LEGISLATION & PROCEDURE
legislation in 2013.
One of the key issues which he addressed was clarification of what may be “reasonably practicable” for those seeking to comply with the law. On the face of it, to facilitate the way in which the law may be complied with, Professor Löfstedt suggested introducing the “reasonably practicable” qualification to some regulations which currently carry strict liability.
So far as compensation claims are concerned, the report suggests that the aims of pre-action protocols in civil cases be restated, i.e. that they are intended to encourage early resolution of claims.
REGULATORY
REFORM? Whilst there is an apparent tension associated with the public’s perception of health and safety, the British health and safety law regime is nonetheless extremely effective. Our rate of work related deaths was, in 2007, the lowest in Europe, and more of our workers felt “very well informed” about health and safety than anywhere else in the EU.
Although simplification is to be commended in principle, there are few health and safety regulations which are redundant or serve no useful purpose. Approved Codes of Practice also play an important role. Their removal would lead to greater uncertainty as to what the related regulations require, and what may be “reasonably practicable.” The concept of “reasonable practicability” itself means that relevant duties are
not absolute, introducing flexibility and proportionality into the ways in which duties can be complied with. And Professor Löfstedt recognises all of those positives in his report.
The government’s response to the report is pretty upbeat, suggesting that the UK has a lot to offer the EU during its review, that the European approach to health and safety must be both risk and evidence based, and that this country will exert a great degree of influence over our European counterparts to achieve our government’s aims. Given that Professor Löfstedt’s conclusion that no radical overhaul is needed, it is surprising perhaps that the government’s proposals for change are still so far reaching.
WHAT ABOUT COMPENSATION
CULTURE? A relatively modest 1,300 health and safety offences (not offenders) are prosecuted annually in the criminal courts. That is a drop in the ocean compared with the overall number of personal injury claims pursued each year.
The Health and Safety at Work etc Act 1974 cannot technically be used to mount a compensation claim, but some health and safety regulations can. And, aside from criminal penalties (which cannot be insured against), it is therefore extremely common for businesses to manage risk by taking out a policy. Insurance is therefore an important fact of business life, and insurers’ concerns in terms of health and
37
safety are therefore entirely legitimate, but equally it may be that change may need to embraced by the insurance industry before the government’s wider aims are fulfilled.
Rather than adopting Professor Löfstedt’s suggestion that the “reasonably practicable” qualification should attach to more regulations than at present, the government appears to favour at this early stage preventing civil liability from attaching at all. But is a mis-match between the steps needed to avoid liability to pay compensation and to avoid committing a criminal offence going to cure the problem of the burden on those taking those steps? Probably not.
In civil litigation, cost reforms are likely to take effect sometime in late 2012 or early 2013. Changes in
the amount of costs which may be recovered and the effect of settlement offers made will impact upon the number of compensation claims which may be brought, and the speed with which disputes are resolved. Whether the public’s perception of claim following blame will improve, only time will tell.
In conclusion, it may be thought that, even in the absence of a complete rework of the current legislative regime, the proposed changes are nonetheless relatively wholesale. Professor Löfstedt himself expressed concern in January this year that his report may be hijacked for political purposes. Let us hope that the policy makers are not distracted by political spin or pressure to implement changes fast, but focus on the evidence and the risks.
Page 1 |
Page 2 |
Page 3 |
Page 4 |
Page 5 |
Page 6 |
Page 7 |
Page 8 |
Page 9 |
Page 10 |
Page 11 |
Page 12 |
Page 13 |
Page 14 |
Page 15 |
Page 16 |
Page 17 |
Page 18 |
Page 19 |
Page 20 |
Page 21 |
Page 22 |
Page 23 |
Page 24 |
Page 25 |
Page 26 |
Page 27 |
Page 28 |
Page 29 |
Page 30 |
Page 31 |
Page 32 |
Page 33 |
Page 34 |
Page 35 |
Page 36 |
Page 37 |
Page 38 |
Page 39 |
Page 40 |
Page 41 |
Page 42 |
Page 43 |
Page 44 |
Page 45 |
Page 46 |
Page 47 |
Page 48 |
Page 49 |
Page 50 |
Page 51 |
Page 52 |
Page 53 |
Page 54 |
Page 55 |
Page 56 |
Page 57 |
Page 58 |
Page 59 |
Page 60
