Thoughtful observation, David. Yet my understanding is that the elimination of absolute liability was recommended by Loftstedt on the grounds that it places an excessively onerous responsibility on employers.

In the specific case you've chosen, is it not the case that the responsibilities set out in PUWER continue to apply to controlling risks when using machinery that poses hazards?

But for the grace of Loftstedt (and organisations like IOSH which lobbied him skilfully), the legal changes might be a lot worse.

Overall a set of changes may have the cumulative effect of improving safeguards for employees. The changes include:
a. the introduction of FFI
b. the introduction of the OSHCR and its gradual expansion of other professional groups e.g. chartered psychologists came into its scope this week
c. the steady maturation of the OSH profession in recent decades.

Thanks David
Interesting stuff, and I share your concerns.

The guidance that gets anyone who is interested past the impenetrable legal bumf of the bill itself is to be found here:-

http://www.publications....13/0045/en/2013045en.htm

The brief put together by the Bill's sponsors for the Lords is:-

444. Professor Löfstedt’s review Reclaiming health and safety for all: An independent review of health and legislation (November 2011) identified the potential unfairness that arises where health and safety at work regulations impose a strict liability on employers, making them legally responsible to pay compensation despite having done all that was reasonable to protect their employees. Professor Löfstedt recommended that regulatory provisions which impose strict liability should be reviewed. In its response to the review the Government recognised this unfairness and agreed to look at ways to redress the balance, in particular by preventing civil liability from attaching to a breach of such provisions.

445. The amendment to the Health and Safety at Work etc. Act 1974 ("HSWA 1974") reverses the present position on civil liability, with the effect, unless any exceptions apply, that it will only be possible to claim for compensation in relation to breaches of affected health and safety legislation where it can be proved that the duty holder (usually the employer) has been negligent. This means that in future, for all relevant claims, duty-holders will only have to defend themselves against negligence.

446. The measure applies to health and safety regulations made under section 15 of the HSWA 1974 (including regulations which also rely on additional vires) and existing statutory provisions as defined by the HSWA 1974 (being certain Acts made prior to 1974 which are listed in Schedule 1 to the HSWA 1974 and any secondary legislation made or having effect under those Acts). The clause also provides a power to amend other health and safety legislation which does not fall into these categories, enabling the policy to be extended should this be required in the future.


Note the last sentence, once they have got this through it will not take further legislation to extend it. So as in the case of the extension of FFI, further rights can be removed with the stroke of a minister's pen, without any further recourse to Parliament.

This will keep me busy for the weekend. Thanks lads (I think)

Hello
In answer to Keiran - absolutely, there should be a trusting relationship between employer and employee, and in most cases that probably does exist.

However, we are clearly not all the way there yet. 173 people dies at work last year and 156000 suffered 7 day injuries.

In answer to Betta - the honest answer is I don't know, we'll have to see. However one of the fundamentals of a good safety system is effective consultation. I cannot see how hiding a significant piece of legislation unannounced in amongst the weeds of an Enterprise bill amounts to proper dialogue. Its not a party political point, both of the last Governments did it.

I am not convinced that Lofstedt has got this right.

Civil redress provides a social utility function for those injured at work through negligent employers. It is not about 'claim and blame' but to ensure there is a means to provide someone for loss of earnings through the civil courts.

If you listen to this Government you will find that they are overly bias towards the employer. Just recently they announced that rather than provide employment rights for employees, they should take a share option in the company instead. Another half brained notion that has not been properly thought out.

While I can well respect the belief that legislation should safeguard people at work, is it not advisable to have due regard for available evidence on what actually does prevent occupational injuries?

The only research I have to hand is a sumary of an article in the research journal, Safety Science in 1993. in it the author, Guastello reports using a technique known as 'meta analysis' which compiles evidence from a host of studies. Based on two studies, he reports that legislation has the effect of reducing accidents by an average of 18.3%. This is a little better than management audits (4 studies - 17.0%) and poster campaigns (2 studies - 14,0%) and quite a lot better than selecting with an eye to safety disposition (26 studies - 3.7% improvement. Yet, according to Guastello's data, legislation is not as effective as group problem solving (1 study - 20.0% reduction) and is a long, long way behind ergonomic interventions (3 studies, 51.6% average reduction) and 'behavioural safety' (7 studients - 59.6% average reduction)

So, unless there is compelling evidence since 1993, if what you're really committed to achieving is reducing occupational injuries, transfer your energies, time and other resources into promoting ergonomic and behavioural safety intervention, which appear to be around 3 times more effective than legislation. (If I were commercially minded, I might even be tempted to advertise some great-value used books on these subjects.....)

While 'access to justice' is a reasonably good summary statement of aspirations, its implementation is a historical process involving far more than passing laws.

The clause is actually the title of the autobiography of Lord Woolf who steered the Access to Justice Act 1999 through parliament. My modest personal acquaintance with its direct outcome lies in paragraphs 35 and 36 which regulate the process of appointing, managing and delivering expert witness services. As the training for this role makes clear, before that Act, very often legal proceedings had very much a 'trial by ambush' character by contrast with relatively robust disclosure of evidence as the basis for trial, in both civil and legal cases.

While it may be the case that removal of 'strict' liability lacks fairness, it is a moot point whether there are members of either houses of parliament who combine the necessary understanding, skill and commitment required to generate the necessary opposition. It took the granite-like resistance of the unusually well-informed Baroness Shirley Williams, and the commitment to the NHS she developed in a relatively classless home, to galvanise the support necessary to dilute the more crude proposals to the bills that have recently changed the NHS.

What remains a matter of concern about the Loftstedt review, and of the part played by IOSH in its composition, is how procedural justice relies on scientific evidence in interpreting laws. This is especially the case in relation to human behaviour, whether physical, cognitive or affective. It remains extremely difficult for claimants in civil cases about even severe musculoskeletal and stress-related cases to find a medical specialist to stand by an opinion that appears 'reasonable', in the sense that recurrrent failures of managers to respect pleas for help were dismissed or ignored. The instance of the Court of Appeal in the case of Intel v Daws dramatised this: before her attempted suicide, Daws (and her supportive line manager) made no less than 14 claims under the grievance procedure that her workload was excessive; time and time again, senior managers including HR, dismissed her claim relying simply on their assertion that 'counselling' was a sufficient management tactic (as in the Sunderland and Hutton cases). The point is that the argument was lost by the employer at the highest level on the grounds of both medical and ergonomic evidence (the latter about work design).

The reference by Bob L is disability is pertinent and partly valid, in so far as it is taking the same kind of historical evolution for consensus to emerge about controlling safety as it has about discrimination. What seems 'common sense' and 'obvious' remains difficult to sustain without robust scientific argument. Ironically, even some prestigious expert ergonomists with engineering backgrounds commonly make quite crass errors in their statements about human behaviour of a social nature when they substitute physical principles (e.g. every action has a reaction), for socially valid evidence, even though what they asssert has been experimentally rejected several decades ago and written up in hundreds of scientific journals. A lot of progress has been made in social psychology over the past 4 decades, especially in Europe, but it's application in psychology too often remains restricted to 'behavioural safety', with its individualistic assumptions.

While 'a long revolution' can feel arduous, its outcomes are usually more robust than sprints that leave little trace.

But Kieran, this highlights the difference between the 'lower' or first instance courts and the court of appeal. In the lower courts the evidential reliance in safety cases is largely based on comparison of behaviour with standards, legislation, and whether these were known and followed: the court of appeal has more of a tilt towards interpretation, public policy and reasonableness. That is why the Porter case (for example) was rightly booted out for being the idiotic action that it was - but it had to get to the court of appeal before that could happen.
Anyway, it is a bit chicken and egg really - there are numerous factors which contribute to to legislation. There are occasions where it is widely known that if you do not do something, then if it goes wrong you will suffer - seatbelts - and the law had to be changed to force people to wear them, because people were being irrational( 'I haven't worn a seatbelt in forty years and have never had an accident' etc.) The evidence supported action from a medical perspective. In other areas, it was good old fashioned social science research which led to the results being fed to policy makers, who then drafted the legislation.
Whatever the route, evolution or revolution, if safety is enhanced then all the better. But a fait accompli like removal of the rights of those injured to sue in many ways is disappointing but in a wierd way logical even if I do not agree with it.

Hello
I really think folk should look at the bigger picture here.

The part of this that should be ringing alarm bells is:-

The clause also provides a power to amend other health and safety legislation which does not fall into these categories, enabling the policy to be extended should this be required in the future.

It is a blank cheque to sweep away any regulation the minister doesn't like the look of, and that minister (which ever party that may be) will not have to refer the matter to Parliament. Just like FFI, the minister could bring it in with a simple signature.

This could fundamentally undermine the whole legal basis for H&S in this country. The only possible brake would be the EU - but if this country gets an opt out from various sections of Euro law, this may go too.

As Ray says, I just hope their Lordships are awake on Wednesday evening!

John

When we move into opt outs etc we move into high politics and the labyrinthine world of politicians judging where the next alliance is. Labour, Conservative etc etc are all at it. Can you see any more unlikely alliance than in Northern Ireland?

Whether politicians can use the ministerial powers to remove other than strict liability in other areas of law or extend it to repealing of any legislation will be one to haunt the supreme court when it is challenged. At this time however strict liability and restrictions on access to the courts in the case of accidents is a real problem. IOSH really ought to have seen the change coming and become involved in the debate. Instead members all joined the chatter about claims culture and pumped up the bandwagon to make access to justice harder. Many still join this group as we try to make capital out of what are considered unwarranted claims. We need to face the real management inadequacies not simply make blame of employee statements or claims of fraud.

In fact we do need to get some research undertaken into the actual level of Fraudulent claims because these really should be the point at issue. I suspect that the percentages will be a lot less than we realise. The fact that claim numbers increase is perhaps due to two factors - Ability to access the courts and Increasin gly poor management practices.

Bob

@22/Bob:

http://www2.warwick.ac.u...search_finds_spiralling/

I know, it's union and a bit in the past.
The government is not going to do it, or pay for it, because they're on an agenda.
The IOSH is not going to do it, ditto.
Members on here are, by and large, anti-union and anti-union-rep.
Another thing about revoking laws they cannot, is that the EU will do the "court" thing anyway...so not so much the offended person/group.
None of "them" want out of the EU otherwise we would be given a straight IN/OUT offer in a referendum. The figures show about 70% would vote OUT...so that won't be the question.
Probably we'll be offered a "shall we renegotiate" poll.....which of course we can't do anyway WITHOUT first proffering a "we want out" ticket under article 60 (or 50...whatever) of the Lisbon Treaty....that'll not be done then.
Still, there is always the chance they'll just forget about us and go their own happy way....

And all we have between their fantasies and our lives are the EU ?
Choices, choices.

I must admit to finding some of the contortions of our legal system confusing at the best of times so I would like to pose the following questions to those who do better understand such matters.
If some of the opinions expressed here are proven to be accurate then I can see why there is concern. However, I can easily find plenty of comment /opinion around that says that the proposed change is unlikely to be as significant as suggested here.
The TUC Press Release in October 2012. (Strict Liability in H&S.) informs me that:
“In fact there are very few cases where compensation cases are taken on the basis of strict liability”
“Strict liability is imposed in a very narrow set of specific circumstances as almost all regulation made since 1974 has not had strict liability included.”
There is also opinion around the legal profession that the change will not limit civil claims or significantly affect success but that they will need to be managed differently. For example in the well known case of Stark v Post Office wouldn’t the Employers Liability (Defective Equipment) Act 1969 provide a route rather than the strict liability of PUWER that was applied when the claim was made?
Now those examples probably outline the spectrum of opinion from the CBI to the TUC and back again but which is actually correct?
Is it really going to prove more difficult to successfully claim where there is fault?

We seem to have strayed far and wide on this one... to return to a couple of points:

"Thousands of claims": The Compensation Recovery Unit gives the following figures for 2011/12:

- Employers Liability claims: 87.350
- Public Liability cliams: 104,863
- Unkown: 2,496

I do not think there are any statistics that would help us determine the likely effect of this change. Whilst my knowledge is anecdotal only I believe by far the majority of EL claims are based on negligence. Since the change will have no impact on thsese claims - and employers believe that the courts favour claimants there is perhaps not going to be much of a change in an employee chances of making a succesful claim.

I'm certainly not convinced that removal of the opportunity to make a claim for breach of statutory duty will result in employers "backing off" from managing risk. My experience is that it can be quite difficult to get employers to meet legal requirements anyway. But I may be wrong!

Phil

... and Lord McKenzie of Luton is clearly unimpressed!

'As the Association of Personal Injury Lawyers points out, if the Health and Safety at Work etc. Act 1974 is amended in accordance with this clause, the law relating to workplace health and safety will be returned to where it was more than a century ago, which is quite unbelievable.'