Fifty Shades of Grayling IER Liverpool 3 July 2013

Access to Justice Denied  Abolition of legal principles  New and proposed legislation  Implications for working people’s ability to access justice  Unforeseen consequences

Strict liability Groves v Lord Wimborne CA (1898)  PUWER 1998 Regulation 5: Maintenance 5.—(1) Every employer shall ensure that work equipment is maintained in an efficient state, in efficient working order and in good repair Stark v The Post Office CA (2000) Lofstedt recommendation

Implications of removing strict liability  Reliance on common law  Graham Meldrum  John Smyth

S.69 The Enterprise and Regulatory Reform Act 2013  (1)SECTION 47 OF THE HEALTH AND SAFETY AT WORK ETC. ACT 1974 (CIVIL LIABILITY) IS AMENDED AS SET OUT IN SUBSECTIONS (2) TO (7).  (3)FOR SUBSECTION (2) SUBSTITUTE—  “(2)BREACH OF A DUTY IMPOSED BY A STATUTORY INSTRUMENT CONTAINING (WHETHER ALONE OR WITH OTHER PROVISION) HEALTH AND SAFETY REGULATIONS SHALL NOT BE ACTIONABLE EXCEPT TO THE EXTENT THAT REGULATIONS UNDER THIS SECTION SO PROVIDE.  (2A)BREACH OF A DUTY IMPOSED BY AN EXISTING STATUTORY PROVISION SHALL NOT BE ACTIONABLE EXCEPT TO THE EXTENT THAT REGULATIONS UNDER THIS SECTION SO PROVIDE (INCLUDING BY MODIFYING ANY OF THE EXISTING STATUTORY PROVISIONS).

Explanatory notes  470.NEW SECTION 47(2) PROVIDES THAT THERE IS NO RIGHT OF ACTION FOR A BREACH OF A HEALTH AND SAFETY REGULATION UNLESS THE REGULATIONS EXPRESSLY PROVIDE FOR THIS. THE PROVISION APPLIES TO HEALTH AND SAFETY REGULATIONS (I.E. THOSE MADE UNDER SECTION 15 OF THE HSWA 1974) AND INCLUDES REGULATIONS WHICH ARE MADE IN RELIANCE ON OTHER POWERS IN ADDITION TO SECTION 15 OF THE HSWA 1974, FOR EXAMPLE REGULATIONS THAT ALSO RELY ON SECTION 2(2) OF THE EUROPEAN COMMUNITIES ACT  471.THE EFFECT OF THE REMOVAL OF SECTION 47(1)(B) AND THE INSERTION OF SECTION 47(2A) IS TO REMOVE ANY PRE-EXISTING RIGHTS OF ACTION ACCRUED UNDER THE “EXISTING STATUTORY PROVISIONS” AND EXCLUDE ANY CLAIMS FOR BREACH OF STATUTORY DUTY UNDER THOSE STATUTES. REGULATIONS MADE UNDER SECTION 47(2A) CAN PROVIDE FOR AN EXCEPTION TO THIS RULE, AND THERE IS A POWER TO MODIFY THE EXISTING STATUTORY PROVISIONS IN ORDER TO CREATE SUCH AN EXCEPTION.

Implications  6 pack cases  Industrial disease  Increase in accidents at work  Access to justice

LASPO 2012  Legal Aid, Sentencing and Punishments of Offenders Act 2012  No legal aid  Referral fees ban  Success fees  ATE insurance  Fixed costs  PI portal  Small claims increase

Success fees/ATE insurance  Success fee  ATE insurance

Fixed costs/portal  Fixed costs  Portal

Small claims increase No costs for injuries worth less than £5000 Psychiatric damage affecting sleep and daily activities £1000+ PTSD with 2 year recovery £2500 to £5600 Chest injury with collapsed lung £1400 to £3450 Shoulder injury with considerable pain and 2 year recovery up to £5000

Mesothelioma Bill  Scheme of last resort for untraced employers’ liability insurance claims  No consultation with claimants, support groups or trade unions  Limits support to mesothelioma victims and their families  Arbitrary cut off date of 25 July 2012 (diagnosis)  70% of damages  “Streamlining” of mesothelioma claims  changed-1 changed-1  Action Mesothelioma Day 5 July 2013

Unforeseen (?) consequences Reduced compensation Price injured victims out Cherry picking of cases Inequality of arms

Unforeseen consequences  Claims against the State  Judiciary  Increased cost to society  Increased trade union membership

And finally…  I do not represent the big bosses at the top. I represent the people at the bottom, the individual men and women … This Regulation is the enfranchisement of the corporate society and the disfranchisement of the individual. Aneurin Bevan House of Commons, 28 April 1944, speaking against a proposal to limit the right to strike  General Secretary: Is this where you get justice for our members? WH Thompson: No, this is where we get them money Conversation between General Secretary and WH Thompson on passing the Royal Courts in London