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An Act of Treachery
Injury solicitor, James McNally, looks at the Governments latest reform of accidents at work legislation and doesn’t like what he sees:
Some laws are passed with a great deal of pomp and ceremony. “Look at us”, shout the Government of the day. “Look at what we have done for you!” Every headline and news report leads with politicians explaining to the masses why this is good news and how it can only hope to benefit the voting public.
Then there are the other type of laws, those which creep through in the dead of the night without a whimper. They make their way onto the statute books almost in embarrassment, with no more than a scant mention on page 14 of a broad sheet no one will read. Experience shows these are the laws that we should have been made aware of; these are the laws which we know nothing of until it’s too late.
Section 69 of the Enterprise and Regulatory Reform Act is one such law. Outside of the ranks of personal injury lawyers it is a fair bet that no one has any interest in this Act. And why should they? It looks like the dullest of laws, probably one of those clunky bits of legislation to do with tax or some such. If I saw mention of it in a paper I have no doubt I would turn the page. I don’t know what counts as enterprise nor do I know why it needs reforming. This is the type of law which has nothing to do with me. Except of course it does. It has everything to do with me and everything to do with every single worker in the UK. Tucked away among the Act’s paragraphs on copyright and payments to company directors is Section 69. It reads:
69 Civil liability for breach of health and safety duties
(1)Section 47 of the Health and Safety at Work etc. Act 1974 (civil liability) is amended as set out in subsections (2) to (7).
(2)In subsection (1), omit paragraph (b) (including the “or” at the end of that paragraph).
(3)For subsection (2) substitute—
“(2)Breach of a duty imposed by a statutory instrument containing (whether alone or with other provision) health and safety regulations shall not be actionable except to the extent that regulations under this section so provide.
(2A)Breach of a duty imposed by an existing statutory provision shall not be actionable except to the extent that regulations under this section so provide (including by modifying any of the existing statutory provisions).
(2B)Regulations under this section may include provision for—
(a)a defence to be available in any action for breach of the duty mentioned in subsection (2) or (2A);
(b)any term of an agreement which purports to exclude or restrict any liability for such a breach to be void.
Section 69 repeals Section 47 of the Health and Safety at Work Act 1974. For an employee, Section 47 was the greatest section you never knew existed – enshrining in law a principle which was first established in 1898. Section 47 meant that if an employee suffered an accident at work there was a presumption that if their employer had breached health and safety regulations they would be obliged to compensate the worker. So for example, if you got struck by a forklift truck when working on a factory floor you could cite a breach s. 17 of The Workplace (Health, Safety and Welfare) Regulations 1992 about organisation of traffic routes and recover compensation for your injuries. If you fell from scaffolding you could cite the Work at Height Regulations 2005 and recover compensation. If you lost your fingers because the equipment you were provided with was unsafe and unsecure you could cite a breach of The Provision and Use of Work Equipment Regulations and so on and so on … Section 47 was there to protect the workers. It was there so that injured employees could turn to their bosses and say “hang on, you failed to protect me and now that I’m injured and unable to work I’m entitled to compensation.” And now it’s gone. Employees now have fewer rights than they had in the days of workhouses and child chimney sweeps during the reign of Queen Victoria.
From 1st October 2013 an injured worker will have to prove that his employer was guilty of negligence. This means that the burden of proving an employer has caused needless injury or death is thrown back onto the victim. The law that was meant to protect ‘the little man’ has been tilted in favour of the employer, the person who controls the workplace, controls the work equipment and who is responsible for hiring and firing; including anyone choosing to give the injured employee the statement they so desperately need to prove their case.
Section 69 was added to the Enterprise and Regulatory Reform Act at the very last minute. It was an obvious sop to those who believe that ‘elf ‘n’ Safety’ has gone mad. In 2010 David Cameron made it clear that it was his intention to cut red tape. His view was that having to abide by the HSE regulations was preventing the small businessman from making profit. This argument is rather akin to a taxi driver arguing that if he didn’t have to abide by the speed limits he could pick up more fares and make more money. It is also an argument which is justified with apocryphal stories of children wearing goggles to play conkers and the like which are actually the stuff of myth and legend. It is unlikely that the reform will cut “red tape” for businesses. Claims will take longer, be more complicated and the legal costs will be consequently higher. The number of accidents in the workplace will not fall. In fact employers now have less of an incentive to apply Health and Safety regulations then they ever did so the number of accidents (and the number of injury claims) is actually likely to rise.
Remarkably (and perhaps further evidence of how poorly thought through the legislation was) the new Act doesn’t address European Legislation, which allows employees of “emanations of the state” to bring claims. So any government employee injured as a result of a breach of European Health and Safety Directives can sue their government employer.
But of course I would say all this. As a Personal Injury Solicitor it is in my interest to make claiming compensation as easy as possible. Less claims, people will say, means less money for me. Quite possibly but those of us who deal, day in day out, with the victims of accidents in the workplace and see the horrific impact those accidents have on their lives perhaps have a more realistic view of how this legislation will impact upon people.
Lord McKenzie of Luton a former accountant whose leisure interests apparently include swimming, reading and concerts spoke out against the act. He highlighted the fact that the only people truly gaining from the ‘reform’ are the insurers. Employer liability insurance is compulsory and insurers will be hoping for fewer claims for the same amount of premium. He pointed out that currently the DWP compensation recovery scheme sees some £75 million per year spent by the government on health care and benefits for injured workers being repaid by Defendant insurers. He commented on how Professor Ragnar Lofstedt (in an independent review commissioned by the Government “Reclaiming Health and Safety for All”) concluded that there was no case for radically altering our current health and safety legislation and that there was evidence to suggest “proportionate risk management.”
All of Lord McKenzie’s arguments were sadly ignored when the legislation was passed, but perhaps worst of all was the indifference shown to some of his closing remarks
“We should be mindful that compensation should not be viewed as some bonus or prize for an individual or family. Who would not want their life back to where it was before an accident rather than have compensation? Which family would not prefer to have a loved one, who will never return home, back with them again?”
We can only hope that a future Government will overturn this ill conceived Act, but until then we at Slee Blackwell will fight even harder to ensure that innocent victims of accidents at work receive the compensation they deserve.
If you would like to make a claim for an injury at work and require FREE initial advice then call our team of specialist lawyers located throughout Devon and Somerset on 0808 139 1594. Alternatively you can pop into any of our offices in Barnstaple, Taunton, South Molton, Bideford and Braunton. If you would prefer to deal with your claim online then email James direct at: [email protected]