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Trade Union Lawyer Ellie Reeves gives her view on Lord Young's report into health and safety and “compensation culture” – “Common Sense, Common Safety” – published on 15 October:
Young's report offers no new evidence or research and appears to be based entirely on opinion which at times is both confused and contradictory.
His terms of reference were: “To investigate and report back to the Prime Minister on the rise of the compensation culture over the last decade coupled with the current low standing that health and safety legislation now enjoys and to suggest solutions.”
Although Young refers to “compensation culture” as if it were a fact, he concedes that it is “perception rather than reality” and that it is this perception that leads employers to be overcautious when attempting to interpret health and safety in the workplace:
“We have all read countless media stories blaming health and safety regulations for all manner of restrictions on our everyday life…there is no end to the constant stream of misinformation in the media. Again and again ‘health and safety’ is blamed for a variety of decisions, few of which actually have any basis in health and safety legislation at all.”
Yet, even though Young identifies the insurance industry as having encouraged the myth of the compensation culture and caused organisations to be overly risk averse, they are the main beneficiaries of his proposed reforms.
Instead of confining his recommendations to ones that would dispel the compensation culture myth (which would be welcome) he hits injury victims, by recommendations which will undermine health and safety and further load personal injury procedures in favour of insurance companies.
As a fervent Euro sceptic Young rails against the EU for overburdening business with health and safety red tape but the day to day reality of what health and safety regulations actually do means that his much trumpeted plans to tear up regulations have largely been thwarted.
He does suggest simplified risk assessments for “low risk” workplaces such as shops, classrooms and offices - a move which will condemn a significant sector of the working population to a second rate health and safety regime - and whilst he has accepted that individuals cannot be liable for the consequences of a voluntary act unless negligence can be proved (he acknowledges that it is a media myth that they are) he suggests legislating to achieve ‘clarity’ on the issue.
A public information campaign aimed at debunking the myths about people’s rights to sue others makes sense, but legislating against a perception is impossible and pointless, all the more so when the existing provisions of the Common Law and the common sense of the Judiciary have ensured that desirable activities and good faith activities are already protected.
For reasons that appear to be ideological rather than anything to do with the terms of reference, Young seeks to meddle in the way personal injury cases are run by recommending that employers’ liability (EL) claims should be brought into the new personal injury claims process which started in April to speed up the settlement of road traffic accident (RTA) claims worth less than £10,000.
Although initial serious difficulties with the RTA process have been resolved it still has flaws such as claimants (including trade unions) not having an equal say in the electronic portal and changes are still needed to bring the portal in line with court rules (identified before the system went live) which cannot be made until March 2011.
It is impossible before then and far too early generally to say the process is working effectively and should be extended.
His recommendation also flies in the face of a review of the personal injury claims process started by the Ministry of Justice (MoJ) in 2007 and completed last year. In that review the idea of including workplace injury claims in the RTA process was considered and rejected by the MoJ. Trade unions, consumer groups and claimant lawyers opposed lumping RTA and EL cases together because workplace accident claims are more complex than RTA cases and the relationship between employers and employees is very different to that between two drivers.
An extension would give employers the opportunity to put pressure on workers and their colleagues, who may be witnesses, before their lawyers can record the evidence accurately.
Even some with in the insurance industry have said that EL claims are too complex to enter the RTA process.
Young also recommends introducing the recommendations made by Lord Justice Jackson in his review of civil costs. This will hit injury victims, undermine union legal services and limit the ability of charities to represent injury victims.
A consultation on Jackson is due soon. That will be an opportunity to question why – other than for ideological reasons – the government appears to want to press ahead with reforms that will save no money, disenfranchise injured people leaving them unable to find lawyers to take on their case because the lawyers wont be paid if they take them on and lose.
Ellie Reeves is a Trade Union Lawyer and Member of Labour's National Executive Committee
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