A court considering a claim in negligence or breach of statutory duty may, in determining whether the defendant should have taken particular steps to meet a standard of care (whether by taking precautions against a risk or otherwise), have regard to whether a requirement to take those steps might—

  1. prevent a desirable activity from being undertaken at all, to a particular extent or in a particular way, or
  2. discourage persons from undertaking functions in connection with a desirable activity.

Please excuse the cumbersome language. This is section 2 of the Compensation Act 2006 – a statutory provision which is rather underused by defendant lawyers (and apparently largely unknown to judges).

However, perhaps this is not without good reason. Whilst the provision’s introduction was fêted as being a powerful weapon in the hand of the defendant and judge in the fight against the rising tide of personal injury litigation seen since the late-1990s, it clearly has not had much of an effect.

Part of the reason for this may well be the slightly vague nature of the terms of the provision: firstly the word “may” instead of “must”; and the obvious subjectivity of the interpretation of the word “desirable”.

This is something of a worry to the current administration, at least following the recent local and European Elections. Concern more widely about ‘health and safety’ (particularly amongst older and more Euro-sceptical sections of the electorate, whose votes may no longer be a safe bet for the current political party in power) appears to have been taken more seriously.

It has recently been widely reported that the Lord Chancellor wants an inclusion in the Queen’s Speech setting out the Government’s commitment to statutory reform to end any ‘chilling effect’ that any such concerns may engender.

The BBC reports that the Ministry of Justice “wants to force judges to give weight to three factors in cases where people do end up facing litigation:

  • If the person was doing something "for the benefit of society", such as clearing snow
  • If they were acting in a "generally responsible way"
  • If they stepped in to help in an emergency”

It is reported that the MoJ wishes to "put the law more clearly on the side of employers" when something goes wrong at work through no fault of their own”, and that  the “law change would protect small business owners who take a "responsible approach to safety training and procedures" from the challenges of "irresponsible employees". The Lord Chancellor is quotes as suggesting that he would "want a society where common sense is the order of the day, and I believe this measure will help us get there."