Could they be referring to the proposal of removing strict liability?

http://www.shponline.co....k-years-warns-opposition

There are of course other views in this matter

Do you mean the previous discussion on the post called “Removal of Workers Right to bring Civil Claims”.

It is on page 8 at the moment about half way down (I tried to make a short cut to the post, but could not work out how to).

Probably an amendment to Sect 7, I havent seen anything as yet

I think Brian and Chris ‘have it.

Terry re #8, I think an amendment to S7 is highly unlikely as S47 does not confer a right to civil action anyway.

It does however cut right across one of the fundamental precepts of not reducing previous standards of protection when introducing new legislation. Without repealing ALL absolute duties this change seems set to command the minds of the Supreme and European Courts for many years to come IF it is adopted.

We should also remember that Risk Assessment was very difficult to sell to the rest of the EU where absolute duties are not uncommon for injury and death by accident at work or similar. I cannot see them being too happy when we start to remove the few remaining duties. Indeed many of the problems with PUWER is that when drafted the various exemption regulations that existed were repealed and an attempt was made to use RA to effectively replace them. This left absolute duties combined with reasonably practicable ones - one only has to look at the hash of machine guarding to see the problem. With abrasive wheels we blithely think a risk assessment will allow us out of the fundamental statement that dangerous parts must be securely fenced. This technically does not then permit us to expose part of the wheel in order to do the job as absolute duty exists and the courts have already made decisions on the matter right up to the 70s. The exemption regulations legally permitted the wheel exposure and limited the duty to a degree - once repealed the full weight of the duty applies.

Cameron and Co playing to the gallery again. By the way Loefstedt shows clearly how the European mind does not understand UK legislation and court systems. IOSH really should have seen this coming.

Bob

Nice summary Phil, coudln't have stated it better myself.



Agreed, but the Post Office would have been grateful for such an amendment :-)

http://www.thompsons.law.co.uk/ltext/l0610003.htm

(for other forum-users benefit)

I too believe that on this point of law Lofsted was incorrect, his understanding seems to be very one dimensional which I find disturbing.

Only time will tell how this will all pan-out?
Let’s see if we have a rational of mind-sets in the Upper House…?

Jake

The employer ultimately controls ALL work systems and he knows that certain duties are absolute and thus strict liability exists. He chooses to undertake work knowing this and thus IS fully responsible as he can choose other methods. The employee has NO choice except to refuse and the connotations that follow. It is not simply profit motive. In spite of PUWER the absolute duty means that NO employee may touch a dangerous part and if they do so, in spite of any assessment then the absolut duty has been breached

You cannot risk assess away an absolute duty much as the HSE try to argue it. The courts have been clear that if an absolute duty the equipment is not usable then that is what the effect is. You could make legal exemptions but the HSE chooses not do so.

Bob, I still don't see how your comments are relevant to removing the strict liability offence. Yes the employer controls all work systems, but what we are (potentially) talking about here is the onset of a defect that no-one could predict or being able to identify that then leads to an injury.

In your argument (using PUWER as the example), employers would have to use no equipment within the business if they wanted to be 100% confident they would not be liable or in breach of a law, that clearly is a nonsense.

So if we're talking reasonableness, employers will need to use equipment in their business, fact. I don't believe they should then be responsible if they've done everything they could have conceivably done.

John, the example you cite (live wires) would easily be claimable under negligence as the employer would clearly not have been acting in a reasonable manner (and if such an instance happened then the employer deserves all they get). My point is that redress in your example would still be available with the removal of the strict liability offence.

I guess we will have to agree to disagree on this one!

My original post was regarding PUWER98 Reg 5 which is both wide ranging and an absolulte duty and which formed stark v post office case law (back then PUWER92 Reg 6). This is not concerned with dangerous parts of machinery, but the entire equipment its self.

"5.—(1) Every employer shall ensure that work equipment is maintained in an efficient state, in efficient working order and in good repair."

Case law - reasonable practicability.

HSE may persist with Edwards v NCB an Appeal court judgment but they ignore the subsequent judgment of the House of Lords in Marshall v Gotham (1954) which dropped the adjective "grossly".

See also commentary from paragraph 62 at

www.publications.parliam...ct/ldeconaf/183/183i.pdf

Bob,
I wasn't trying to give a full history of strict liability - simply provide a backdrop to the current discussiosn/propsoals.

It is interesting to read the Impact Statement on the propsoed change - essentially there is no evidence on any sort aside from anecdotal comments to Lofstedt. For example:

- There is no information about how many claims are based on breach of stat duty (BoSD) alone
- It is thought that most claims are based jointly on BoSd and negligence
- There is a presumption that removing strict liability alone would result in a very small reduction in claims
- It is thougut that in the absence of BoSd option lawyers may advise some clients not to proceed with a claim based on negligence alone
- It is postulated that there is more evidence gathering required in the preparation of a (pure) negligence claim so removaval of BoSD may reduce the overall claim numbers since fewer emloyees will claim.

Fascinating how these decisions - as you say, changing decades of practice - are made on such flimsy evidence.
Phil
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I agree with Bob, Lofstedt has got this wrong and clearly does not understand the underlying principles behind these matters. Shame, because in essence I think his report was very good. I also agree that IOSH have appeared to have taken their eye of the ball with this one.

I think the crux of the issue is about those injured at work and seeking redress via the civil courts through either Breach of a Statutory Duty or negligence, neither has to be cited and it is up to the court to decide whether if either or both apply. The legal process is a social utility function in that no blame is attributed because the employer is obliged to provide Employers Liability Insurance. Hence it is the insurance company who will pay out an award and as a rule they do not contest genuine claims – that is the way the law was intended.

In the case of BoSD the claim is by de facto. In negligence, the injured party would have to prove the employer was negligent, however the two principles are inextricably linked. In that, by proving there was a statutory duty to prevent the cause of the injury, the injured party will be able to establish the cause of the injury – job done. Clearly without relying on a BoSD it will make claims much more difficult for those seeking redress for injury.

I’m not sure where, or what strict liability has to do with the above and perhaps it is a red herring. All health and safety law, save for the rare exception, is deemed to be a strict liability duty; and for good reason. Incidentally, the same principle applies to all regulatory/administrative laws. Without strict liability it would be almost impossible to prosecute successfully health and safety offences, regardless of whether a civil claim followed.