News Category 3
What Effect Will Brexit Have on Health and Safety at Work? - Mike Kemp, Thorntons
12/10/16. Narrow though the victory may have been, Britain has voted for Brexit. Whether you voted Leave or Remain it is unquestionable that the consequences of Brexit will loom large in the months and years to come. It is still unclear as to whether Britain will have access to the free market and what impact, if any, this will have on the free movement of people. Immigration was a key issue in the campaign but less discussed was the impact Brexit would have on health and safety law in this country, much of which is made and agreed upon at European level. What effect could that have on personal injury claims arising from accidents at work?
At present, there is no change to any of our laws as we remain a full member of the EU. It is only after Article 50 of the Treaty on European Union is invoked and either a withdrawal agreement is reached between the UK and the EU, or the two-year notice period elapses that there would be any change to that position. There remains no date for the UK invoking Article 50 although the prime minister has noted it will be in the first quarter of 2017.
In principle, EU law that comes from treaties and regulations would cease to apply once the withdrawal agreement is in place and the European Communities Act 1972 has been repealed. However, most health and safety regulations that come from Europe govern safety in the workplace and take the form of European Directives, not from treaties and regulations.
European Council directives do not become law in this country as soon as they are made. Before becoming law, the directives must then be implemented by each member state by either primary or secondary legislation. As a consequence, much of what seems to be British law actually implements law that was decided at a European level. It should be noted that much of this law was made with the consent of the British government and was not necessarily imposed upon us, but neither are we able to unilaterally decide to change it.
The laws put in place as a consequence of European Directives will continue to be a part of both Scots and English law until it is specifically repealed. If the regulations themselves were made using the power granted to the government by section 2 of the European Communities Act 1972 they would be repealed once the act is repealed. However, much of the health and safety law, such as the Workplace (Health, Safety and Welfare) Regulations 1992 have been enacted under the Health and Safety at Work Etc Act 1974, which would remain in force, even though those regulations expressly implement the terms of EC Directive 89/654/EEC.
The main difference is that on Brexit, the UK government will theoretically have the power to change these regulations without reference to the EU. It leaves the minimum health and safety regulations at risk of being changed, depending on the colour and make-up of the party in government. That power may be limited by the terms of any trade deal that is reached with the EU. It should also be expected that the UK government would wish to retain most or all of these regulations in order to protect workers. Indeed, some parts of the regulations go further than the EC Directives which they are, in part, implementing. The decision as to which regulations (or parts of regulations) that would be retained is a decision for Parliament.
I would expect that much of the present health and safety legislation will be retained as there does not at present seem to be a political appetite for that. Even if the regulations themselves are repealed, the standard set in those regulations have passed into common law as being reasonable standards for an employer to set in a workplace. It is likely, therefore, that Brexit will not greatly affect the ability of those injured at work to make successfully personal injury claims.
Mike Kemp is a Senior Solicitor specialising in Personal Injury for Thorntons, dealing with claims across Scotland. For more Thorntons blogs on PI and other areas of law, you can visit https://www.thorntons-law.co.uk/knowledge/blog/blog-overview
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'Litigation Is Not a War or Even a Game': Recent Decision Is a Timely Reminder for Parties to Put Their 'Cards on the Table' - Andrew Cullen, Barrister
21/10/16. The first instance decision in Nicole Chapman v Tameside Hospital NHS Foundation Trust [2016] highlights the importance of compliance with the pre-action protocol. A failure to do so can have substantial cost consequences.
Background
The Claimant brought an occupier’s liability claim, alleging that she had slipped on a leaflet on the floor of the trust’s A&E department. The Defendant denied liability and alleged that they had a proper system in place. The Defendant averred they had no documents to disclose to support their position at this stage.
Once proceedings had been initiated, the Defendant eventually disclosed documents, some 12 months after initially denying they had any relevant document in their possession, which identified the cleaning schedule for the day of the index accident. As a corollary of the Defendant’s disclosure, the Claimant discontinued their claim. The Claimant’s contention was that had they had sight of those documents earlier, as they properly should have under the Pre-Action Protocol for Personal Injury Claims, then the claim would have been discontinued much earlier, saving costs associated with proceedings.
The issue before the Court was what was the appropriate costs order after the Claimant had discontinued its claim...
Image ©iStockphoto.com/wickedberlin
The Cost of Admissions - Luke Ashby, Kings Bench Chambers
19/10/16.When an admission has been made that takes a would be fast track case into the small claims track should a Defendant pay fast track costs up to the date of the admission or up to the date of Judgment? In Cameron v Office Depot (UK) Ltd. (13 July 2016) the County Court found fast track costs should be ordered until Judgment.
The facts in Cameron were not uncommon: as a result of a road traffic collision in August 2014 the Claimant issued a claim for just over £10,000 in respect of vehicle repairs and hire charges. Liability was not disputed and in its defence of February 2016 the Defendant made a partial admission (of the repairs) thereby reducing the amount in dispute below the fast track limit.
As envisaged in Akhtar v Boland [2014] EWCA Civ 872 the Claimant promptly applied for Judgment on the admitted sum; the remainder of the claim fell to be dealt with on the small claims track. The Claimant also applied for fast track costs to the date of the Judgment. The Defendant objected arguing that fast track costs should only be ordered to the date of the admission rather than the date of Judgment.
The Court considered CPR 46PD.7 which at 7.1(3) says...
Note that Luke Ashby has since moved to 3PB, Bournemouth.
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Sorry: Is It the Hardest Word? - Nicola Edgar, Morton Fraser Lawyers
18/10/16. The Apologies (Scotland) Act 2016 received Royal Assent earlier this year and will come into force in December. The main driver for the Act is the idea that fear of litigation prevents Scots from apologising. This has a negative impact on our society as the lack of an apology can lead to people raising court actions, at great expense, as they feel they have no other recourse. Therefore, it is hoped that the Act will encourage a social and cultural change in attitude towards giving apologies by providing legal certainty that an apology will not be used against them in later civil proceedings as evidence of liability.
Why is the Act necessary?
Countries such as the US, Canada and Australia already have apology legislation in place and Scotland is now following suit. Scottish Courts are under huge pressure to deal with an ever increasing number of actions on limited resources. In addition, various private and public bodies have to cover spiralling costs in defending litigation. It was recently reported that the NHS spent £418 million last year in respect of claimants legal costs, a 43% rise on the previous year, together with a further £120 million in defending cases.
In creating a culture where apologies are given readily, some claims may be capable of being resolved at an earlier stage. Apologising is a normal, natural and socially useful way of putting things right and so the Act is seeking to ensure that no one will be penalised for apologising. The ultimate goal is that there will be a reduction in litigation and, in turn, a reduction in costs.
What is an apology?
The Act defines an apology as "any statement made by or on behalf of a person which indicates that the person is sorry about, or regrets, an act, omission or outcome and includes any part of the statement which contains an undertaking to look at the circumstances giving rise to the act, omission or outcome with a view to preventing a recurrence".
To constitute an apology within the terms of the Act, it must include:-
1 an acknowledgement that there has been a bad outcome;
2 an expression of regret, sorrow or sympathy for that bad outcome; and
3 a recognition of direct or indirect responsibility for that bad outcome.
In addition, there may also be an undertaking to review the circumstances of the incident with a view to making improvements or learning lessons.
The Act applies to all civil (not criminal) legal proceedings, with the exception of inquiries under the Inquiries Act 2005, Fatal Accident Inquiries, proceedings under the Children's Hearings (Scotland) Act 2011, defamation proceedings and apologies made in accordance with the duty of candour procedure set up under the Health (Tobacco, Nicotine etc. & Care) (Scotland) Act 2016.
Will you accept my apology?
An apology is only useful if it is accepted and it is only going to be accepted if it is genuine. Any apology which is expressed in carefully drafted terms may not sound sincere, in which case, it is likely to be rejected. However, simply saying sorry may be admissible in evidence as it doesn’t fit the definition of an apology. It will be for the court to consider whether a statement is an apology, an admission of fault or a statement of fact, the latter two being admissible and capable of being founded upon to help establish liability. Importantly, if an insured party is found to have admitted fault, it may be that their insurance cover is invalidated. Therefore, it is essential that advice is taken when considering making an apology.
The impact of the Apologies Act once it is in force remains to be seen. The hope is that an apology will allow claimants to view their case and the defender in a more positive light with less negative emotion. This should facilitate negotiations and it is perhaps more likely that a claimant will accept a settlement offer.
As a personal injury practitioner, I can see the value of, for example, the employer in a workplace being able to say sorry to an injured employee without fear of it being taken as an admission of liability. It may be the first step to mending relations and would set the tone for all future negotiations. In my experience, claimants often use litigation as a way to make the defender see the errors of their ways in the hope that procedures and practices will be changed, and that in future nobody else will have to suffer as they have. If there was an acknowledgement from the defender at the outset and a commitment to making sure it doesn't happen again, this may reassure the claimant and make them more amenable to settling the claim.
Nevertheless, it remains to be seen whether defenders will change their existing behaviour. Sceptics think it is unlikely there will be a cultural shift towards readily giving apologies and, even in circumstances where apologies are given, their genuineness and sincerity is likely to be undermined by the formula set out within the Act. Of course, claimants may also reject the apology in which case there will be no reduction in the number of court actions.
It will be interesting to see the effect the Act has in practice and whether it does indeed encourage the early resolution of disputes. I certainly think it is worthwhile considering the potential merits of making a (carefully worded) apology at the outset as sorry should not be the hardest word.
Nicola Edgar
Senior Solicitor
Morton Fraser LLP
Image: public domain via pixabay.com/en/sign-sorry-character-figure-1719892/
Summary of Recent Cases, October 2016
15/10/16. Here is a summary of the recent notable court cases over the past month. You can also receive these for free by registering for our PI Brief Update newsletter. Just select "Free Newsletter" from the menu at the top of this page and fill in your email address.
Summary of Recent Cases - Substantive Law
Jacqueline Ann Smith v (1) Lancashire Teaching Hospitals NHS Trust (2) Lancashire Care NHS Foundation Trust (3) Secretary of State for Justice [2016] EWHC 2208 (QB)
The Claimant cohabited with her partner for over two years before he died as a result of the negligence of the First and Second Defendants. Under s.1A(2)(a) of the Fatal Accidents Act 1976 (as amended), two year plus cohabitees were not entitled to bereavement damages. The Claimant sought a declaration regarding the interpretation of s.1A(2)(a), or a declaration that the section was incompatible with...
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More Articles...
- Editorial: Sentencing for International Crimes - Aidan Ellis, Temple Garden Chambers
- Claimant Loses QOCS Protection Following Discontinuance of NIHL Claim - Sarah Stutchfield, DWF
- Failure to Comply Leads to Dismissal of £60,000 Hire Claim - Mark Holmes, DWF
- Broadhurst v Tan - Patrick McCarthy, Horwich Farrelly
![Appeal judge rules that credit hire company has no costs liability following a finding of fundamental dishonesty in personal injury case: RSA v. Fastrack Solutions Limited [2023] 4 WLUK 92 - David Bowden, Erimus Chambers](/content/images/resized/images/stories/carkeys_72_72.jpg)
