Injuries at work – a view from the civil courtroom

1. Injuries at work – a view from the civil courtroom Niazi Fetto Barrister 15 June 2015

2. THE CIVIL COURT – SOME BASICS • Determines claims for damages • Claimant is victim of personal injury, or estate/dependants (if fatal) • Defendant is alleged “tortfeasor” (typically employer) • Also “additional” or “third party” claims for indemnity/contribution • Follows Civil Procedure Rules • Standard of proof is balance of probabilities • Burden of proof is on claimant

3. IT IS NOT (NECESSARILY) ABOUT THE TRUTH • Questions for the court: • On the evidence before it, what probably happened? • On the law, is the defendant liable? • If so, what is the claim worth?

4. WHAT THE JUDGE MIGHT BE THINKING • “What is the simplest outcome?” • “Should this claimant receive some money?” • “Is the defendant at fault?” (Could/should the defendant have done anything further/differently?) • “Was there a risk assessment? What does it say?” • “No one is likely to be lying” • “What are the ramifications/extrapolations?”

5. WHAT THE JUDGE (PROBABLY) WILL NOT BE THINKING • “It all depends on the presence/absence/contents of a risk assessment” • “The claimant is financially interested in the result – treat his evidence with caution” • “It was his own stupid fault” • “Some accidents are no one’s fault” • “Remember the interests of business / the insurance industry”

6. H&S REGULATIONS IN THE CIVIL COURTS • Accidents before 1.10.13: • Regulations under HSWA 1974 gave direct right of action • Strict/absolute liability available in certain contexts • Negligence liability important but secondary • E.g. Stark v Post Office [2000] ICR 1013 • Accidents since 1.10.13: • Enterprise & Regulatory Reform Act 2013, s69

7. EFFECT OF S69 ERRA 2013 • Amended s47 HSWA 1974 (civil liability) • Breach of duty imposed by H&S legislation not actionable save where exceptionally provided • Small exception for claims by new and expectant mothers (Health and Safety at Work etc Act 1974 (Civil Liability) (Exceptions) Regulations 2013  Reg 22 MHSWR 1999) • Strict/absolute liability for H&S breaches in the civil courts all but abolished (save where defendant is emanation of state) • Liability for negligence remains, plus breach of non-H&S legislation • How courts will respond in practice is still unclear

8. LEGISLATION NOT COVERED BY THE ERRA 2013 • Instruments not made under s15 HSWA 1974 • The “existing statutory provisions”, i.e. the various Acts set out in Schedule 1 to the HSWA 1974 • Supply of Machinery (Safety) Regulations 1992 • Occupiers’ Liability Acts: • 1957 (visitors) – “common duty of care” (akin to negligence) • 1984 (trespassers) – duty to take such care as reasonable in circumstances where occupier knows or has reasonable grounds to believe danger exists and trespasser is or may be in vicinity

9. NEGLIGENCE LIABILITY – CORE ASPECTS • Duty • reasonable care in respect of foreseeable harm • Breach • Causation • What difference would compliance have made? • Damage • Has any injury or loss resulted?

10. PRIMARY & VICARIOUS LIABILITY • Primary • Duty to take steps in respect of H&S in your sphere of activity/control • Vicarious • Liability (without fault) for negligence of your employees/agents in course of their work • NB all ingredients of negligence must still be shown, but in respect of person for whose conduct VL is alleged

11. CONTINUED RELEVANCE OF H&S REGULATIONS ETC • Evidence of negligence may include: • Breaches of applicable provisions of legislation • Failure to comply with statutory or HSE code of practice/guidance • Failure to identify risk ahead of accident • Failure to comply with method statement and/or risk assessment

12. HOW MUCH DOES THE RISK ASSESSMENT MATTER? • Obligation in Reg 3 MHSWR 1999 (& elsewhere) • “suitable and sufficient” risk assessment • Failure to assess risk is never a direct cause of injury • But NB: • “Risk assessments are meant to be an exercise by which the employer examines and evaluates all the risks entailed in his operations and takes steps to remove or minimise those risks. They should be a blueprint for action… (I)nsufficient judicial attention has been given to risk assessments in the years since the duty to conduct them was first introduced… Understandably judicial decisions have tended to focus on the breach of duty which has led directly to the injury.” (Smith LJ, Allison v London Underground [2008] ICR 719 [58])

13. RISK ASSESSMENTS – PRACTICAL CONSIDERATIONS • Does the RA cover all risks for which you are responsible? • Activity, Location, Equipment, Personnel • Does the RA correspond with prescribed content & format from: • H&S legislation/COP? • Contract? • Does the RA reflect a sensible, defensible cost/benefit analysis? • (See next slide)

14. WHAT IS REASONABLE CARE? “(T)he overall test is still the conduct of the reasonable and prudent employer, taking positive thought for the safety of his workers in the light of what he knows or ought to know; where there is a recognised and general practice which has been followed for a substantial period in similar circumstances without mishap, he is entitled to follow it, unless in the light of common sense or newer knowledge it is clearly bad; but, where there is developing knowledge, he must keep reasonably abreast of it and not be too slow to apply it; and where he has in fact greater than average knowledge of the risks, he may be thereby obliged to take more than the average or standard precautions. He must weigh up the risk in terms of the likelihood of injury occurring and the potential consequences if it does; and he must balance against this the probable effectiveness of the precautions that can be taken to meet it and the expense and inconvenience they involve.” Swanwick J, Stokes v Guest, Keen & Nettlefold (Nuts & Bolts) Ltd [1968] 1 WLR 1776)

15. WORKPLACE CLAIMS – SOME THOUGHTS • Duties under W(HSW)R 1992 now in the background only • E.g. Reg 12(3) W(HSW)R 1992 – strict duty in respect of obstructions/articles/substances on the floor qualified only by the defence of reasonable practicability – burden of proof on defendant • So claimant must show unreasonable conduct caused injury • But caution is advised: • Turner v Arding & Hobbs Ltd [1949] 2 All ER 911 shopkeeper had duty to explain how accident happened, when unusual & unexpected danger was present of which injured person unaware. (see also Ward v Tesco Stores Ltd [1976] 1 WLR 810)

16. EQUIPMENT CLAIMS – SOME THOUGHTS • PUWER 1998 & PPEWR 1992 of background relevance only • E.g. Reg 5 PUWER – strict duty to ensure work equipment in efficient working order – Stark v Post Office (above) • So again claimant must show work equipment/PPE inadequate or defective due to unreasonableness of defendant (as informed by H&S regulatory regime) • But NB Employers’ Liability (Defective Equipment) Act 1969 - employer liable in all cases where employee injured by defect in equipment provided by employer, if “the defect is attributable wholly or partly to the fault of a third party (whether identified or not)”

17. FRAUD AND MALINGERING – A NEW DAWN • S57 Criminal Justice & Courts Act 2015: • “Personal injury claims: cases of fundamental dishonesty In proceedings on a claim for damages in respect of personal injury where the court finds that the claimant is entitled to damages, but on application by the defendant for dismissal of the claim the court is satisfied on the balance of probabilities that the claimant has been fundamentally dishonest in relation to the claim or a related claim, the court must dismiss the claim entirely unless it is satisfied that the claimant would suffer substantial injustice as a result” • In force since 13 April. • NB it is a duty (“must”), and relates to the whole claim. • Supplementary to contempt of court jurisdiction.

18. WHAT DOES IT ALL MEAN? • “Fundamentally dishonest” not a term of art. • “Lies are told in litigation every day up and down the country and quite rightly do not lead to a penalty being imposed in respect of them. There is a considerable difference between a concocted claim and an exaggerated claim and judges must be astute to measure how reprehensible the conduct is” (Ward LJ, Widlake v. BAA Ltd [2009] EWCA Civ 1256) • In practice, the evidence must be very clear, and the defendant very confident • Thorough accident investigation/report • Preservation of all relevant records – personnel, OH, etc

19. COURT WILL NOT HOLD BACK ONCE PERSUADED • “For many years the courts have sought to underline how serious false and lying claims are to the administration of justice. False claims undermine the system whereby those who are injured as a result of the fault of their employer or a defendant can receive just compensation. They undermine that system in a number of serious ways…Those who make such false claims if caught should expect to go to prison. There is no other way to deter those who may be tempted to make such claims, and there is no other way to improve the administration of justice” • (Moses LJ, South Wales Fire and Rescue Service v Smith [2011] EWHC 1749 (Admin))