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Debate over Strict Liability

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YoungNick
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Debate over Strict Liability

Post by YoungNick » Sat Dec 14, 2013 11:12 am

Hello HSfB :wave: :wave:

I apologise if this is in anyway the wrong thing to do but i believe it is more off an eye opener for people coming into the world of H&S and seeing lots of changes occurring within the law and a little debate if thats the right word could explain it a little clear in regard to the old way and now the new way since this has changed. I put debate because I've heard and seen so many mixed views on this within my lectures and on the net when searching.

Currently for my self we have gone over strict liability and the changes made under s47? I believe of HASAWA due to that off The Enterprise and Regulatory Reform Act. Now for me its still a little hazy in regard to what has actually changed but, if i have learnt anything from UNIT A, no consultation was done before hand of this been put in so i believe?

Again, my understanding off the whole diverse effect on what this has changed from the past is hazy so my apologies for that.

What are your understanding/ thoughts on the changes to this in regard to employers now not been held liable for strict liability in civil proceedings but that off the claimant must prove the employer has been negligent under common law?

On one hand you have the poor employee who has injured his self on a piece of work equipment which the employer has supplied and should have all the necessary provisions in place to ensure its suitability and alike but now the employee has to go down a lengthy path of proving negligence. But on the other hand you have an employer who has a piece of equipment which is fit for purpose, well maintained and no other forceable risk was present before the employee has injured his self and due to this the employer may not be found negligent thus no damages will be paid out to the employee. (example)

I apologise if any off the above is confusing or a little cross wired with correctness (this is just my understanding and would love to hear your views to help myself and others who may be a little unclear with this)

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Re: Debate over Strict Liability

Post by bernicarey » Sat Dec 14, 2013 4:03 pm

Hi Nick

Take a read of the article on p30-32 of the current SHP magazine: http://content.yudu.com/A2kdpx/SHPDecem ... .uk%2Fhome" onclick="window.open(this.href);return false;

I think it may clear it up for you. .salut
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Re: Debate over Strict Liability

Post by kevlarion » Tue Dec 17, 2013 11:30 am

My understanding is that strict liability applies in all H&S matters simply because of the common law duty of care, regardless of changes to the criminal law (HASWA).
I also think there is a misunderstanding prevailing in the press (including SHP) that strict liability and an absolute duty are the same thing.
Absolute duties still exist, for example the duty to have a H&S policy, to carry out risk assessments, to prevent exposure to cancer causing substances, etc, and are usually described in a roundabout fashion as duties which don't have SFAIRP associated with them.
The changes to section 47 of HASWA now ensures that employers are able to offer a defence of having done everything reasonably practicable to prevent an injury or ill health.
The employee (really their solicitor) has previously been able to say "An injury happened, therefor the employer failed in their duty to prevent that injury" which is strict laibility.
In practice they have usually done some investigation (asking for copies of risk assessments, training records, equipment inspection records etc) so that they can say which regulation they claim has been breached. They could do this citing a "Breach of regulation" although not all regulations were allowed to be cited in civil claims, or by citing the common law duty of care the employer owes to the employee.
The common law duty of care is (as far as I know) unchanged by the recent changes.
The regulations although they cannot themselves be used as the basis for a claim can still however be cited as evidence of negligence on the part of the employer, and if the regulatory requirement is an absolute duty, then reasonably practicable will be applied.

What does it mean in real life ?
There are only a small proportion of compensation cases that even get to court, most are settled by a fast track settlement method between the insurance companies and the claimant's solicitors with a bit of haggling about the amount of compensation. This means these changes will be rarely used to defend claims.
Of those that do get to court, many only go as far as the initial hearing where both parties present a summary of their position and evidence they have to a judge or sherrif and a decision is made by the judge whether the case can proceed.
If the case does proceed then very often the claim will be settled at that point out of court.
If the judge decides there is no case to answer then the claimant will either drop the case or appeal the decision, in which case the same thing happens again.
Those that do go to a full court hearing will then provide us with test cases for these changes.

Most cases will continue to be decided on financial grounds, if it's cheaper to settle a claim than to defend it (it usually is), very often the claim will be settled without any real consideration of how defendable the claim would be.

There are also regional differences in the legal systems, so a successful claim in England might not have been successful in Scotland, or vice versa.

For your example :-
"On one hand you have the poor employee who has injured his self on a piece of work equipment which the employer has supplied and should have all the necessary provisions in place to ensure its suitability and alike but now the employee has to go down a lengthy path of proving negligence. But on the other hand you have an employer who has a piece of equipment which is fit for purpose, well maintained and no other forceable risk was present before the employee has injured his self and due to this the employer may not be found negligent thus no damages will be paid out to the employee. (example)"

My understanding is that the employee can claim a breach of PUWER (as evidence of negligence) if the tool is not suitable, or breaks when being used normally, or due to poor maintenance, or because the employee had not been trained in the correct use of the tool, or some dangerous part of the tool (eg rotating parts) was not guarded. All of those risks are reasonably forseeable and although perhaps an absolute duty has changed to SFAIRP, reasonably still means that a means to prevent the injury / illness has to be well known, and practicable still means that if the risk is significant, then most things are considered practicable.

In Scotland you can also make a claim based on European Regulations, which are not consituted under HASWA and are therefor not subject to the limitations imposed by section 47s civil claims bar. This is probably the case in all EU countries.

Of course I am no lawyer, so have a look for yourself :)

My personal belief is that only one group of people will benefit from these changes... lawyers.
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Re: Debate over Strict Liability

Post by bernicarey » Tue Dec 17, 2013 8:51 pm

Kev
My understanding is that strict liability applies in all H&S matters simply because of the common law duty of care, regardless of changes to the criminal law (HASWA).
I also think there is a misunderstanding prevailing in the press (including SHP) that strict liability and an absolute duty are the same thing.
You seem to be getting confused over this; though I can perhaps understand why. And you're right, the Press don't help, nor do the politicians who get it mixed up too ;)
Strict Liability only happens once there has been an incident, Absolute Duty applies immediately the law is in force.

I think your problem lies with the fact that Strict Liability and Absolute Liability are essentially the same thing, not to be confused with Absolute Duty.

"Strict Liability is the absolute legal responsibility for an injury that can be imposed on the wrongdoer without proof of carelessness or fault." So, in Stark v. Post Office [2000] because the PUWER Reg 5 says that Work equipment shall be maintained in an efficient state, efficient working order and in good repair, the PO were eventually found liable because Stark got hurt when the brakes on his bike broke. The Reg did not give any leeway for reasonable repair or such, the use of 'shall' in legal terms is an absolute, so the fact that the brakes broke, meant the PO had not been compliant with Reg 5. Therefore they were at fault, even if it could have been proven that a hitherto unknown defect was to blame, it wouldn't have mattered.The Reg has no give in it's legal definition.

So a strict liability essentially means 'So long as nobody get hurt, then everything is OK, but the moment somebody gets hurt, no matter what mitigating circumstances may exist, the wrongdoer is immediate guilty because it has happened'.

An Absolute duty on the other hand, is the duty to do something irrespective of the outcome, the classic example is the Factories Act which required 'All dangerous parts to be fenced'. It didn't matter if the machine was switched off and inhibited, or if fencing all parts made the machine unusable, the Act say it must be fenced full-stop.

Now if I haven't confused myself writing all that, it might make some sense... ;)
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Re: Debate over Strict Liability

Post by YoungNick » Tue Dec 17, 2013 9:41 pm

Hi Berni, Kev :wave:

Thank you ever so much both off you for the above replies, they have helped tremendously and also nailed down an other little one in which was the difference between strict liability and an absolute duty so thank you for that.

Kev - All of those risks are reasonably forseeable and although perhaps an absolute duty has changed to SFAIRP, reasonably still means that a means to prevent the injury / illness has to be well known, and practicable still means that if the risk is significant, then most things are considered practicable. - This has summed it up really for me which was lurking at the back off my mind when trying to understand what is been effected by the change in regard to been reasonably practicable.

Do you both believe that before this has any bearing on upcoming cases, a precedent may have to be set as it is still a little hazy in regard to its interpretation in which some cases will be very different to others and without a clear precedent in place, confusion may arise? (in my opinion)

Berni - Thanks for the SHP link, i will be going through this tomorrow as my next pages funnily enough will be turning into strict liability ../.

Nick
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Re: Debate over Strict Liability

Post by Thommo » Wed Dec 18, 2013 9:05 am

bernicarey wrote:So a strict liability essentially means 'So long as nobody get hurt, then everything is OK, but the moment somebody gets hurt, no matter what mitigating circumstances may exist, the wrongdoer is immediate guilty because it has happened'.
Good summary, Berni, although I wouldn't say immediately guilty. This was always a good topic on some cases I had. Don't worry, I'm not going to bomb this thread with a load of legal stuff :)

Previous posts in this thread have given sound enough info on the details of the topic. I'm just going to try and provide some further insight.

Stark v Post Office was a really good precedent for Claimants. Cutting a long story short, if we couldn't get an angle on anything else and there was a question over machinery, we would put the issue to strict liability and the onus was on the Defendant to prove the machinery/equipment was safe and sound, etc. If they couldn't provide the relevant paperwork/records we would let them know we were onto this, and in continuing to pursue the case down this route it showed we had case law on our side, so to speak. If in doubt, opinion from Counsel was sought which would in most cases support the issue.

I had a couple of tricky cases that dealt with this. One that stands out in my mind was a claim against a large supermarket. I couldn't fault the supermarket for their Health & Safety paperwork. They had everything covered regarding training. Basically, my client had the relevant training at the regular intervals and the supermarket had signed paperwork to prove it. Their issue and the question stood was as long as the Claimant was working to the training he received he should have been fine and would not have sustained injury. In other words, if he got injured it was his own fault as he wasn't doing it properly. My client mentioned the equipment in question was problematic and fortunately it had been mentioned before but he was unsure if it had been recorded. My thoughts were the defect in question could have easily been dealt with, so why not? Anyway, there was an issue with the equipment in question and it that had not been addressed, so something worthwhile pursuing.

I put it to the defendants on the basis of strict liability and they had the task of proving there wasn't a defect. Ended up as a successful case :D

(Disclaimer: not saying claims of a similar nature would be successful. Other factors weigh in such as the Claimant, Defendant, insurers, injuries, general and special damages, etc - plus no two cases are ever identical.)
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Re: Debate over Strict Liability

Post by kevlarion » Mon Dec 23, 2013 4:50 pm

"I put it to the defendants on the basis of strict liability and they had the task of proving there wasn't a defect. Ended up as a successful case :D "

Since it is impossible to prove a negative, there are no warnings that something is working properly, it seems that this use of strict liability provided a claim which was impossible to defend.
I think this is the sort of case that the changes will affect, by applying reasonableness to an impossible situation.

Of course the claimant can still claim that the employer failed in their duty of care and that it would have been reasonable and practicable to replace brake cables more often, or inspect bicycles more often (and therefore detect the fault) or that the fault happened gradually and had been reported but not attended to. The only real difference is that the claimant's solicitor will have to work a little harder to make the case on behalf of their client.

At least now there is the possibility of a defence for the employer if they think the employee is not really injured but trying their luck at a claim.

Of course it is still largely in the hands of insurance companies who will always look for the cheapest option.
If it isn't broken, that doesn't mean you can't improve it. (Do three negatives make a positive ?)

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