I remain unconvinced.

 

If Lord Drummond-Young is right in his economic musings as to the costs of production of goods or services, why not impose strict liability of manufacturers and service providers to customers and all others injured by a product or its manufacture or the provision of a service, visiting the externalities via insurance on the end user and society as a whole? Or is it just that the compulsory insurance for employees provides a convenient port of call when a judge is faced with a claimant injured through no fault of his own.

 

Also, doesn't the standard of negligence provide a better incentive to taking reasonable steps to avoid injury than a standard which imposes liability irrespective of the care taken?

 

Parliament (or the EU) can, of course, make its own choices in particular cases, but it is not for judges to make the choices for Parliament through the artificial tort of breach of statutory duty.

 

Kind regards

Andrew 

---

From: Neil Foster [neil.foster@newcastle.edu.au]
Sent: 05 November 2014 23:17
To: Ken Oliphant; Jones, Michael
Cc: Andrew Dickinson; Andrew Tettenborn; obligations@uwo.ca
Subject: Re: ODG: Breach of Statutory Duty in the UKSC

Dear Colleagues;

I would like to add my enthusiastic endorsement to what Ken and Michael have said. I should add that even in a jurisdiction where there is a form of alternative support through statutory no-fault worker’s compensation (such as in all jurisdictions in Australia), pressures on governments to keep these payments low (in Australia partly through a bizarre competition between different States to set workplace insurance premiums as low as possible to attract businesses to their State rather than others!) means that an alternative common remedy is important for many cases; and the BSD action provides a good remedy where negligence is hard to prove. Lord Drummond Young’s comments sum up the reasons brilliantly.

Regards

Neil

NEIL FOSTER
Associate Professor

Newcastle Law School
Faculty of Business and Law

MC177 McMullin Building

T: +61 2 49217430
E: neil.foster@newcastle.edu.au

Further details: http://www.newcastle.edu.au/profile/neil-foster

My publications: http://works.bepress.com/neil_foster/ , http://ssrn.com/author=504828 

The University of Newcastle (UoN)
University Drive
Callaghan NSW 2308
Australia

CRICOS Provider 00109J

From: "Ken.Oliphant@bristol.ac.uk" <Ken.Oliphant@bristol.ac.uk>
Date: Thursday, 6 November 2014 7:23 am
To: "M.A.Jones@liverpool.ac.uk" <M.A.Jones@liverpool.ac.uk>
Cc: Andrew Dickinson <andrew.dickinson@stcatz.ox.ac.uk>, "A.M.Tettenborn@swansea.ac.uk" <A.M.Tettenborn@swansea.ac.uk>, "obligations@uwo.ca" <obligations@uwo.ca>
Subject: Re: ODG: Breach of Statutory Duty in the UKSC

Michael: Thank you for drawing my attention to that excellent dictum, of which I wasn't previously aware. Thank you also for your illuminating further observations and, in particular, for illustrating so clearly the real-life consequences of government policies in this area.

Ken

Ken Oliphant

Professor of Tort Law

University of Bristol Law School

Wills Memorial Building

Queens Road

Bristol BS8 1RJ 

Tel: +44 (0)117 954 5347

http://www.bristol.ac.uk/law/people/ken-a-oliphant/

@KenOliphant

On 5 November 2014 12:14, Jones, Michael <M.A.Jones@liverpool.ac.uk> wrote:

Ken’s point was made by Lord Drummond Young in Cairns v Northern Lighthouse Board [2013] CSOH 22; 2013 SLT 645 at [37], commenting on the policy that underlies European Union legislation in the field of health and safety at work, which is generally founded on strict liability:

 

“There are important economic reasons for taking such an approach, and indeed for making the protection afforded by such legislation applicable to all employees, whether or not they are employees of the person in breach of the legislation. The underlying economic theory is that the cost of workplace accidents is part of the cost of production of a good or service, and the most efficient way of absorbing that cost is by passing it to the ultimate consumer as part of the price of the product. In this way the cost can be insured against efficiently by the employer, with the premiums being reflected in the price. This is much more efficient than expecting employees to insure against the possible cost of injury through an accident at work; such a course would require a multiplicity of policies, and would not cater well for employees on short-term contracts, or who simply chose to spend their income on other things. Moreover, strict liability has a further advantage over fault-based liability in that it acts as an incentive to reduce the incidence of hazardous activities; the employer knows that if the risk of injury eventuates he will be liable, and thus he is encouraged to take steps to reduce the frequency with which the risk is incurred. Strict liability also encourages employers to do their utmost to ensure the least possible risk to employees’ health and safety. These economic reasons can perhaps be supplemented by the moral argument that those who consume a good or service should pay a proper price for it, including the cost of compensating those injured in the production of the good or service in question. For all these reasons, strict liability has become the norm in European Union-inspired legislation governing health and safety at work.”

 

Section 69 of the Enterprise and Regulatory Reform Act 2013 has little to do with law and almost everything to do with politics and economics. The intention is to reduce the overall cost of production of goods and services to employers/insurers by placing the burden of non-negligent injury on employees. It cannot be about reducing the regulatory burden of health and safety legislation on employers since the legislation (and its criminal sanctions) remains in place - employers still have a duty to comply with the legislation (though the resources at the disposal of the Health and Safety Executive to seek to enforce compliance are limited, and many breaches of the legislation probably go without any sanction).

 

And when an injured employee is unable to prove negligence what is the consequence? Some may be able to obtain partial recompense through social security benefits. Industrial injuries disablement benefit (which also covers some prescribed occupational diseases) provides a tiered benefit depending on the degree of disablement, but the amounts are fixed and bear no relationship to actual loss of earnings. Employment and Support Allowance provides some limited recompense (for a limited period) for some of those unable to work through illness/disability, but is certainly not universal. I recall the case (in my capacity as a part-time tribunal judge) of the bricklayer who suffered a significant injury to his hand who was unable to work as a bricklayer, but who did not qualify for ESA because to acquire sufficient "points" under the legislation both hands have to be affected. If you can perform the tasks stipulated in the legislation with one hand, but not the other, you score 0 points. As he said to me, after we had turned down his appeal, how was he supposed to support himself and his family? I had no answer, other than to sympathise and inform him that this was a consequence of the legislation. He could re-train to do a job requiring only one hand (though such jobs are likely to be clerical/administrative, for which he may well be unsuited), and in the meantime he could claim Income Support (and for his sins join the ranks of what the Daily Mail would no doubt label "scroungers"). Here was a skilled, hard-working man whose life had been turned upside down as a consequence of his injury.

 

When we speak of the the burden of non-negligent injury being placed on employees it is real people with real lives who suffer the consequences. And this is so that employers/insurers can reduce their costs/increase their profits. I am not criticising the concept of profit itself. I am just suggesting that it should be a "true profit", which means that those seeking to generate profits should pay the real costs of their enterprise, and not seek to pass on the costs to others. This is very basic economics.

 

Michael 

 

--------------------------------------

Michael A. Jones

Emeritus Professor of Law

School of Law and Social Justice

University of Liverpool

Liverpool

L69 7ZS

www.liv.ac.uk/law

--------------------------------------

---

From: Ken Oliphant [Ken.Oliphant@bristol.ac.uk]
Sent: 05 November 2014 10:22
To: Andrew Dickinson
Cc: Andrew Tettenborn; obligations@uwo.ca

Subject: Re: ODG: Breach of Statutory Duty in the UKSC

I think it is right that employers - who profit from the the work of their employees, and can protect themselves against financial risk through such things as incorporation, liability insurance and other forms of loss-distribution (eg product pricing adjustments) - should bear the costs of their enterprise rather than leaving the cost of accidental injury to fall on their employees, who have no comparable way of protecting themselves.

I don't expect the two Andrews to agree!

Ken

Ken Oliphant

Professor of Tort Law

University of Bristol Law School

Wills Memorial Building

Queens Road

Bristol BS8 1RJ 

Tel: +44 (0)117 954 5347

http://www.bristol.ac.uk/law/people/ken-a-oliphant/

@KenOliphant

On 5 November 2014 09:16, Andrew Dickinson <andrew.dickinson@stcatz.ox.ac.uk> wrote:

I tend to agree. The separation of the detailed regulation of worker safety from the law of tort is welcome, curtailing one judicial device for imposing no fault liability without explicit Parliamentary sanction. In my view, this will lead to greater certainty in the law, rather than less. The employee is, no doubt, disadvantaged, but he/she is already privileged in tort law, for example by the Employers' Liability (Compulsory Insurance) and (Defective Equipment) Acts 1969. Andrew

---

From: Andrew Tettenborn [a.m.tettenborn@swansea.ac.uk]
Sent: 05 November 2014 08:12
To: Ken Oliphant
Cc: obligations@uwo.ca
Subject: Re: ODG: Breach of Statutory Duty in the UKSC

"There is a difference though: in Germany, the statute still sets the required standard of conduct; under the ERRA, this remains for the court to determine - creating significant uncertainty which disadvantages the injured employee."

(1) In practice breach of the statute will still be some evidence of fault here. It merely won't be conclusive of liability.
(2) I don't see why workers should be better treated than other tort claimants, who face the "uncertainty" of negligence law every day.

"In this sphere, a more significant difference between the UK and Germany is that workplace accidents in Germany (and in most of the developed world) are compensated independently of fault through workers' compensation."

This is really a question of social security policy, where it's arguable that we shouldn't distinguish between the injured and the ill. And indeed we don't in this country (except in the anomalous case of Industrial Injuries Disablement Benefit); employers must already pay the ill on a no-fault basis for 6 months under the SSP scheme. Feel free to say the amounts are niggardly and could be bigger: but I remain to be convinced that there should be automatic payments of compensation as such, or damages for non-pecuniary affectation, merely because an injury happens to have taken place at work. In short, here I think we're right and most of the developed world is wrong.


Andrew

On 05/11/2014 07:07, Ken Oliphant wrote:

There is a difference though: in Germany, the statute still sets the required standard of conduct; under the ERRA, this remains for the court to determine - creating significant uncertainty which disadvantages the injured employee.

In this sphere, a more significant difference between the UK and Germany is that workplace accidents in Germany (and in most of the developed world) are compensated independently of fault through workers' compensation.

Ken

Ken Oliphant

Professor of Tort Law

University of Bristol Law School

Wills Memorial Building

Queens Road

Bristol BS8 1RJ 

Tel: +44 (0)117 954 5347

http://www.bristol.ac.uk/law/people/ken-a-oliphant/

@KenOliphant

On 4 November 2014 20:17, Andrew Tettenborn <a.m.tettenborn@swansea.ac.uk> wrote:

Not as scandalous as all that: the Germans have made their standard action for BSD dependent on fault for over 100 years, with no apparent ill-effects. See BGB 823.II, second sentence (" Ist nach dem Inhalt des Gesetzes ein Verstoß gegen dieses auch ohne Verschulden möglich, so tritt die Ersatzpflicht nur im Falle des Verschuldens ein").

Andrew

On 04/11/2014 17:34, Ken Oliphant wrote:

Sadly (and IMO scandalously), the BSD action will not be available in future for breach of health and safety regulations in the UK: Enterprise and Regulatory Reform Act 2013, s 69

Ken Oliphant

Professor of Tort Law

University of Bristol Law School

Wills Memorial Building

Queens Road

Bristol BS8 1RJ 

Tel: +44 (0)117 954 5347

http://www.bristol.ac.uk/law/people/ken-a-oliphant/

@KenOliphant

On 4 November 2014 00:50, Neil Foster <neil.foster@newcastle.edu.au> wrote:

Dear Colleagues;

Sorry to be a bit late with this one. At first glance the decision in McDonald v National Grid Electricity Transmission Plc [2014] UKSC 53 (22 October 2014)  http://www.bailii.org/uk/cases/UKSC/2014/53.html  looks like one only a lover of BSD claims could enjoy :). It is technical, long and involves a close reading, not only of regulations from 1931 and 1947, but also underlying reports going back even earlier. But it strikes me that it may have some interesting implications on a wide scale; as Lord Reed says at [138]

138. Although the legislation in question was repealed long ago, the questions raised as to its interpretation are of continuing practical significance. As the facts of this case demonstrate, the consequences of exposure to asbestos may not become apparent for many years. When they emerge, the resultant claims are often of substantial value and of considerable importance to the individuals affected, to the insurance industry and to the Government (which has succeeded to potential liabilities, particularly as a result of the nationalisation of industries in which asbestos was used). The ambit of the legislation is therefore a matter of general public importance.

Mr McDonald died (not long before this appeal was heard) from asbestos-related disease. He claimed that he had been exposed to asbestos in the 1950’s as a regular visitor to a power plant, where he was collecting a by-product of the power plant operations in his employment as a driver for another company. His claim was against those responsible for the way the power plant was run. He alleged that while waiting for loads to be prepared he would regularly be present in parts of the plant where asbestos was being mixed for “lagging” pipes, and that this was what led to his disease.

The claim in common law negligence failed, it not being shown that the limited exposure he had received created a foreseeable risk at the time. But he also made 2 claims in breach of statutory duty (BSD) based on alleged breach of 2 regulations which he claimed covered the situation. The case is an interesting illustration, to my mind, of the continuing power of the BSD action to plug gaps left by the law of negligence.

His estate's claim based on breach of one regulation succeeded at the CA and, by a 3-2 majority, here in the Supreme Court (Lord Kerr, Lady Hale and Lord Clarke; Lords Reed and Neuberger dissenting.) The claim based on the other regulation failed at the CA and also by majority of 4-1 in the Supreme Court (Lady Hale dissenting on this one.) But since he only needed to succeed on one claim, his action was successful.

I won’t go here into the precise details of the regulations and why the various claims succeeded and failed. Some of the issues considered, however, included:

• Were the 1931 Asbestos Industry Regulations confined in coverage only to the “industry” of processing and shaping asbestos? The majority said not, they were relevant wherever asbestos was used in a range of factories.
• Was the word “mixing” as used in the relevant 1931 reg a technical term referring to a stage in the process of manufacture of an asbestos product? No, said the majority, the word had its general meaning.
• Did the 1931 Regulations only “cover” those employed by the occupiers of the place where the asbestos mixing happened? No, they extended to people like Mr McDonald who were there as part of their employment by a customer of the plant, since collecting material from the plant contributed to its business.
• Where the 1947 regulations operated if a “substantial” quantity of dust was generated, did that mean that it had to be shown that a substantial quantity was inhaled? No, according to all the members of the Court. (Where this claim failed, according to the 4-1 majority, was that there had not been enough evidence at the trial of the production of this “substantial” quantity.)

One final point- the issue of causation was briefly mentioned. But all the members of the Court accepted that, in light of decisions such as Fairchild (not mentioned, but implied) and Sienkiewicz) causation could be established by “increased risk” once it was shown that some dust had probably been inhaled. See Lord Clarke’s comment at [128]. That issue would of course have been much more important in jurisdictions (like Australia) where Fairchild causation is not accepted. But that issue aside, the ongoing impact of the BSD action is clear.

Regards

Neil

NEIL FOSTER
Associate Professor

Newcastle Law School
Faculty of Business and Law

MC177 McMullin Building

T: +61 2 49217430
E: neil.foster@newcastle.edu.au

Further details: http://www.newcastle.edu.au/profile/neil-foster

My publications: http://works.bepress.com/neil_foster/ , http://ssrn.com/author=504828 

The University of Newcastle (UoN)
University Drive
Callaghan NSW 2308
Australia

CRICOS Provider 00109J

--

Andrew Tettenborn Professor of Commercial Law, Swansea University Institute of International Shipping and Trade Law 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 Sefydliad y Gyfraith Llongau a Masnach Ryngwladol Ysgol y Gyfraith, Prifysgol Abertawe Adeilad Richard Price Parc Singleton ABERTAWE SA2 8PP Ffôn 01792-295831 / (rhyngwladol) +44-1792-295831 Ffacs 01792-295855 / (rhyngwladol) +44-1792-295855

 

Lawyer (n): One versed in circumvention of the law (Ambrose Bierce)

 

 

***

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Andrew Tettenborn Professor of Commercial Law, Swansea University Institute of International Shipping and Trade Law 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 Sefydliad y Gyfraith Llongau a Masnach Ryngwladol Ysgol y Gyfraith, Prifysgol Abertawe Adeilad Richard Price Parc Singleton ABERTAWE SA2 8PP Ffôn 01792-295831 / (rhyngwladol) +44-1792-295831 Ffacs 01792-295855 / (rhyngwladol) +44-1792-295855

 

Lawyer (n): One versed in circumvention of the law (Ambrose Bierce)

 

 

***