A comparative note.
Long ago Israel has adopted the English approach
and under BSD apparently imposed strict liability in workplace claims for
breach of safety regulations. In practice, however, tortl liability has been
imposed by the SC only where the employer was found
negligent. Along the same line, criminal law was revised so
that criminal liability is denied where the employer establishes
reasonable care. That makes sense: in the absence of even objective fault - how
can criminal liabily be justified?
Israel Gilead
Hebrew U
----- Original Message -----
Sent: Tuesday, September 11, 2012 4:58
AM
Subject: Re: 'Strict liability in
workplace claims - the end of the line?'
Dear Steve;
Thanks, very interesting for those us interested in the breach of
statutory duty area! I agree with the comment at the linked blog, strict
liability in this area has been around for well over a century, and this is a
bad decision. What will be interesting will be to see how they do it.
Liability under the HSW Regs & associated regs is only strict for civil
actions because that is the way that the criminal provisions are worded.
Presumably they could take one of two broad approaches- (1) treat civil BSD
liability separately to the criminal obligations, and somehow provide that a
civil BSD action will be subject to a defence of "reasonable care" or the
like; or (2) redefine the standard required under a whole raft of criminal
provisions. Of the two bad options I think (1) would be the least bad, because
at least that would not water down the standard of care required of employers
etc under the criminal law. But I suspect they will tend towards option (2)
and water down safety requirements across the board. That is going to require
some interesting drafting.
Regards
Neil
On 11/09/2012, at 5:53 AM, Hedley, Steve wrote:
Perhaps largely of UK interest, but possibly broader:
"The Government announced today that it will be introducing
legislation before Parliament as early as next month amending the Health and
Safety at Work Act to abolish strict liability for breaches of Health and
Safety regulations. If the legislation is passed, employers will only be
liable where fault is proved ..."
[Andrew Spencer, piBlawg,
10 September]
Steve Hedley
UCC