to enable it to deal justly with the application’ and although this is capable of including the other factors listed in the earlier version of this rule ( e.g. whether the breach was intentional, the applicant’s other conduct, whether relief was sought promptly etc ) the two consideration listed above trump all other factors.

We are given useful guidance on how the courts will apply CPR 3.9 at paragraphs 4o to 46 of the judgment.  If the breach is anything other than trivial then a heavy burden lies on the defaulting party to persuade the court to grant the relief.  Unless there is a very good reason (e.g. serious illness or injury of the party’s solicitor or some other intervening factor) then the presumption will be that the sanction imposed, whether by court order or automatically under the rules, is appropriate and should not be disturbed.  Inadvertent default through oversight or pressure of work are likely to be given scant regard, as these salutary words from the judgment make clear: ‘Solicitors cannot take on too much work and expect to be able to persuade a court that this is a good reason for their failure to meet deadlines’.

It is is worth noting that the Court approved Lord Dyson’s earlier observations in his recent lecture on the Jackson reforms delivered in March 2013, in which he said:

‘The tougher, more robust approach to rule-compliance and relief from sanctions is intended to ensure that justice can be done in the majority of cases. This requires an acknowledgement that the achievement of justice means something different now. Parties can no longer expect indulgence if they fail to comply with their procedural obligations. ...(these obligations)... serve the wider public interest of ensuring that other litigants can obtain justice efficiently and proportionately, and that the court enables them to do so.’

This message may be unwelcome but that is no reason to shoot the messenger.  The Court of appeal’s hands were tied by the recent revisions wrought to the CPR; no other outcome was likely or in the writer’s view perhaps even possible.

 

One of the most subtle (and to many, invidious) changes wrought by the new CPR, has been the redefinition, within the CPR 1 Overriding Objective of what is meant by the term ‘Justice’. This is now appears to be something considerably less than the ideal form envisaged by the ancients or by more recent conventional jurisprudence.  The rights of individuals to a just determination are now subordinated to the perceived greater public good of rigid adherence to the CPR.  Cutting off the hand of a pick-pocket may an effective means changing someone’s behaviour but in a modern civilised society this kind of Procrustean approach is generally thought to be neither proportional, just nor intelligent.  Depriving a litigant of the right to recover his any legal costs for a relatively innocuous non-contumelious bungle, albeit one that wasted a little of the court’s time (hardly the most wicked act!) when other far more proportionate sanctions are available and appropriate, does rather stick in one’s craw; if only for its lack of moderation.  It would be easy to summon up the spectre of a dystopian legal system in which increasingly oppressive sanctions are imposed by manic rule committee gnomes and then exploited by an avaricious privatised Court Service, the latter is apparently under consideration by the present Government, however I prefer to live in hope! 

The lessons to be learnt from this ruling are that those firms that have failed to undertake a post-Jackson risk assessment and to review their fee earner caseloads as well as their training and general competence on CPR rule compliance  run the risk of suffering a nasty costly surprise.  I am reminded of Samuel Johnson’s wry note that the knowledge of an impending penalty does indeed concentrate the mind wonderfully!

There can be no doubt that the courts will now follow this robust (aggressive?) approach to imposing the sanctions.  Two high court judges who adopted a more lenient (proportionate?) approach were named and shamed in this judgment.  Civil litigators operate in a grave new world, one that will show scant sympathy for the pressures that many practitioners face as they seek to increase caseloads to make up for the savage hair cut on recoverable costs.  A wise practitioner friend of mind mentioned that there could be a silver lining to all of this: it is great business for costs draftsmen!

It seems likely that we will see a succession of ill advised pre-emptive strikes by one party or another seeking to win a tactical advantage from an opponent’s procedural discomfiture, perhaps decisively, by raising a non compliance issue and then calling for the court to exercise its powers to impose a draconian penalty.  Yet, they should not loose sight of Dyson’s comments at [26] of his judgment:

‘ The revisions to the overriding objective and to rule 3.9, and particularly the fact that rule 3.9 now expressly refers back to the revised overriding objective, are intended to make clear that the relationship between justice and procedure has changed.  It has changed not by transforming rules and rule compliance into trip wires.  Nor has it changed it by turning the rules and rule compliance into the mistress rather than the handmaid of justice.  If that were the case then we would have, quite impermissibly, rendered compliance an end in itself and one superior to doing justice in any case.  It has changed because doing justice is not something distinct from, and superior to, the overriding objective.  Doing justice in each set of proceedings is to ensure that proceedings are dealt with justly and at proportionate cost. Justice in the individual case is now only achievable through the proper application of the CPR consistently with the overriding objective.’

All very well...But if you equip antagonists with sharp knives, you can hardly complain when they get used, especially if the stakes are high and the going is getting rough; its only human nature.  So there will be few surprises if a bout of vicious satellite litigation, as the excesses of the new regime are tested to the full, becomes Mitchell’s immediate legacy.

England was the correct jurisdiction for an English holidaymaker gravely injured in Western Australia

Stylianou v Toyoshima and another [2013] EWHC 2188 (QB)

This is an interesting case that considers the sort of exceptional circumstance that can justify an English court quantifying a claim that under Rome II would ordinarily fall outside its jurisdiction.

The case facts featured an English national who was rendered tetraplegic in a road accident in April 2009 whilst holidaying in Western Australia.  Proceedings being issued in Australia but which were later stayed. Liability was admitted.

Upon the claimant’s return to the UK she issued fresh proceedings in England.  Her reasons were (i) her condition prevented her from to travelling back to Australia and (ii) that all the remaining issues and evidence concerning her future care and needs lay in this jurisdiction  and (iii) that the lower English discount rate would deliver in real terms a much higher award for her than in Australia.

The judgment is of interest as it considers three issues:

·         Which jurisdiction should apply?
·         Which law should apply?
·         Was the second action an abuse of process, given the advanced state of the proceedings in Australia?

Sir Robert Nelson refused the strike out application and ruled that in the special circumstances of the case, England had jurisdiction.

This case is considered in more detail in Butterworths Personal Injury Litigation Service Bulletin issue 112.

Fraudster sentenced to prison for 15 months

R v McKenzie [2013] EWCA Crim 1544

McKenzie and two co-accused concocted a bogus insurance claim based on a fictitious road accident in which they claimed to have sustained whiplash injuries.  Their claims amounted to £33,000.  They were charged with and convicted of fraud.  The police investigations revealed that D was part of a ring of 70 people who perpetrated these scams and that he had committed 24 similar frauds.

McKenzie was sentenced to 15 months imprisonment and ordered to pay £3,242.00 towards the prosecution costs.  His appeal against sentence was dismissed but the costs contribution order was reduced to £1,500 to take into account his reduced financial circumstances.

This case demonstrates that the law is perfectly capable of protecting insurer’s interests where it is properly applied.  No doubt this prosecution was made possible due to improved intra-insurer co-operation and the use of an anti-fraud database.  Further progress could be made if insurers co-operated with the legal profession in tackling fraud.  Insurers need to be more proactive bringing private prosecutions where the Police don’t.  The insurance industry’s current policy of disparaging genuine whiplash injury victims and portraying minor whiplash injury claims as being synonymous with a fraudulent claim is as unfounded as it is disingenuous.

School not liable for schoolboy’s 'selfie'

Pierce (a child by his litigation friend Annette Pierce) v West Sussex County Council [2013] EWCA Civ 1230

A school authority was not liable for the cut sustained by a nine year old who injured his own hand whilst taking a swipe at another boy.  He missed his aim, landing his blow on the underside of a water fountain that happened to have a sharp edge. 

The trial judge had held that as the edge was sharp it had presented a foreseeable danger and that in the absence of a risk assessment the LEA was liable.  The LEA appealed successfully.

Any school will have numerous edges that might injure a child who strikes them. The school was not liable for this self inflicted injury.

This case is considered in more detail in Butterworths Personal Injury Litigation Service Bulletin issue 112.

No abuse of process by claimant where Coroner’s office advises disposal of post mortem samples

Matthews v Collins and others [2013] EWHC 2952 (QB)

The outcome of this particular decision runs against the general tide due to exonerating circumstances peculiar to the case, which  included the Coroner’s office providing misleading information.  It should be seen as an exception; not the rule. 

It is vital to ensure that in a fatal industrial disease claim that all relevant post mortem evidence is preserved, both documentary and real evidence such as tissue samples.  There have been two recent first instance decisions where a failure to preserve such evidence resulted in the claim being struck out: Weaver (Widow & Personal Representative of Harry L Weaver, deceased) v Contract Services Division Ltd considered [2009] (unreported decision of the Senior Master, 03.09.2009) and  Irene May Currie v Rio Tinto Plc and others [2009] (unreported decision of Master Eastman, 06.10.2010). 

In Matthews, Swift J concluded her judgment with the following postscript:

‘I propose to send a copy of this judgment to the Chief Coroner with a request that he considers advising all Coroners that, in cases where there has been a verdict that a contributory cause of death was industrial disease, any communication to the deceased’s family about the disposal of histological samples should contain advice that, if a claim in respect of the deceased’s death is pending, they should consult their solicitor before giving authority for disposal. 

In the light of what has happened in this case, it would be good practice also for solicitors instructed by claimants in fatal asbestos claims to advise both their clients and the relevant Coroner’s Office that disposal of histological samples should not be undertaken without confirmation from those solicitors that the samples are not required for the purposes of the claim.’

Whilst it is to be hoped that in future Coroner’s officers will be better informed about the need to preserve tissue samples in this kind of case, practitioners would be wise not take any chances. 

A more detailed commentary is Published in Butterworths Personal Injury Litigation Service Bulletin issue 112 and is featured in my Asbestos Fundamentals training for the Association of Personal Injury Lawyers.

Nursery liable for back injury caused by defective cot mechanism

Cooper v Bright Horizons Family Solutions Ltd [2013] EWHC 2349 (QB)

This claim predates section 69 of the Enterprise and Regulatory Reform Act 2013 that removed the actionability of breaches of health and safety legislation.  It is based on breaches of the Provision and Use of Work Equipment Regulations 1998 and the Manual Handling Operations Regulations 1992.

However, it is one of those cases that would probably have succeeded in common law negligence as the trial judge found there had been a real and foreseeable risk of injury to the claimant in stretching over the high sides of a cot to lift out a baby.  The cot was designed for the sides to slide down but the mechanism was broken.

My full commentary and analysis is Published in Butterworths Personal Injury Litigation Service Bulletin issue 112.

Regulation 2 (a) Asbestos Industry Regulations 1931 applied to a visiting lorry driver

McDonald v (1) Dept for Local Government (2) National Grid Electricity [2013] EWCA

Lord Justice McCombe’s judgment in this case rewards careful reading.  This mesothelioma claim resulted in a decision that is notable for three reasons: 

• In the way it illustrates the wide remit of the absolute liability imposed under the 1931 Regulations where there was (a) no foreseeable risk, (b) no breach of duty at common law, (c) no liability under section 47 (1) of the 1937 Act for dust of such a character as was “likely to be injurious” and (d) no infringement of the ‘substantial quantity of dust’ provisions of section 47 (1) of the 1937 Act.

• It is also significant because it seems this claim only succeeded under the 1931 Regulations because the Court of Appeal felt constrained to follow the Cherry Tree ratio, under the Young v. Bristol Aeroplane Co Ltd [1944] KB 718 principle by which the Court of Appeal is bound by an earlier decision.  The Court of Appeal appears to have had some sympathy with the Defendant’s contentions that the Cherry Tree was wrongly decided and that the Asbestos Industry Regulations 1931, as their title implies, are directed to the asbestos industry alone.  Accordingly, it is possible that when this appeal is heard by the Supreme Court, it may disapprove of the Cherry Tree decision and restore a narrower scope to the 1931 Regulations; one that restricts its application to industrial manufacture of asbestos products, as opposed to their use elsewhere.

• Finally, the case provides an almost textbook illustration of the differences, not only between common law and statutory duties of care but also between the qualified / relative duty of care under generic health and safety legislation on the one hand, where the common law concept of reasonable foresight is relevant, and the asbestos specific regulations that impose an absolute duty, on the other.  In the latter case, these regulations are subject only the defence of ‘practicality’, and that only in the sense of that the precautions stipulated should be impracticable to implement from a physical viewpoint and where an appreciation of the risk presented by the exposure to asbestos is not required.

Brief facts:

The claimant was diagnosed with mesothelioma that claimed he had contracted during his employment during his employment as a lorry driver between 1954 and 1959.  His duties had involved collecting pulverised fuel ash from Battersea Power Station run by the National Grid Electricity Transmissions PLC.  It was claimed that he made 68 collections over the four year period.

He alleged that he was exposed to asbestos on his visits to the power station.  His case was that asbestos dust had been regularly released into the air from routine heat insulation maintenance and repair operations undertaken by others on site: preparing the asbestos mixture and in its application as a heat insulator to piping.  However, all this had occurred in locations where he had no reason to be as his role was confined to collecting and removing ash from an entirely different part of the building.  His case was that he had become friendly with some of the workers at the facility and had been free to roam and to socialise whilst waiting for collections.  The claimant’s statement gave the impression that he had been regularly exposed to clouds of asbestos dust. 

The claimant contended that D1, his employer, was liable at common law for failing to take reasonable care for his safety and for failing to warn him of the dangers involved.  His claims against D2 were founded on three separate causes of action:

• Breach of the common law duty of care,
• Breach of s47 (1) Factories Act 1937,
• Regulation 2 (a) Asbestos Industry Regulations 1931.

The trial judge did not accept that the claimant had been exposed to the degree of exposure he claimed.  HHJ Denyer QC.  He found that it had been only modest, on limited occasions and for short periods.

As to the allegation of breaches of the common law duty, he considered Williams v University of Birmingham [2011] CWCA Civ 1242 and held that in the mid to late 1950s...

‘...it would not reasonably have been foreseen that the quantities and intensity of any asbestos dust given off to which this Claimant was exposed would be likely to be injurious or offensive to his health.’

His claim was dismissed at first instance on all three grounds.   However, he succeeded on appeal under Regulation 2 (a) Asbestos Industry Regulations 1931.

If the appeal proceeds to the Supreme Court, the decision that the Court of Appeal felt constrained to make may well be overturned

My full commentary and analysis is Published in Butterworths Personal Injury Litigation Service Bulletin issue 112 and is featured in my Asbestos Fundamentals training for the Association of Personal Injury Lawyers.

DOES YOUR THIRD PARTY MOTOR INSURANCE ACTUALLY COVER YOUR USE?

In October 2011 three Court of Appeal judges delivered, unanimously, an important ruling that limits the potential scope of the compulsory third party insurance cover imposed under Part VI Road Traffic Act 1988.  

The judgment is available on the BAILII website: EUI Ltd v Bristol Alliance Ltd Partnership [2012] EWCA Civ 1267.  

This judgment concludes that although sections 143 and 145 of the 1988 Act require all road users to take out third party insurance that is good for any use the driver might make of the vehicle, there is no corresponding duty on the part of the insurer to supply a policy that is ‘good for any use’ for the benefit of a third party claimant. In EUI this meant that the motor insurer could legitimately exclude any liability to compensate a third party injured by its policyholders deliberate act; in this case the driver's attempted suicide.

Lord Justice Ward delivered the only reasoned judgment in EUI and given his eminence and expertise, it is with great trepidation that I venture to criticise that decision and his reasoning; yet I feel compelled to do so, not least because of the profound implications it has for thousands of victims of motor accidents

Whilst Ward LJ’s judgment reviews the conventional authorities with painstaking and meticulous care, and whilst it gives careful consideration of the European Motor Insurance Directives, it does not in my view provide the correct purposive construction of Part VI Road Traffic Act 1988: one that European law requires. 

What I find interesting is that this detailed judgment appears to overlook nothing.  It considers all the relevant articles within the Directive with scrupulous care and it also takes into account the rulings by the Court of Justice of the European Union as to the scope of the third party motor insurance cover required by article 3 of the Directive.  Indeed the judgment even acknowledges the wide impact that the general application of the holistic approach adopted in C-129/94 Ruiz Bernaldez [1996] ECR 1-1929 would have for a conventional interpretation of our UK national law provision in this area.  In Bernaldez and the line of European authorities that have followed it , the European Court of Justice has repeatedly ruled that a motor insurers’ cannot rely on its policyholder’s breach of policy to avoid its obligation to compensate a third party.  This is of course without prejudice to its contractual rights against its policyholder.  Unfortunately, the EUI judgment sought to confine the binding effect of Bernaldez to sustain a restrictive interpretation of the scope of the insurers duty in this regard. 

What the Court of Appeal’s judgment effectively boils down to is that, save where expressly constrained by the 1988 Act, insurers are free to issue third party motor insurance policies replete with restrictions and limitations as to their scope and cover.  The corollary of this is that where a victim is injured by an ostensibly insured vehicle, in circumstances where the drivers use is not covered by the policy, then the driver is de facto completely uninsured.  I am convinced that this is wrong.  

It cannot be right that motor insurers operating in this lucrative captive market should be entitled to hedge their statutory liability to compensate innocent third parties in this way, so that thousands of innocent victims are forced to go cap in hand to the Motor Insurers Bureau (MIB) and to be subjected to its much less advantageous compensatory regime.

Where a motor vehicle has some insurance in place Community law permits only one exception to the insurers’ obligation to compensate a third party.  This applies where an insurer has exercised its right to exclude liability to compensate a claimant who is not just a willing passenger in the vehicle responsible for causing the injury or loss but who also has actual knowledge that the vehicle has been stolen.  The Court of Justice has repeatedly ruled that as this is the only exception countenance by the Directive to what is a general rule (that third party civil liability should be covered by insurance) and that it is one that should be interpreted strictly.  Furthermore, it has also ruled that the implications flowing from a policyholder’s breach of contract is an  issue confined to the policyholder and insurer. It has also ruled that the MIB should only become involved as a last resort, where their is no insurance at all or where the driver cannot be identified.

The  EUI ratio also undermines the original 1930 Parliamentary concept of providing a uniform compensatory guarantee for victims.  It is clear from the preface in the Road Traffic Act 1930, reproduced below, that the Government’s overriding objective was to provide a compensatory guarantee to third party victims.  I acknowledge that later revisions and amendments to the original statutory provision have had the effect of qualifying the original concept.  However, post 1973 when the United Kingdom joined the European Community, these are unlawful save where expressly authorised by Community law.   

 

Extract from the Road Traffic Act 1930

Leave to appeal this decision to the Supreme Court was granted but, no surprises here, the claim was promptly compromised.  So we are therefore left with the unfortunate legacy of this judgment.  

Given the importance of this issue, as thousands of motor accident victims are potentially affected, I have prepared a detailed point by point critique of the EUI judgment.  This is set out in my latest article in the Journal of Personal Injury Law in issue 3 of 2013: Marking the Boundary.  This article can also be accessed through Lawtel.

These matters have been drawn to the attention of the Department for Transport, which insists that the United Kingdom has fully implemented the European Motor Insurance Directives. Readers will note from my earlier posts that this is now the subject of a European Commission complaint.

THREE WEEK TIME LAPSE TOO REMOTE FOR SECONDARY VICTIM

The Court of Appeal dismissed a nervous shock claim by a daughter of a woman who died from a pulmonary emboli.  It was accepted that this complication was directly attributable to an injury sustained at work three weeks earlier and from which she was making an apparently good recovery.  The daughter did not see the original injury but she was present at her mother's death and suffered PTSD as a result.

In Taylor v A Novo (UK) Ltd [2013] EWCA Civ 194 the Court of Appeal ruled that the three week interval between the original injury and its fatal sequelae broke the continuity necessary to establish legal proximity for a secondary victim. 

My case commentary is published in the Quarterly Bulletin of Butterworths Personal Injury Litigation Service.

PARTY HOST NOT LIABLE FOR BELLY FLOP INJURY

In Cockbill v Riley [2013] EWHC 656 (QB) Mr Justice Bean held that the parents who hosted an end of GCSE party were not liable for the catastrophic spinal injury sustained by one of their daughter’s guests. 

The guest, an exuberant 16 year old, had attempted a flying belly flop into a shallow paddling pool that had been set up in the garden for the party.  Tragically, the boy made a fatal misjudgment that caused him to land on his head.  There was no evidence to suggest that he had slipped on wet grass.  A moderate amount of drink had been supplied and up to this point, no one had attempted any dangerous stunts of this kind beforehand and neither had any of the guests been overly boisterous.

Bean J commented that allowing the use of a paddling pool at a party attended by 16-year-old friends of the occupier's children does not of itself create a foreseeable risk of significant injury or justifies a formal risk assessment.

My case commentary is published in the Quarterly Bulletin of Butterworths Personal Injury Litigation Service.

EUROPEAN DIRECTIVE SAVES STEEPLECHASE JOCKEY CLAIM

In Hide v The Steeplechase Company (Cheltenham) Ltd and others [2013] EWCA Civ 545 a professional jockey who sustained pelvic and head injuries when his horse stumbled just as it landed after jumping a hurdle in a steeplechase at Cheltenham.  He struck his head on the post of a nearby rail.  He sought compensation from the course owners and organizers.It was alleged that the rails and fencing were positioned too close to the hurdles for safety.

His claim failed at first instance but succeeded on appeal even though he could not establish either (i) that the layout design or maintenance of the course had been negligent or (ii) that there had been a breach of statutory duty - applying the ordinary and natural meaning of Regulation 4 of the Provision and Use of Work Equipment Regulations 1998.  

The Court of Appeal applied a purposive construction of the Framework Directive (89/391/EEC) and the Use of Work Equipment Directive (89/655/EEC) which effectively imposed strict liability in the way it impacted on the interpretation of our domestic regulations regardless of the fact that the hazard presented by the fencing was not reasonably foreseeable.  

This sort of claim would fail in a post s69 Enterprise and Regulatory Reform Act 2013 world (for accidents on or after 1 October 2013), as henceforth it will be necessary establish a breach of the common law duty of care [See my earlier blog: A World Turned Upside Down]. 

A more detailed commentary on this case is published in the Quarterly Bulletin of Butterworths Personal Injury Litigation Service.

ROUNDABOUTS – BIG OR SMALL – SAME RULES APPLY

View of the junction from Starks' perspective

In Starks v Chief Constable of Hertfordshire [2013] EWCA Civ 782 the claimant was hurt when his car was hit on the driver’s side by a police car as he was turning right at a road junction.  This junction would have been a conventional ‘T’ junction but for the fact that a mini-roundabout had been installed.  At first instance, the trial judge allocated liability 45/55% in the defendant’s favour. The trial judge had found that the other car, a police car, had been travelling too fast but well within the 40 mph speed limit for the stretch of road, as it approached the road junction where the accident occurred.  He ruled that Mr Starks should not have moved onto the roundabout when he could see the police car approaching from his right. 

This allocation of liability was criticised by the Court of Appeal. It was more influence by the fact that the police woman driver had attempted to drive straight across the mini white painted roundel at the junction; almost as thought it had not existed. She would have needed to slow down to 20 mph to have circumnavigated the roundel.  This would have reduced the severity of the damage and the injury.  It found the policewoman 65% to blame for the accident. 

Underhill LJ noted that Paragraph 188 of the Highway Code provides that the same rules apply to mini-roundabouts as to normal roundabouts.  In particular, the Code states that vehicles ‘MUST pass round the central markings’.  He deduced that paragraph 188 requires (i) drivers to go round not only the solid roundel but the circles around it and (ii) that driving over the markings is clearly a breach of the Code. 

So the lesson here is that however much we may regret the increasing prevalence of these 'poached egg' roundabouts, they have been installed for a purpose: as a traffic calming / road safety measure.  Although they may look insignificant, we are expected to slow down and to go around them.  We breach the highway code if  we choose to disregard them.

My detailed case commentary on Starks v Chief Constable of Hertfordshire and my analysis of the Court of Appeal’s approach to reversing first instance findings of contributory negligence is published in the Journal of Personal Injury Law which it can be accessed through Lawtel.  A shorter case commentary is published in the Quarterly Bulletin of Butterworths Personal Injury Litigation Service.

7 YEAR DELAY DID NOT DEFEAT CLAIM

In Nicholas v Ministry of Defence [2013] EWHC 2351 (QB), Judge Burrell QC exercised his discretion under s 33 Limitation Act 1933 to allow a claim on behalf of the estate of the deceased who, during her lifetime, had been crippled by the onset of asbestosis in her old age.  She knew her respiratory illness had been caused by her exposure to asbestos from her wartime work assembling gas masks. She acquired this knowledge more than four years before her death from an unrelated condition.

Key factors influencing the court's decision to disapply the statutory limitation period of three years were: (i) the MoD had conceded liability and could establish no prejudice to the cogency of the evidence from the delay, (ii) the victim had not been well enough to issue proceedings, (iii) following her death, the MoD were informed relatively promptly of the prospective claim, (iv) a moratorium had been agreed between the solicitors within a year of the victim’s death and this was in place up to the date proceedings were issued and (v) no prejudice occurred by reason of this additional delay.

My detailed case commentary on Nicholas v MoD and my review of the relevant case law and considerations is published in the Journal of Personal Injury Law in issue 3 of 2013 and it can be accessed through Lawtel.

EX TURPI CAUSA

Drug dealing

We are witnessing a spate of inappropriate  ex turpi causa defences.  Under our common law the courts have a policy that is intended to prevent a criminal from recovering compensation where the loss or injury complained of is inextricably connected with and caused by his own criminal act; its common sense really. This defence is commonly associated with the Latin maxim: ex turpi causa non oratur actio; also, more rarely with ex dolo malo non oritur actio.  In recent years ex turpi causa tends to be routinely cited by defendants whenever a claim is associated with some kind of criminalily.

The ex turpi causa policy is not about punishing miscreants.  Criminals enjoy the same civil rights as the law abiding; we abolished outlawry a while ago.  

Ex turpi causa seeks to avoid the perversity of compensating someone for the direct effects of their own crime.  So in Delaney v Pickett Pickett [2011] EWCA Civ 1532 the defence failed to prevent a passenger (who happened to be involved in drugs dealing) from suing his associate when he injured him through his negligent driving of the vehicle that was transporting their stash of marijuana to the next deal. Their criminal activity was not the cause of the accident; rather, it was the defendant’s negligent driving.  

However, in Joyce v O’Brien and Tradex 2013 EWCA Civ 546, the Court of Appeal upheld this defence against a thief who fell off the back of his uncle’s get-away van.  Joyce had been holding on to a set of ladders that he and his uncle had just stolen, whilst at the same time trying to cling on to the back the van as it sped off from the scene of the crime.  He fell off when his uncle executed a sharp turn at speed and sadly Joyce sustained grave head injuries.  The Court of Appeal rightly took the view that ex turpi causa applied here.

My detailed case commentary on Joyce v O’Brien and Tradex is published in the Journal of Personal Injury Law, where I trace the roots of this defence back to Lord Mansfield’s judgment in Holman v Johnson (1775) 1 Cowp 341.  This is one of those judgments that have withstood the test of time well as it remains just as valid today as it did in the 18^th Century.  My commentary explains the principles underscoring this policy defence, the key ingredients necessary for success as well as offering some practical tips.  The JPIL commentary can also be accessed through Lawtel. My earlier commentary on Joyce can also be accessed through Lawtel.

VALUING LOSS OF USE OF A BUS

In West Midlands Travel Ltd v Aviva Insurance UK Ltd [2013] EWCA the Court of Appeal ruled that the conventional ‘standing charge’ basis used for quantifying the loss of use of a commercial vehicle was not appropriate for fleet vehicles that can be replaced by others held in reserve.  Under the traditional 'standing charge' approach, the damages include a notional sum for various overheads notionally associated with the operation of the vehicle, including even the cost of running its staff canteen!   

West Midlands operated a large number of buses. It was unable substantiate any actual loss of profit as it always had a number of vehicles kept in reserve.  Rather than adopt the traditional kitchen sink approach, the court decided to base its award on an amount equivalent to the interest on the notional capital value of the vehicle plus an allowance for depreciation.  This reduced the loss of use claim by two thirds!

My full case commentary will be published in the Autumn edition of BPILS Quarterly Update.

COMPLAINT LODGED AT THE EUROPEAN COMMISSION

We have reached an impasse with the Department for Transport in my long running campaign for wide ranging reform to the Road Traffic Act 1988 as well as the MIB Agreements.  The DfT has decided to continue with its limited reform regardless. So I have today submitted a detailed complaint to the European Commission.

My infringement complaint identifies a large number of potential breaches of Community law, including:

• Unlawful geographic and technical restrictions to the wider scope of the insurance cover required;
• Inappropriate allocation and treatment of compulsorily insured claims as uninsured claims under a more onerous scheme;
• Wrongful exclusions of liability;
• Wrongful deductions made from a claimant’s full compensatory entitlement in untraced and uninsured driver claims;
• Extensive failures to comply with the Community law legal certainty principle and the principles of equivalence and effectiveness.

I argue that the United Kingdom’s failure to meet the minimum standards of compensatory protection required under Community law is systemic: one that encompasses its Legislature, its Judiciary and its Executive, including the Motor Insurers Bureau, which I also contend to be an emanation of the United Kingdom state.  I am convinced that unless the Commission and / or the Court of Justice intervene, this unsatisfactory state of affairs will continue indefinitely.

But don’t hold your breath!  

The complaint might not be accepted.  The European Commission also has a complete discretion on whether to take any action and the process can take years.  I have asked the Commission to try persuasion first, rather than compulsion.  

MINISTER SETS A COLLISION COURSE WITH EUROPE

The DfT is on a collision course with European Community law

In a surprise twist to the long running saga over the UK’s failure to fully implement the European Motor Vehicle Insurance Directives, the Department for Transport has issued a bold statement today in which it maintains that the MIB Agreements do in fact ‘fulfil the UK’s obligations under EU motor insurance law’.  It also maintains that the proposals, set out in its consultation paper back in February, was ‘the result of a full review following discussions with the MIB over the past three years’.

The DfT has given a strong indication that it does not intend to change course. 

However the DfT has confirmed that it will not adhere to its original plan of publishing a final report this month.  It says that this is because it needs to enter into detailed discussions with the MIB. So something must have changed, even if we are not invited to share the secret! 

The DfT now plans to announce its final proposals later this autumn.

The DfT’s statement means that it is at loggerheads with those who are calling for extensive reform in this area.

More news will follow shortly.

DEPARTMENT FOR TRANSPORT DELAYS REFORM

The Rt Hon Stephen Hammond MP
Parliamentary Under Secretary of State for Transport

I understand that the Department for Transport, which had planned to publish a response to the consultation process this month, is about to announce a postponement to later this Autumn.  

The Minister's consultation paper, Review of the Uninsured and Untraced Drivers Agreements was published on 27 February this year.  It was criticised, here and elsewhere, for its limited scope. 

The Minister  received a number of detailed consultation responses advising him that his proposals were badly flawed.   This is because they fail to address the many long-standing defects in our national law implementation of European Community law.  These require the UK to conform to certain minimum standards concerning (i) the insurance cover for civil liability arising out of the use of motor vehicles and (ii) the compensatory protection afforded to victims.  

Although the Department has received very detailed submissions that exhaustively explain these problems,  itemising each infraction complained of, and setting out proposals for remedying these defects, no reaction to  has been forthcoming so far.

The Department needs to appreciate that unless the Minister gives a clear and unequivocal commitment to the wide-ranging reform that is required under Community law and that this is also accompanied by a sufficiently detailed explanation of the proposed reforms, together with an acceptable time-scale for implementing the reform process, then the Department is likely to be the subject of an infringement complaint to the European Commission.  Time is not on his side.

HEAR NO EVIL, SEE NO EVIL; SO NOTHING TO TELL?

I recently served a detailed request for information under the Freedom of Information Act 2000 on the Department for Transport.  I judged this necessary to enable those of us who are campaigning to reform our national law provision for victims of motor vehicles to contribute to a proper assessment of the impact that our defective national law provision is having on ordinary members of the public who are affected.

Unfortunately the Department’s response failed to provide most of the statistical data I asked for.  The fact that the Department does not have a clue as to how many road accident victims fall foul of the numerous exclusions and limitations of liability that pepper Part VI of the Road Traffic Act and the two MIB Agreements is, in itself, highly informative.  It suggests that scant consideration can have been given on the need for the imposition of so many arbitrary strike out clauses and other departures from the minimum standards of compensatory guarantee required under European Community law.  It demonstrates that the Department is unaware of the impact that these unlawful provisions have on the individuals that the compensatory guarantee scheme is supposed to protect.  As my information request indicated, this ‘is the kind of information that a responsible department would be likely to possess in order to properly discharge its duties of supervising and monitoring the activities of an outsourced service provider, particularly where they concern the justiciable rights of individuals’.

At present, the Department appears to be lumping the 1.2 million ‘uninsured’ drivers that plaque our roads into a single homogeneous group.  They have no idea how many of these comprise (i) drivers of cars with absolutely no insurance in place; (ii) hit and run drivers (who might have had some) or (iii) drivers of vehicles where there is some cover in place but the insurers are arguing (often wrongly) that the policyholder’s breach of contract entitles them to treat the claim as though it were an uninsured driver claim. 

The Department for Transport say they are now seeking some of this information from the MIB but that because the MIB are not a government department, the Freedom of Information Act 2000 does not apply. This ignores the fact that whilst  the MIB is a private company limited by guarantee it is also just as clear from its own constitution and from the terms of the MIB Uninsured and Untraced Drivers Agreements that it is under the Department’s control and supervision. Accordingly such data as the MIB possess that relates to these issues has always been within the control of the Department to access and disclose.  The Department has been invited to reconsider its position.

DfT MINISTER'S PROPOSALS FLOUT CABINET INITIATIVE

The Department or Transport’s proposed reforms to the MIB Uninsured and Untraced Drivers Agreements not only fail to meet the minimum standard of compensatory protection required by European law for millions of premium paying drivers and other members of the public but they also flout the Cabinet Office’s recent Good Law initiative as well as several important Rule of Law principles.

Click here to read the New Law Journal’s online news item.

Click here to read my New Law Journal article: Good Law?

The Minister has said that he will announce his final proposals by the end of July.  The DfT has so far declined to enter into a dialogue with those calling for more wide ranging reform in this area.

MoD LOSES THE ABILITY TO HIDE ITS NEGLECT

‘Where-ever law ends, tyranny begins’

John Locke

 Last month the lawyers representing a number of soldiers killed or injured during active service won a remarkable victory for the rule of law.  The claims arose out of three separate incidents spanning the initial Iraq conflict and its subsequent occupation.  In the first, a Challenger tank fired on another by mistake in the dark during the initial combat operations.  The other two claims featured military patrol vehicles, known as 'Snatch Land Rovers’ that were hit by improvised explosive devices during what has become known as 'The Insurgency'. 

The Challenger claims are founded on common law negligence, on the basis that the Ministry of Defence failed to provide suitable identification and recognition equipment and that it failed to provide adequate pre-deployment training.  All but one of the Snatch Land Rover claims were based on the contention that the Ministry of Defence had failed to take suitable measures to protect the lives of its servicemen, in circumstances where it ought reasonably to have done so, in the light of the real and immediate risk to life of soldiers required to undertake patrols in these lightly armoured vehicles, in breach of article 2 European Convention on Human Rights. One of these claims also included similar allegations founded in negligence.

In Smith & Ors v Ministry of Defence [2013] UKSC 41 the claimants successfully resisted a preliminary strike out application by the Ministry of Defence.  The Defence was based on a number of technical and public policy grounds including: (i) that the article 2 of the ECHR right to life did not apply to members of the armed forces serving abroad, (ii) that all the claims were barred by combat immunity and (iii) that in all the circumstances it was neither fair just nor reasonable for the MoD to owe a common law duty of care. 

On the jurisdictional issue: the Supreme Court considered a line of rulings from the European Court of Human Rights in Strasbourg to the effect that although the application of the ECHR is indeed generally restricted to the territory of member states, it can in exceptional circumstances be extended beyond its normal geographical constraint.  It can even encompass foreign territory that is under the military control of a contracting state.  This was held to apply in Öcalan v Turkey (2005) 41 EHRR 985 where a number of Turkish soldiers captured and then killed some Iraqi shepherds. 

The Supreme Court were unanimous in ruling, for the first time, that the jurisdiction of the ECHR is capable of extending to cover a contracting state’s treatment of its own armed forces serving abroad.  This ruling is subject to the caveat that the article 2 right to life must take into account the relevant context of the complaint and it cannot impose an impossible or disproportionate burden on the contracting state. 

However, the Supreme Court was divided on whether to strike out the claims on the basis of combat immunity or whether, given the operational circumstances, it was fair just or reasonable to impose a duty of care on the MoD.  

The public policy imperative behind combat immunity is self evident: no state can conduct dangerous military operations effectively if in the exigency of battle its soldiers believe that every operational and tactical decision will expose them to the risk of civil litigation.  However, as Mulcahy v Ministry of Defence [1996] QB 732 and many earlier authorities confirm, combat immunity is an exception to the basic rule of law and as such it is something that should be applied sparingly and kept within narrow confines.

The Defence also relied on the line of authorities emanating from Hill v Chief Constable of West Yorkshire [1989] AC 53, to contend that just as there are strong public policy grounds for holding that the Police do not owe members of the public a duty of care in the execution of their duties, the same precept should apply to servicemen in active operations of this kind. 

A majority took the view that all these matters were highly fact specific issues which could not be disposed of at a preliminary hearing without consideration of the evidence.  Consequently, the Defendant’s strike out application was dismissed.

The claimants are not complaining about being exposed to combat risks and other unavoidably dangerous operations.  Instead they allege that the Ministry of Defence exposed its servicemen to a range of unnecessary and preventable risks:  caused by lack of suitable training and / or the provision of inadequate equipment as well as from the inappropriate assignment of ‘Snatch Land Rovers’ in situations where improvised explosive devices were known to be deployed.  Although these claims can now proceed, the final outcome is far from certain.  

It seems that much will turn on the chronology of events and when, precisely, each act of negligence or breach of duty is alleged to have occurred.  Lord Hope put it this way:  ‘It will be easier to find that the duty of care has been breached where the failure can be attributed to decisions about training or equipment that were taken before deployment, when there was time to assess the risks to life that had to be planned for, than it will be where they are attributable to what was taking place in theatre.’ [99].  In his dissenting judgment, Lord Mance identified significant problems with this approach [122 to 127].  These issues will no doubt be considered at length if and when the claims proceed to the main trial on liability.

However there is one permanent legacy from this ruling. The Ministry of Defence can no longer complaisantly rely on public policy to dismiss, out of hand, accusations of grave and culpable neglect of its servicemen.  These claims must now be subjected to proper judicial scrutiny and I think that there will be many who welcome this. 

Meanwhile, the Ministry of Defence appears destined to continue to squander gargantuan sums in its procurement of excruciatingly expensive white elephants, seemingly with impunity.  Such profligacy must have had a part to play in the Ministry’s failure to equip its Challenger tanks with vehicle identification equipment or its Snatch Land Rovers with electronic IED countermeasures in Iraq.  It will be recalled that other easily preventable tragedies have resulted from the absence of some very basic items of kit: such as air conditioning or body armour.  Whilst it is clearly not in the national interest to impede our armed forces with the threat of civil liability if things should go wrong in the preparation for or conduct of active operations against the enemy, it must nevertheless be in the public interest to expose systemic failings in procurement as well as failings on the ground to properly train and equip our servicemen, especially where these blunders are responsible for lost lives and grievous injury.  

Controversy has dogged the MoD's procurement of  two vast aircraft carriers.  

Electronic Counter Measures against IED

EMPLOYERS' LIABILITY AFTER SECTION 69

'Was I deceived, or did a sable cloud 

Turn forth her silver lining on the night?' 

John Milton, Comus, 1634

As my previous post acknowledges, in A world turned upside down, section 69 of the Enterprise and Regulatory Reform Act 2003, abolishes civil liability for breaches of statutory health and safety regulations conferred under section 47 of the Health and Safety at Work Act 1974.  This will deny many injured victims the compensatory redress they are currently entitled to if they cannot establish and prove their claims under ordinary common law negligence principles.

Some have argued that the effect of section 69 is to ‘put the health and safety clock back to Victorian times’. Fortunately, the reality is not nearly so bad and I have four main reasons for thinking so.  

The first has to do with the very essence of the common law as a flexible and living concept.  It has evolved considerably since the nineteenth century.  It took three giant strides beginning with Lord Atkins ‘neighbour’ principle from Donoghue v Stevenson [1931] UKHL 100.   Next came Mr Justice Swanwick’s test for determining the standard of foresight expected of a  ‘reasonable and prudent employer’ in Stokes v Guest 1968 [1968] 1 WLR 1776:   

     “…the overall test is still the conduct of the reasonable and prudent employer, taking positive thought for the safety of his workers in the light of what he knows or ought to know; where there is a recognised and general practice which has been followed for a substantial period in similar circumstances without mishap, he is entitled to follow it, unless in the light of common sense or newer knowledge it is clearly bad; but, where there is developing knowledge, he must keep reasonably abreast of it and not be too slow to apply it; and where he has in fact greater than average knowledge of the risks, he may be thereby obliged to take more than the average or standard precautions”.

Then, for those unusual cases where no obvious precedent exists for a duty of care, there is the tripartite test set out Caparo Industries v Dickman [1990] UKHL 2. 

Another reason for optimism has to do with the fact that the concept of reasonableness, which lies at the heart of common law tort of negligence, is a contextual phenomenon.  What is ‘safe’ or ‘reasonable’ is to be judged by the standards of the time.  Consequently, as our understanding of the causes of industrial disease and accidents increase, so too does the generally acceptable tolerance of justifiable risk diminish.  These factors influence the evolution of the common law standard of care to be expected by the reasonable and prudent employer.  Equally relevant are the improved standards of health and safety imposed on the United Kingdom by the European Community.  An obvious example is the European Framework Directive (89/391/EEC) and the plethora of Regulations that transpose this and other European Directives, starting with what became known as the ‘Six Pack’ but including much later initiatives such as the Work at High Regulations or the Construction (Design and Managements) Regulations 2007.  Although the vast majority of these regulations will not attract civil liability where they are breached, thanks to section 69 of the Enterprise and Regulatory Reform Act 2013, the set new and often heightened standards.  Similarly, the Health and Safety Executive’s Guidance (now freely downloadable online) impose a high standard of care that any court applying a common law test can hardly ignore.  So with the loss of strict and absolute liability for breaches of statutory health and safety regulations, we may yet see a new emphasis given to Mr Justice Swanwick’s test so it remains as relevant to a post s69 Enterprise and Regulatory Reform Act employer as is does now. 

A third reason for cautious optimism is that whilst s69 does do away with the statutorily imposed reversal of the burden of proof, there will nevertheless be occasions when a claimant will be able to establish on common law principles a prima facie case against an employer and thereby to effectively impose a reversal of the burden of proof that way.  Practitioners are well used to working with this concept, in its statutory manifestation such as in the oft cited precedent of Larner v British Steel Plc [1993] IRLR 278.  They will now be encouraged to explore the full extent to which res ipsa loquitur ,its common law cousin, can be applied to a work place accident claim.  Take for example, a case where an employer has a long history of similar incidents or injuries that were reasonably preventable.  If a claimant is injured in almost identical circumstances that were (i) under the employers effective control and (ii) where the claimant is not in a position to know precisely what act or omission the employer is responsible for and for which no other plausible explanation exists, then where a court concludes that what happened is more consistent with negligence than not, it may may well find that the circumstances raise a rebuttable presumption of negligence against the employer.  There may also be occasions where, even absent a culpable track record, the circumstances of the accident are such that in the absence of any alternative explanation the circumstances are more consistent with an employers’ negligence than not so as to raise an inference of negligence.  Every law student will remember the barrel of flour case: Byrne v Boadle [1861-73] All ER Rep Ext 1528.  However, it will readily be seen that the scope of this common law evidential rule has a narrower application the statutory imposed alternative.

Finally, there is the hope that the judiciary, who will be sensitive to the new balance of advantage introduced by s69 will develop the common law where it can.  After all it was the judiciary that coined the equitable maxim: where there is a right there must be a remedy. Perhaps this is not too fanciful a hope.  One need only recall to mind the extraordinary development of the doctrine of vicarious liability in recent years;  to cover sexual abuse by priests.

Furthermore, for those practitioners who are ready and prepared to fully utilise the extensive armoury of tactical weapons contained within the Civil Procedure Rules and Pre action protocols, as well the new opportunity presented by qualified one way cost shifting, there is every chance that a great deal of profitable work will be gained.  It seems almost inevitable that even more employers’ liability claims will be contested and fall out of the extended portal.  It is just conceivable that by 2014 some will think that they have never had it so good!

A WORLD TURNED UPSIDE DOWN

'They count it a sin, when poor people come in.'

From a 17th Century ballad, A world turned upside down

Many view s69 of the Enterprise and Regulatory Reform Act 2013, which will abolish the automatic right of action for breaches of statutory health and safety laws, as an unnecessary and regressive step.  Equally clear is the unfortunate trend of this and previous governments of introducing reforms that appear to motivated less by informed inquiry than by political invective and grandstanding. 

Take for example the Labour Government’s obsession with the ‘perception of compensation culture’.  The government was reacting to a series of anecdotal reports, usually originating in the tabloid press.  These featured various instances of imbecilic ‘risk adverse’ behavior by various minor officials.  Apparently, adverse risk assessments were increasingly being cited by the over officious or credulous to justify absurd decisions to ban or cancel even the most mundane and ordinary time honoured pastimes.  This was thought to be a reaction to the threat of being sued by an increasingly litigious society.  We were told that this ‘compensation culture’, or the ‘perception’ of it, threatened to curb the enjoyment of many innocent and everyday activities.  It decided that something had to be done, or at least, something had to be seen to be done. 

The Government’s response was to enact section 1 of the Compensation Act 2006.   This empty gesture was intended to curb the deterrent effect of litigation on ordinary people’s decision making.   All section 1 actually achieved was to petrify in legislative form an evolving principle that the House of Lords had recently formulated with greater eloquence and clarity in Tomlinson v. Congleton Borough Council [2003] UKHL 47. 

The same phantasmagoric menace has lingered on to haunt our present government, this time on health and safety issues.  In the opening passage to his 2010 report, Lord Young declared: ‘I believe that a ‘compensation culture’ driven by litigation is at the heart of the problems that so beset health and safety today’[1].  However the Government’s own statistics undermined this assertion: they showed that far from employers liability claims numbers increasing, they were in fact reducing.  That did not deter the Prime Minister from appointing Lord Young, as his ‘Enterprise Czar’ to tackle this issue.  Then in 2012 the Prime Minister announced a startling New Year’s resolution: he vowed to ‘kill off the health and safety culture for good’[2].  

It is worth noting that the latest Department for Work and Pensions’ Compensation Recovery Unit data actually shows a reduction of just over 7% in the number of employers’ liability claims from a high of 98,478 in 2006/2007 down to  91,115 in 2012/1013[3]. 

As every personal injury practitioner knows only too well, this Government has rushed through swathes of reform to our civil justice system with a missionary zeal, apparently in the belief that one can have too much of a good thing and that if ordinary people have access to justice that is too readily available, this is something that should be curbed.  Apparently, fundamental rights now come with a price tag.  Measures included the ineffective ban on referral fees.  This was intended to curb all those annoying adverts and unsolicited calls and texts and to deliver substantial savings in legal costs; only it didn’t. It is common knowledge that the ban can circumvented with ease by claims management companies and lawyers: through alternative business structures and other tactical machinations.  All the Government achieved was to introduce a series of anti-competitive measures that reduce consumer choice for legal services.  Another disincentive to litigation was the dismantling of legal aid and ending the existing policy of awarding a successful party a full recovery of their reasonable and necessary legal costs and expenses under Legal Aid Sentencing and Punishment of Offenders Act 2013.  Henceforth, claimants must fund part of the cost of pursuing their claim from their compensatory entitlement.  These measures clearly work to the advantage of liability insurers and defendants at the expense of claimants who are ultimately denied a full recovery of damages. 

What s69 of the Enterprise and Regulatory Reform Act 2013 will achieve it abolish the civil right of action for breaches of health and safety regulations.  It should be remembered that a breach of statutory duty is only actionable where someone has actually suffered loss or injury caused by that breach.  What the soon to be amended section 47 (2) of the Health and Safety Act 1974 presently achieves is to confer a right of action for a breach of statutory duty where loss of damages is caused thereby. 

Section 47, in conferring the right of action,  has nothing to do with providing windfall gains to the opportunistic.  Nor does it, of itself, impose an absolute or strict liability on an employer.  Indeed the number of instances where our health and safety regulations do impose absolute liability are exceedingly rare indeed.  Furthermore, judicial attitudes towards strict has recently become more cautious and restrictive.  There is a tendency to impose at least a degree of culpable foresight so as to avoid the injustice of holding an otherwise completely faultless employer liable.  Take for example Supreme Court’s ruling in Baker v Quantum Clothing [2011] UKSC.  There, a majority ruled that the duty imposed by section 29 Factories Act 1961 to ensure that a place of work is ‘safe’ did not impose an absolute and unfaltering standard of safety.  The duty is qualified by what the reasonable and prudent employer at that time would have understood to have been safe. 

It was open to the Government to qualify by reference to reasonable practicability all strict liability health and safety legislation or to make other discrete adjustments, such as to extend the defence of reasonable practicability so that it applied uniformly across all health and safety strict liability claims.  This would have been in keeping with its own expert’s recommendations.  It will be recalled that Professor Löfstedt’s report on health and safety could find no case for radically altering current health and safety legislation[4].  Instead the Government chose to ignore this and to throw the health and safety baby out with the bathwater. It has determined on abolishing completely the statutory actionability of breaches of health and safety regulations. 

One of the justifications relied on by the Government was the perceived need to ease employers’ fears of being sued and to save them the cost of over compliance.  This is muddled thinking.  Surely the sensible way for any employer to address such concerns is to undertake a suitable and proportionate risk assessment and to implement suitable measures to protect his employees health and safety by either avoiding the risk completely or minimising it.  If a business is foolish enough to squander resources on ineffective or unnecessary measures, then that suggests that their health and safety risk assessments are flawed. 

Unfortunately section 69 seems likely to compromise the effectiveness of our health and safety legislation because it removes an important financial disincentive to illegal conduct, at the very time when the other health and safety sanctions and controls are increasingly compromised due to lack of funding.  It is well known that the number of Health and Safety Executive inspections and prosecutions have declined sharply in recent years.  

Another consequence of section 69 is that it will increase the evidential burden on a victim of establish a claim under the common law; tipping the balance of advantage in any litigation decisively in the employer’s favour.

It seems that we live in a diminished age, if as now, successive Governments view with intrinsic suspicion the ability of ordinary people to freely assert their legal rights under the Rule of Law through the courts system.  Somehow a citizen’s entitlement to the protection afforded by health and safety laws, once perceived as a virtue, is now thought by some to be some kind of impediment to legitimate business interests.  Be that as it may, s47 of the 1974 Act is destined to be turned on its head from 1 October 2013.  The amendment, introduced by section 69 of the Enterprise and Regulatory Reform Act 2013, will remove the automatic right of action that s47 confers for breaches of a health and safety statutory duty. 

Does anyone seriously believe that this will make an iota of difference to those employers, school heads and hospital administrators who cannot see the wood for the trees?   Surely if a manager is not equipped to apply a common sense and proportionate approach to health and safety risk assessment, isn’t the logical response to retrain or replace them?  Sadly, the legacy of this ill-conceived reform legacy lies in a different area.  It will deny a large number of injured victims the redress they currently enjoy unless they are able to establish their claims under more stringent common law principles.  For those lucky enough to be able to establish a common law claim, this will come at the expense of increased legal costs.  For most claimants, these costs will have to be funded in part from the compensatory award.  It seems likely the s47, as amended, will act as a positive disincentive for the less scrupulous.  If the likelihood of civil liability is significantly reduced along with the risk of prosecution, then some employers will be motivated to ask: why do we need to bother with health and safety at all?

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[1] Common Sense and Common Safety, Lord Young, October 2010

[2] David Cameron’s announcement, reported in the Guardian, 5 January 2012.

[3] See Department for Work and Pensions website: http://www.dwp.gov.uk/other-specialists/compensation-recovery-unit/performance-and-statistics/performance-statistics/

[4] Reclaiming health and safety for all: an independent review of health and safety legislation, May 2011