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How Brexit Could Affect Personal Injury Claims - Nikolai Llewellyn, Hugh James

21/11/16. Many of our clients would be forgiven for being unaware of the sheer amount of EU-based regulations and directives that UK lawyers utilise when assisting clients to pursue personal injury claims. In this article I consider how a ‘Brexit’ could affect a UK citizen’s ability to make a personal injury claim.

Why and how EU law applies to UK personal injury claims

When the EU Parliament passes a directive, Member States are required to turn them into law within their respective countries and to set a deadline for such laws to come into force. Each directive sets out minimum requirements and fundamental principles.

In the UK, EU directives are turned into UK law by Statutory Instruments. Statutory Instruments are a form of short cut which allows EU law to become our national law without our government having to go to the trouble of creating new legislation that would have to pass through parliament.

The best example of this in personal injury law is the European Framework Directive on Health and Safety at Work, which the UK adopted in 1989. This directive of course played a pivotal role in changing the landscape of health and safety law in the UK and, which in many people’s view resulted in substantial improvements to the health and safety of UK citizens in the workplace, as it forced employers to tighten practices or face being hit in the pocket by claims against them where their health and safety practices had been found wanting. It came into force in the UK under the Health and Safety at Work Act 1974.

The basic command that the EU issues to its member states when creating new directives regarding personal injury law is that the law in each member state must at least reflect the minimum standards set out in the European law. Whilst each member state is entitled to put in place additional measures to make the requirements even more stringent, they cannot allow the standards in their countries to fall below the minimum set by the EU. This therefore provided all EU citizens with the guarantee that no matter which EU country they worked in, they would be afforded the minimum standard of health and safety by their employers and where that wasn’t the case there was a clear avenue for redress.

Until now therefore the EU has granted UK citizens additional protection, which supplemented the existing UK law that was already in place.

How things might change if Brexit goes through

At the present time nothing will change unless our government passes new law to revoke the old European laws that have now formed part of our own law. Therefore whilst we might now be leaving the EU, without the UK government taking some positive action to repeal the old European laws they will continue to be relevant to us.

It therefore very much depends upon the appetite of our government for change.

There are signs however that things may change. Certain newspapers and politicians have attacked what they consider is a “claims culture” in the UK. They argue that such a culture is a drain on the insurance industry and on the UK economy in general. Many lobbyists are putting pressure on the UK government to take action to address this so-called “claims culture” by making it more difficult for personal injury claimants to obtain compensation.

It could be argued that this process has already started to happen. As a result of the coming into force of section 69 of the Enterprise Act 2013, since 1 October 2013 the direct enforceability of the provisions of many regulations relating to health and safety ended. Prior to 1 October 2013, if an employee suffered an accident at work that resulted in injury, which was caused by their employer’s breach of a particular regulation relating to health and safety, the employee would be guaranteed compensation (provided of course that medical causation could also be established). However, this is no longer the case. Proving that an employer has breached a particular regulation does not now automatically result in the employer being obliged to pay out compensation. A breach of a regulation is now just a factor that a judge will take on board in considering whether an employer has been negligent making it much more difficult to obtain compensation than was previously the case.

Arguably, the introduction of section 69 of the Enterprise Act was a contravention of the basic EU requirement that the law in respective Member States must at least reflect the minimum standards set out in the European law. Given the right case, I’m sure at some point a bold personal injury lawyer would have taken up the challenge of testing the legality of section 69 at the ECJ. However, if we do leave the EU this will never happen.

At the present time we are all waiting to see what will come of the government’s appeal of the recent Court of Appeal decision regarding Article 50. If the appeal succeeds and Brexit eventually becomes a reality, it will be a case of ‘watch this space’ to see if the government will commence a purge of all the statutory instruments that have brought EU law into force in this country. There is of course now nothing stopping our government from doing so.

Nikolai Llewellyn
Hugh James

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