At first glance, one may wonder what the Enterprise and Regulatory Reform Bill has to do with personal injury law. Introduced to the House of Commons in May, its main elements have been much discussed.
However, in October, at the end of the report stage, the Government introduced an amendment, clause 61, now clause 62, which is brief – but has serious consequences.
The clause seeks to amend section 47 of the Health and Safety at Work Act 1974, which attaches civil liability to breaches of health and safety regulations. The new clause removes that attachment and takes the law back to where it was more than 100 years ago.
It will leave victims of workplace accidents requiring to establish common law negligence on the part of their employer or other wrongdoer if they are to recover damages. There has been no consultation and no proper review of the amendment and its likely consequences.
Many workers, who have been injured through no fault of their own, will face significant hurdles in obtaining any, let alone fair, compensation.
Cases that now are relatively straightforward, for example, involving defective machinery or equipment, will result in complex arguments about the state of knowledge of an employer, company inspection systems, and what was reasonable in the circumstances. Many cases that are now brought will no longer be pursued. The length and expense of cases that proceed will increase significantly.
The state will bear the cost of looking after injured people, whose care and compensation ought to be paid for by insurers, to whom employers have been, or ought to have been, paying premiums to cover these situations. The Government receives some £75m a year recouping benefits paid to people injured in the workplace, where they subsequently made a successful claim. That money is repaid by the insurers of the wrongdoer. The level of recoupment is likely to fall.
A common misconception is that the European directives and regulations following thereon are designed primarily to provide injured workers with a right to compensation. In the words of Lord Rodger in the House of Lords case of Spencer-Franks v Kellogg Brown and Root Ltd & Ors: “Civil courts tend to come across health and safety regulations when someone has been injured and is suing by virtue of section 47 of the 1974 act …it is important to remember that civil liability for injuries is essentially a secondary feature. Their main purpose is not to give those who have been injured a straightforward route to damages, but to prevent them being injured in the first place.”
The beneficial effect of the current regulations can be seen in the decrease in the number of workplace accidents. The Health and Safety Executive annual statistics make it crystal clear that they are a crucial factor in improving workplace safety in the UK. In 1991/92 there were 368 fatal accidents in UK workplaces. By 2011/12 that figure had fallen to 173. The number of major injuries at work has fallen by 20 per cent since the mid-1990s, while the number of injuries which led to a three-or-more-day absence from work have fallen by more than 30 per cent.
Of further relevance is the declining number of workplace criminal prosecutions and convictions across the UK. This is particularly so in Scotland where the number of offences prosecuted fell from 122 in 2007-08 to 41 in 2011-12, and the number of convictions fell from 66 to 32 over the same period.
The Government would have us believe that the criminal sanctions within the 1974 act are sufficient to protect employees within the workplace. The inescapable conclusion is that the criminal justice system deals with a small minority of cases.
Compare the Scottish prosecution statistics with 2153 reported major injuries, and 7387 injuries which led to a three-or-more-day absence from work in 2011/12.
It is the ability to bring civil claims, and consequent demands upon employers by their insurers, which has been the principal driver in improving workplace health and safety practices. The bill goes to its House of Lords report stage at the start of March. The amendment takes us back to the Victorian era and will benefit only the insurance industry.
• Gordon Dalyell is a partner with Digby Brown LLP and Scottish executive member of the Association of Personal Injury Lawyers