| From: | Hedley, Steve <S.Hedley@ucc.ie> |
| To: | obligations@uwo.ca |
| Date: | 09/03/2013 10:15:36 UTC |
| Subject: | UK: Government defeated in Lords over abolition of civil liability forH&S breaches |
>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.
Ah. Well, there are a number of distractions here.
1/ Does it really matter that the rule comes from the EU? I had assumed up to this point that the UK would have some sort of health and safety law whether or not is remained in the EU.
Are those politicians who want the UK to leave the Union really advocating the removal of all existing health-and-safety law (sorry, “whimsical EU standards”)?
Nigel Farage neglected to mention that one, remind me not to vote for him ...
2/ Finding quick and tolerably fair solutions to legal disputes is very much the
right way to run a legal system. The passage Neil quotes is very much to the point – s62 would make disputes more complex (which means that a higher proportion of the monies in the system go elsewhere than to the victims).
That's no way to run a legal system, if it can be avoided.
3/ Is the statutory rule about working heights really any more arbitrary than the common law standard?
It represents some civil servant’s view of what is a safe working height.
No doubt flaws can be found in it, but is it worse than the alternative?
If it’s a matter of negligence, Judge X will draw the line at one height, whereas Judge Y will draw it slightly higher. Judge Z slightly lower.
Their views are also pretty arbitrary too (necessarily so) – we just hide all those differences of opinion behind the “negligence” standard.
The real question is that last one – should we be trying to determine whether an employer (which usually means, a company with no body to be kicked, no soul to be damned, etc) is in some way “at fault”, or whether there is a preferable
approach. Answers on a postcard ...
Steve Hedley
University College Cork
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>.
Andrew Tettenborn Professor of Commercial Law, Swansea University School of Law, University of Swansea
|
Andrew Tettenborn Athro yn y Gyfraith Fasnachol, Prifysgol Abertawe Ysgol y Gyfraith, Prifysgol Abertawe |
Lawyer (n): One versed in circumvention of the law (Ambrose Bierce)
***