Hm. I, for one, wouldn't shed too many tears if s.62 was restored in the Commons. The action for BSD in the industrial context creates an entirely arbitrary enclave of strict liability with no sensible justification. If you're lucky enough to have been working 10cm higher than you should have been according to some whimsical EU standard, or the guard on the machine happened to be in the wrong position, you get free strict liability. If you don't happen to be in that position, then you prove fault. That's no way to run a legal system.

That's not to deny that there is an arguable case for some fault-free liability in the employment context (though it's worth remembering that even in these straitened times there's more state assistance than in 1897 when Groves v Lord Wimborne was decided). But if you're going to have it, surely it should be across the board, if necessary with a pretty strict cap on recovery.


Andrew

Dear Steve;
You no doubt expected me to post on this one! :) A good outcome. Thanks
especially for the link to the debate in the House of Lords. I love this
passage (apologies for the extended quote) from a former Justice of the
Supreme Court and barrister:

"Lord Brown of Eaton-under-Heywood: My Lords, I, too, support these
amendments. For a number of years before the passing of the 1974 Act, I
enjoyed a reasonably successful practice at the Bar, often instructed on
behalf of employers' insurers defending negligence claims by injured
workmen. Mostly these claims were settled, quite often for substantially
less than their true value, because of course the insurers, for whom I
acted, were altogether better able than the claimants were to risk
losing them. A number of these claims were lost -I defeated them-because
the claimants were not quite able to assemble all the evidence necessary
to prove actual negligence.

The 1974 legislation, which Clause 62 is designed to overturn,
introduced a sea change in the approach to damages claims for workplace
injuries. No longer was it necessary to prove that the employers knew,
or should reasonably have recognised, that their machinery, equipment,
systems of work or workplaces were actually dangerous, it was sufficient
to show that regulations designed to secure the workforce's safety had
been breached and that, in consequence, the employee had suffered often
appalling injury. Thereafter most claims were settled early, at their
true value and with very little in the way of litigation costs. Of
course, we at the Bar suffered for this change, because our personal
injury practices were greatly damaged, but almost everybody else
benefited. Injured workmen obviously did but so too did the Exchequer,
because benefits for their injuries thereafter were paid by the insurers
out of the premium moneys they had received instead of the cost being
put on the state. Safety conditions in the workplace were hugely
improved. There is nothing like strict liability, or its civil
equivalent, to induce employers to take proactive steps to ensure that
the risks and dangers are reduced to a minimum. Employers' insurers
therefore, since 1974, have had altogether fewer claims to meet and have
certainly incurred far fewer legal costs in meeting them. "

A bit of interesting and refreshing honesty from a former insurance
lawyer!
Regards
Neil

 

Neil Foster
Associate Professor,
Newcastle Law School;
University of Newcastle
Callaghan NSW 2308
AUSTRALIA 
MC177, McMullin Bldg
ph 02 4921 7430
fax 02 4921 6931

http://www.newcastle.edu.au/staff/profile/neil.foster.html

http://works.bepress.com/neil_foster/

http://simeonnetwork.org/testimonies/119/Neil_Foster

"Hedley, Steve" <S.Hedley@ucc.ie> 03/09/13 5:30 AM >>> 

"The Government’s attempt to remove civil liability for breaches of
health and safety regulations suffered a major setback this week when
the House of Lords voted down the proposed amendment to the Health and
Safety at Work Act which would restrict injured employees to bringing
claims against their employers in negligence ..."
(more<http://www.piblawg.co.uk/post/2013/03/08/Government-defeated-in-Lords-over-abolition-of-civil-liablity-for-HS-breaches-.aspx>)
(Andrew Spencer, piBLAWG, 8 March)

The Lords debate is
here<http://www.publications.parliament.uk/pa/ld201213/ldhansrd/text/130306-0001.htm#13030662000795>.