Putting other issues with Andrew's previous comment to one side (and I
agree with Steve's remarks on this) what about the insentive on
employers to comply with Health and Safety legislation that strict
liability imports?

Surely, even if there are a few absurdities at the edges of this
regime, the greater good is served by the prevention of accidents of
this kind. That is most effectively done by strict civil liability,
backed up with criminal sanctions.

Criminal offences won't have the same impact, in all cases because
employers may often be companies in which the power to make decisions
regarding health and safety and culpability for failures in this area
are not concentrated in the same person. Insurers will not have the
same insentive to make certain that their policy holders comply, if
strict civil liability is abolished.

Ger

On 3/9/13, Andrew Tettenborn <A.M.Tettenborn@swansea.ac.uk> wrote:
> Hm. I, for one, wouldn't shed too many tears if s.62 was restored in the
> Commons. The action for BSD in the industrial context creates an
> entirely arbitrary enclave of strict liability with no sensible
> justification. If you're lucky enough to have been working 10cm higher
> than you should have been according to some whimsical EU standard, or
> the guard on the machine happened to be in the wrong position, you get
> free strict liability. If you don't happen to be in that position, then
> you prove fault. That's no way to run a legal system.
>
> That's not to deny that there is an arguable case for some fault-free
> liability in the employment context (though it's worth remembering that
> even in these straitened times there's more state assistance than in
> 1897 when Groves v Lord Wimborne was decided). But if you're going to
> have it, surely it should be across the board, if necessary with a
> pretty strict cap on recovery.
>
>
> Andrew
>
>
> On 09/03/13 06:04, Neil Foster wrote:
>> Dear Steve;
>> You no doubt expected me to post on this one! :) A good outcome. Thanks
>> especially for the link to the debate in the House of Lords. I love this
>> passage (apologies for the extended quote) from a former Justice of the
>> Supreme Court and barrister:
>>
>> "Lord Brown of Eaton-under-Heywood: My Lords, I, too, support these
>> amendments. For a number of years before the passing of the 1974 Act, I
>> enjoyed a reasonably successful practice at the Bar, often instructed on
>> behalf of employers' insurers defending negligence claims by injured
>> workmen. Mostly these claims were settled, quite often for substantially
>> less than their true value, because of course the insurers, for whom I
>> acted, were altogether better able than the claimants were to risk
>> losing them. A number of these claims were lost -I defeated them-because
>> the claimants were not quite able to assemble all the evidence necessary
>> to prove actual negligence.
>>
>> The 1974 legislation, which Clause 62 is designed to overturn,
>> introduced a sea change in the approach to damages claims for workplace
>> injuries. No longer was it necessary to prove that the employers knew,
>> or should reasonably have recognised, that their machinery, equipment,
>> systems of work or workplaces were actually dangerous, it was sufficient
>> to show that regulations designed to secure the workforce's safety had
>> been breached and that, in consequence, the employee had suffered often
>> appalling injury. Thereafter most claims were settled early, at their
>> true value and with very little in the way of litigation costs. Of
>> course, we at the Bar suffered for this change, because our personal
>> injury practices were greatly damaged, but almost everybody else
>> benefited. Injured workmen obviously did but so too did the Exchequer,
>> because benefits for their injuries thereafter were paid by the insurers
>> out of the premium moneys they had received instead of the cost being
>> put on the state. Safety conditions in the workplace were hugely
>> improved. There is nothing like strict liability, or its civil
>> equivalent, to induce employers to take proactive steps to ensure that
>> the risks and dangers are reduced to a minimum. Employers' insurers
>> therefore, since 1974, have had altogether fewer claims to meet and have
>> certainly incurred far fewer legal costs in meeting them. "
>>
>> A bit of interesting and refreshing honesty from a former insurance
>> lawyer!
>> Regards
>> Neil
>>
>>
>>
>> Neil Foster
>> Associate Professor,
>> Newcastle Law School;
>> University of Newcastle
>> Callaghan NSW 2308
>> AUSTRALIA
>> MC177, McMullin Bldg
>> ph 02 4921 7430
>> fax 02 4921 6931
>>
>> http://www.newcastle.edu.au/staff/profile/neil.foster.html
>>
>> http://works.bepress.com/neil_foster/
>>
>> http://simeonnetwork.org/testimonies/119/Neil_Foster
>>
>>
>>
>>
>>
>>
>>
>>
>>
>>>>> "Hedley, Steve" <S.Hedley@ucc.ie> 03/09/13 5:30 AM >>>
>> "The Government’s attempt to remove civil liability for breaches of
>> health and safety regulations suffered a major setback this week when
>> the House of Lords voted down the proposed amendment to the Health and
>> Safety at Work Act which would restrict injured employees to bringing
>> claims against their employers in negligence ..."
>> (more<http://www.piblawg.co.uk/post/2013/03/08/Government-defeated-in-Lords-over-abolition-of-civil-liablity-for-HS-breaches-.aspx>)
>> (Andrew Spencer, piBLAWG, 8 March)
>>
>> The Lords debate is
>> here<http://www.publications.parliament.uk/pa/ld201213/ldhansrd/text/130306-0001.htm#13030662000795>.
>>
>>
>>
>
> --
>
>
> *Andrew Tettenborn*
> /Professor of Commercial Law, Swansea University/
>
> School of Law, University of Swansea
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>
>
>
> *Andrew Tettenborn*
> /Athro yn y Gyfraith Fasnachol, Prifysgol Abertawe/
>
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>
>
>
> *Lawyer (n):*One versed in circumvention of the law (Ambrose Bierce)
>
>
>
>
>
>
> ***
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