Hi Gerard,

I would agree with you if the meaning of strict liability is liability
which assumes that the defendant was at fault and therefore exempts the
plaintiff from the burden of establishing this fault by the required
standard of proof and does not allow the defendant to refute the fault
assumption. Such liability does indeed generate desirable deterrence.

But if strict liability means liability imposed on desirable and
reasonable conduct, then deterrence cannot justify liability. Such
liability may well lead to over-deterrence. It can be justified by other
considerations, such as loss spreading and fairness.

As stated, I would support any of these kinds of strict liability for
workplace injuries

Israel




-----Original Message-----
From: Gerard Sadlier [mailto:gerard.sadlier@gmail.com]
Sent: Saturday, March 09, 2013 5:22 PM
To: Israel Gilead
Cc: Andrew Tettenborn; Neil Foster; Steve Hedley; obligations@uwo.ca
Subject: Re: UK: Government defeated in Lords over abolition of civil
liability forH&S breaches

Hi Israel

Your argument makes a lot of sense, when you look at the issue after the
event.

Having decided that the employer's safety precautions in a given case were
reasonable, you can then go on, as you do (if I read you rightly) to argue
plausably that strict liability is not an effective deterrant.

So far, so good.

However, I think that you look at the issue of deterrant through the wrong
end of the telescope.

The question you have to ask is whether an employer, in implementing
health and safety measures before an accident has happened is deterred by
the prospect of strict liability.

As noted previously, I think that both he and his insurer certainly would
be, if only because the employer or more likely its insurer will know that
there is a chance of escaping liability for negligence in at least some
cases - and a greater chance of grinding down the compensation payable in
many other cases of undoubted negligence by dint of stronger bargaining
power.

The decision in Israel is interesting in its adoption of an intermediate
position but on your brief (if helpful) summary I think it gives rise to
more questions than it answers, regarding the standard of proof, causation
etc., which will do little good for anyone but the lawyers involved in
answering them.

Ger

On 3/9/13, Israel Gilead <israel.gilead@mail.huji.ac.il> wrote:
> A comparative note:
>
> In a liability regime based on English law, Israeli SC made it clear
> in recent years that what was once considered strict or even absolute
> liability for workplace injuries under BSD is actually fault-based
> liability. Breach of safety regulations is a strong indication that
> the employer was negligent but it is not conclusive.
>
> If indeed not every breach of safety regulation is negligence per se,
> what then justifies the imposition of strict liability on an employer
> who acted reasonably? Obviously not considerations of deterrence (no
> need to deter reasonable conduct). So one answer is loss spreading -
> the employer is a better insurer. The other answer originates in
> considerations of fairness and distributive justice - it is fair and
> just that the employer who benefits from the risk would also incur its
> cost. That is fine and in my view desirable, but it requires a
> well-designed legislated enclave of this kind of strict liability.
>
>
> Israel Gilead
> Hebrew U.
>
> -----Original Message-----
> From: Gerard Sadlier [mailto:gerard.sadlier@gmail.com]
> Sent: Saturday, March 09, 2013 3:38 PM
> To: Andrew Tettenborn
> Cc: Neil Foster; Steve Hedley; obligations@uwo.ca
> Subject: Re: UK: Government defeated in Lords over abolition of civil
> liability forH&S breaches
>
> 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-i
>>> n
>>> -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/1
> 3030
> 6-0001.htm#13030662000795>.
>>>
>>>
>>>
>>
>> --
>>
>>
>> *Andrew Tettenborn*
>> /Professor of Commercial Law, Swansea University/
>>
>> School of Law, University of Swansea
>> Richard Price Building
>> Singleton Park
>> SWANSEA SA2 8PP
>> Phone 01792-602724 / (int) +44-1792-602724 Fax 01792-295855 / (int)
>> +44-1792-295855
>>
>>
>>
>> *Andrew Tettenborn*
>> /Athro yn y Gyfraith Fasnachol, Prifysgol Abertawe/
>>
>> Ysgol y Gyfraith, Prifysgol Abertawe
>> Adeilad Richard Price
>> Parc Singleton
>> ABERTAWE SA2 8PP
>> Ffôn 01792-602724 / (rhyngwladol) +44-1792-602724 Ffacs 01792-295855
>> /
>> (rhyngwladol) +44-1792-295855
>>
>>
>>
>> *Lawyer (n):*One versed in circumvention of the law (Ambrose Bierce)
>>
>>
>>
>>
>>
>>
>> ***
>>
>>
>>
>