'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?
[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
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