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November 16, 2012

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Lords fear abolishing strict liability will disadvantage injured workers

A proposal to remove the principle of strict liability, relating to many health and safety regulations, was the subject of heated debate in the House of Lords on 14 November.

The proposal, included in a clause that forms part of the wide-ranging Enterprise and Regulatory Reform Bill, seeks to remove the right of individuals to make civil claims for breach of most statutory health and safety duties, unless it can be proved the employer has been negligent.

The Government wants to address what it sees as a potential unfairness in the current law, which means that employers can be liable to pay compensation in cases where they have done all that was reasonable to protect their employees.

The proposal emanates from a recommendation by Professor Löfstedt that the Government should review regulations that impose strict liability by June 2013, and either qualify these provisions with ‘reasonably practicable’ where strict liability is not absolutely necessary, or amend them to prevent civil liability from being attached to a breach of those provisions.

During the Lords debate, several peers denounced the plans, describing them as “ugly” and calling for their removal from the Bill.

Hitting out at the lack of consultation on the removal of strict liability, Lord Stevenson of Balmacara said: “The requirement to prove foreseeability is a very high bar of proof for an individual injured, or killed through no fault of their own.

“There has been no public consultation on this proposal, and what is being proposed goes further than the recommendations made in this area by Professor Löfstedt in his recent report.”

Lord MacKenzie of Culkein agreed with this assessment, adding that the change will “assist the unscrupulous to ignore health and safety law by reducing the chances of successful civil action. That is going to lead to more workplace injury in the future.”

Lord McKenzie of Luton, who was Safety minister under the last Government, highlighted how an employee injured at work by unsafe equipment is likely to know nothing of the history of the machine and would be in no position after the accident to investigate whether the employer was at fault.

Stressing that the reform would shift the balance of power dramatically against employees, he suggested that litigation will become more costly, protracted and time-consuming for everyone, and that employers would not benefit from any reductions in insurance premiums.

The adoption of the clause on strict liability, insisted Lord McKenzie, “will send signals to employers that they can be more lax in their health and safety arrangements. Coming at a time of restricted funding for the HSE, the curtailment of proactive inspections and the lack of resources for major preventive campaigns – all this risks undermining our health and safety system.”

During the debate, few peers spoke out in favour of the change; however, Lord Bates welcomed another clause in the Bill that aims to extend the Primary Authority scheme to more businesses in need of one-stop advice on regulatory issues. Said the peer: “It is often said that if you want help from local authorities they send somebody on a bicycle in a couple of weeks’ time, but if it is a health and safety or trading standards matter they come galloping along in a coach.

“We need to look carefully at local authorities and ask what they are doing to help businesses. They seem to have many more people employed in the policing functions of their organisations than in those areas that assist business, and that reflects badly on their priorities.”

Lord Marland, under-secretary of state at the Department for Business, Innovation and Skills, insisted that the Bill does not hamper fairness in the workplace but creates it, for both employers and employees. The Bill was subsequently committed for scrutiny by Grand Committee.

The Government’s plans on strict liability are the subject of an in-depth feature by David Branson, in the upcoming December issue of SHP.

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Andrew
Andrew
7 years ago

Angela, what you are proposing is that we remove our legal system and replace it with the one used by Germany and most of Europe.
Many of our H&S legal quandaries arise form the clash of the English Common Law system and the continental Justinian Civil Law.
HASWA 1974 was written for a flexible Common Law system, whereas H&S Regulations are derived from EU Directives that are written for a prescriptive Civil Law system.

Andrew
Andrew
7 years ago

AndyN, you don’t appear to understand the legal systems. The criminal system – ALL law involving statute is criminal – requires an act to be committed to create the offence. Offences where there is no element of intent are strict liability offences, i.e motoring offences and many Safety related offences brought in by Statutory Instruments. Most of the SI derive from EU Directives hence their being strict liability.
There are no NO civil statutes.

Andy
Andy
7 years ago

This reduces the ease of claims for breach of a statutory duty, but the common law duty of care is still in place. If an employer is shown to be negligent in their maintenance regime, or needlessly putting people at risk, they will still have judgements awarded against them. Evidence is a matter of records and witnesses, subpeonas.
At the moment there is a disparity between our criminal system which is mostly SFAIRP and the civil statutes which often place an absolute duty, time it was fixed.

Andy
Andy
7 years ago

Fellow Taxpayer, I understand the legal system perfectly well, SL is not the same thing as absolute duty.
SI means that if someone is injured the employer blamed, no further evidence required.
Many statutes exist to enable compensation claims and are not used explicitly in criminal law.
EU directives and regulations tend to be prescriptive ie absolute duties rather than using risk assessment, nothing to do with SL which is about the level of proof required that an offence has been commited.

Angela
Angela
7 years ago

If something is worth legislating then surely the requirement should be absolute. Breach of a statutory duty is a breach; reasonableness shouldn’t be a factor.

Will we see a u-turn on other statutory requirements, for example speed limits? Speeding is speeding. Speed limits aren’t there to be adhered to as far as is “reasonably practicable”. Neither are health and safety requirements on employers!

Bob
Bob
7 years ago

If they abandon strict liability, all ACoP requirement will become redundant, as ACoP requirement of compliance is a strict duty? Minmal standards apply.

Or do they then propose to re write these documents to suit there ever changing thought process?

Bob
Bob
7 years ago

strict liability is liability for which mens rea (Latin for “guilty mind”) does not have to be proven in relation to one or more elements comprising the actus reus (Latin for “guilty act”) although intention, recklessness or knowledge may be required in relation to other elements of the offence. The liability is said to be strict because defendants will be convicted even though they were genuinely ignorant of one or more factors that made their acts or omissions criminal. Hence the headlight?

Eddiefleming15
Eddiefleming15
7 years ago

As a H&S Office for a large Haulage Company, I would not agree with the Lords on this issue. We have seen claims paid to some employees who have been injured because of a defect on the vehicle. This is dispite our policies and procedures that ensure that equipment is inspected, serviced and repaired regularly. A defect reporting system that enables defects to be reported in real time. Yet if an employee is injured, the Company pays regardless. We do need this amendment

Littledimble
Littledimble
7 years ago

Following from Eddie, sorry for trivializing but a lighter side of strict liability when I was prosecuted for defective lighting on a vehicle. The cop said he watched the headlight bulb blow as he sat opposite me at the lights. The vehicle had a warning system and I stopped within 100 yards, (he did not pull me over… I stopped) I carried spare bulbs and changed it as he wrote the ticket but he still did me coz the vehicle was in his words “in unroadworthy condition”. Strict Liability??

Tfry
Tfry
7 years ago

The only people to benefit will be the legal profession. In my experience many businesses cannot get their head around reasonably practicable or SFARP! If someone is injured at work, surely they should be compensated for their injury? People should go to work and expect to come home at the end of the day – surely. If someone is injured at work and say prevented from working again, who pays the employer OR the state/society. We should be extending strict liability not replacing it!!

 

 

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