We live in changing times as we update on important developments affecting personal injury practitioners.
Jury asserts its independence
The recent jury case of Dorothy-Anne Scott v Jack Parkes involved a 51 year old mother at time of trial (47 at time of death) who lost her 19 year old son in an road traffic accident. She claimed damages including loss of society (solatium). The defender was previously convicted of causing death by dangerous driving and so liability was admitted in the civil action. Expert evidence showed that the pursuer was suffering from a prolonged grief reaction and was unlikely to improve. The jury awarded £86,000 which was more than the £80,000 limit of the range given by the Judge in his direction.
£100,000 jurisdiction limit likely
The proposed privative jurisdiction limit for the Court of Session has been reduced from £150,000 to £100,000 in the Courts Reform (Scotland) Bill which continues its progress through the Scottish Parliament. The Faculty of Advocates remain unhappy with the new threshold, which looks likely to become law.
The change will shift a large proportion of injury litigation from the Court of Session to the Sheriff Court. The insurance industry may be pleased if the change makes it more difficult for parties to recover the costs of instructing counsel with a resultant drop in the legal costs borne by the industry. However the new national personal injury Sheriff Court proposed for Edinburgh may provide a safe haven for Counsel to practice and obtain sanction for their employment in lower value cases.
The Enterprise and Regulatory Reform Act 2013
Main PI Change
From 1 October 2013 the Act prevents claimants injured in consequence of a regulatory breach from relying on the strict liability or "reasonable practicability" tests to establish liability against the employer. To succeed the employee now requires to establish common law negligence or failure to take reasonable care. The employer's hand is strengthened in defending such claims and placing obstacles in the path of claimants succeeding.
More difficult for Claimants
A large body of regulations have been enacted to protect workers across industry and commerce, many in implement of EU Directives, most imposing either strict liability upon the Employer where injury resulted from a breach or based upon a failure to take steps which were reasonably practicable in the circumstances. So, we have regulations governing manual handling, work equipment, personal protective equipment, confined spaces, control of substances hazardous to health (COSHH), work at height, construction, scaffolding, mines and quarries, merchant shipping and the list goes on. The regulations still impose criminal liability but now, if the employee seeks damages for an injury, he must prove failure by the employer to take reasonable care for him at common law.
Onus of proof shifted
Under the old rules if an accident happened in breach of a strict duty, e.g. an unguarded machine, then the employee needed to prove nothing further and the only live issue was contributory negligence. If the duty on the employer was to take reasonably practicable (i.e. possible) steps to avoid the hazard then, after the claimant proved the accident appeared to have happened as a result of the employers breach, the onus would shift to the employer to show he did everything reasonably possible. Employers would usually be unable to do this.
1. For Claimants: Investigations
Because employers control the workplace, they will usually have possession of investigatory documents relevant to liability. Conversely, employees may be at a disadvantage in obtaining evidence against the employer prior to raising proceedings. Gathering basic evidence about what happened may be impossible if the pursuer was rendered unconscious or killed as a result of the accident. The change as it stands, therefore, not only imposes an added legal burden on employees, but a greater evidential burden which in certain cases may be difficult to surmount.
An example of this can be found in Regulation 6 of the Electricity at Work Regulations 1989. This requires all electrical equipment that may be exposed to the effects of the weather be constructed or protected so that danger doesn't arise. Strict duties apply because of the catastrophic results if something goes wrong, for example, a maintenance engineer working alone at a grid supply could be electrocuted and killed by a weathered cable with worn insulation. In this scenario, the employer is liable under the regulations because the employee should not have been exposed to such risks. The employer could be prosecuted with a heavy fine imposed. However, in order to be successful in their claim, the family of the deceased must show negligence. They may require to recover maintenance records and prove by expert evidence that the wear and tear was something the employer ought to have known of. So, despite clearly defective plant, the employer may have a defence to a civil damages claim.
2. Employer accountability
The argument that employers will still require to account to the criminal or regulatory authorities for actionable breaches and that therefore worker protection should be unaffected by the changes is not borne out in a climate of ongoing resourcing problems and funding cuts at HSE and the Procurator Fiscal service. Proactive inspection of workplaces has fallen away and technical prosecutions are more difficult for a hard pressed Procurator Fiscal service. This may mean the claimant has no criminal or other investigations he can utilize which will make his task more expensive and difficult.
3. Two tier system
The Francovich rule (which was set down in the 1990 European Court of Justice Case of Francovich v Italy) states that it is a principle of Community law, inherent in the system of the EC Treaty, `that the Member States are obliged to make good loss and damage caused to individuals by breaches of Community law for which they can be held responsible.' The general EU rule is that a worker should be able to recover damages for an injury caused by a directive breach. Thus public sector employers and those considered to be "emanations of the State" can be sued for damages directly under the relevant EU provisions and bypass the more restrictive UK regulations.
Accordingly, we now have the anomalous situation where two employees from different employers working together e.g. on the same building site and injured in the same accident could in one claim succeed where the employer was a public sector body and in the other fail as a private sector employee. There are likely to be thousands of cases where success or failure turns upon the category of employer rather than the nature of the accident.
A further exception applies to female workers who, if pregnant at the time of the accident, will still be able to bring a civil claim for breach of regulation without having to prove negligence.
Tactics for Claimants
1. Refer to the regulations
As evidence of negligence a claimant can still refer to the extended "six pack" regulations as a marker for the steps that a 'reasonable employer' ought to be taking in the context of their common law obligations. The regulations will therefore still play a part in proceedings, albeit they will no longer occupy the starring role.
2. Refer to Acops (Approved Codes of Practice), HSE guidance and Hierarchy of Controls
The HSE site gives access to hundreds of Acops and guidance documents indicating good practice in a given industry and currently recognised risks in the sector, for example, the guidance on Legionella infection highlights the current knowledge of risks and good practice in testing and purging of water systems. The Acop can be used as evidence of what the ordinary prudent employer exercising reasonable care should do and can support averments of negligence if he fails.
The hierarchy of hazard controls is a system used in industry to minimize or eliminate exposure to hazards. It is a widely accepted system promoted by numerous safety organizations. It is taught to managers in industry, to be promoted as standard practice in the workplace. Various illustrations are used to depict this system, most commonly a triangle.
The hazard controls in the hierarchy are, in order of decreasing effectiveness:
For example, if a manager wished to properly control the risk of injury from a team of painters working at height in an exposed location, he should first consider whether the work could be carried out at ground level (to eliminate the risk). If it was reasonable albeit inconvenient to do so then failure to alter the system could be evidence of an unsafe system of work. If the hazard could not be eliminated the next most effective measure is substitution, e.g. lead - based paint substituted for acrylic paint. Next most effective if the higher controls cannot be applied is engineering controls such as screening or separating the employee from the hazard. In the first example, if the employer could not avoid the need for work at height, he could erect an effective barrier or gantry to protect the men from falling. Weakest in the hierarchy are measures involving human compliance or cooperation such as training, warnings and provision of protective equipment.
There are likely to be many occasions under the new provisions where the defender pleads that the employee had training or a "tool box talk" and that the employer had therefore complied with its common law duty. In such cases the hierarchy is an indicator of accepted good practice industry. Many of the extended 6 pack duties implement the table for specific activities.
3. Refer to convictions or enforcement notice action by HSE.
4. Refer to breach of the provisions of The Management of Health and Safety at Work Regulations 1999 which allows civil action for breach of its provisions, including those requiring risk assessment and provision of training.
No decisions under the new provisions have been reported so far but it will not be long before pursuer's agents will require to engage with the rules where court action is raised.
If you have any questions about developments in pursuer personal injury claims please contact us on the details below.