Shifting the health and safety burden

The government's proposals to remove civil liability for breach of the strict liability imposed on employers by health and safety legislation is not just misguided. It is also another attempt to favour insurance companies over society at large. Currently, insurance companies usually have to compensate injured workers through employers' compulsory insurance. The proposals would shift the burden of 'looking after' an injured worker from employers to every tax payer.

However, that presumes such a change would be effective, and there must also be doubts about that. The 'direct effect' of European directives and regulations has been with us for some time now, so whatever parliament does, claimant lawyers will simply plead the direct and indirect effect of the directives. If necessary, they will also take the UK to the European Court of Justice under its 'Francovich' liability for failing to effectively implement the directives or regulation.

Lawyers rarely plead the directives (or indirect effect) because the so-called 'six pack' - the European regulation and five directives establishing an EU framework for health and safety - and subsequent UK legislation, which has implemented them, makes it, most of the time, superfluous.

Unless there is a wholesale rescission of our commitments to the EU, it is simply further wholesale changes to the way lawyers work for no material benefit to anyone. That however doesn't include the insurance companies David Cameron likes to have for tea at number 10 to sort out their perceived problems.

Should the government be daft ?enough to attempt such a move without ?a wholesale removal from the EU, it will probably provide more work for lawyers generally and more than compensate them for the wholly unnecessary and ineffective ?changes elsewhere.

Decrease in litigation

The Access to Justice Act 1999 did just that, and gave, for once, access to justice for the majority of the country (rather than just the very rich or very poor who obtained legal aid) through the introduction of conditional fee agreements (CFAs). And then certain sectors of the judiciary, the government and the Ministry of Justice have the temerity and audacity to complain about the perceived increase in litigation.

As a side note, apparently the number of cases registered with the Compensation Recovery Unit (CRU) - and bear in mind that registration of a 'claim,' from the issuing of a letter of claim, is compulsory - has consistently gone down on a year-by-year basis for quite a long time. So, if that is correct, where are the rumours of this perceived litigious society coming from?

CFAs have permitted the ordinary worker (particularly one who is not a member of a union) to seek redress when he is injured at work. Such injuries are part of the cost of production, no matter how unacceptable.

Placing liability

Health and safety legislation not only implements the European directives but correctly places the cost of compensating an injured worker directly on the employer.

The current legislation ensures that the cost of looking after that injured worker falls fairly and squarely on the employers' shoulders and does so by imposing 'strict liability' on the employer. It is inevitable that there will be occasions where the employer has to compensate the injured worker, even though there does not appear to be anything else the employer could have done to prevent it.

The legislation does not necessarily depend on proving 'fault'; it is ?simply placing the burden of looking ?after the injured worker on his employer who is certainly more 'liable' to compensate that injured worker, and he ought to have factored the cost of compensating his injured worker into the costs of producing ?X or Y (which is relatively easy - it's ?the cost of the employers compulsory liability insurance).

When employers, Professor Löfstedt - the academic who conducted a review of health and safety regulations for the government - and the government realise that the legislation places very onerous burdens on employers, perhaps they will stop complaining about their rigorous obligations, and fulfil them instead. So that not only is it the employer who has to compensate his worker, injured in the course of making profit, regardless of 'fault', but we will also see a reduction in the amount of injuries and fatalities at work for the benefit of everyone including the worker's families.