On 1 April 2013 a new era dawned for claimants in personal injury cases and despite what you may hear from insurers and defendants, it is generally not for the better. I refer to new rules surrounding recoverability of costs for claims and the fact that claimants are now expected to fund success fees and insurance policies from their own pockets. The ambit of this blog does not extend to discussing these changes in detail but see Ali Malsher’s Commentary for a good summary of these changes.
It has been the government’s stance that it is not trying to limit access to justice for claimants by these changes. However, running alongside these reforms are further attempted reforms which are very difficult to interpret in any other way than making it more difficult for claimants to bring a claim. For example, the government is trying to change current legislation to remove strict liability on behalf of an employer.
Strict liability is where an employer can be found to be automatically responsible for an accident at work in certain circumstances. For example, an employer is currently under a duty to ensure that any work equipment which is supplied to an employee should be free from faults as per Regulation 6 of the Provision and Use of Work Equipment Regulations 1998 (PUWER). There is a well known case called Stark v Post Office  which demonstrates this very well. In that case Mr Stark was a postman. He had been given a bicycle by the Post Office to do his rounds. Whilst he was cycling, the front brake broke causing him to be thrown from the bicycle and sustain injury. Although the defective brake could not have been detected by inspection or maintenance (the failure was caused by metal fatigue), the Post Office were held responsible for the accident as they had supplied the bicycle as work equipment and were strictly liable for its faults. At the moment, an employee does not have to prove that an employer had been negligent, for example, by failing to inspect and maintain the work equipment.
The doctrine of strict liability is extremely important to employees. Not having to prove negligence redresses the balance between the average employee and the might of an employer. How would an average employee know if certain equipment had been properly maintained? Even if they were privy to this knowledge, how would they prove that a failure to maintain made any difference to the equipment not working properly and causing injury?
Fortunately for now the government has failed to have the amendment to health and safety legislation approved. On 6 March 2013, by a very slim majority (225 to 223) the House of Lords voted against the removal of strict liability for employers. However, it is unlikely we have heard the end of it. So what would it mean if the government ultimately succeed?
Up until 1 April 2013 I would have been confident in being able to say that, okay, having to prove negligence is going to create more work for a claimant’s solicitor but it could be done by way of expert witness evidence. If there was no strict liability and Mr Stark had come to me for help, I would have requested his employer’s inspection and maintenance records for the bicycle. After reviewing these I would then have instructed an engineer to prepare a report covering issues such as how often should the bicycle have been inspected?, was it is properly maintained? and, if it was not, did the failure to maintain cause the brakes to fail? If the engineer concluded that the metal fatigue was something that could and should have been detected had the bicycle been properly maintained then Mr Stark would succeed.
If Mr Stark had his accident after 1 April 2013 and came to me for help then if strict liability is abolished I probably wouldn’t even get as far as that. Indeed, Mr Stark might find it extremely difficult to engage the services of a solicitor if the value of his claim is relatively modest. This is because a claimant will now not be entitled to recover costs which are disproportionate to the value of the claim, even if the costs are for work which was essential in order to win the claim. So, say Mr Stark’s claim was worth £3,000. An engineer’s report which would be vital for proving negligence could in itself cost £3,000. Add on top of this solicitor’s costs (which will soon be restricted in employers’ liability cases), the cost of a medical report and court fees, Mr Stark could be looking at a costs bill exceeding £10,000. Only proportionate costs will be recovered from his employer even if he is successful in his claim. A firm of solicitors would not be in a position to take on a case where the majority of costs for running it are not recovered. Add on top of this that Mr Stark would also be responsible for paying a success fee and insurance premium out of his compensation. It is then easy to see how the recent changes have everything to do with limiting access to justice.
In the House of Lords debate, Lord McKenzie of Luton accused the government of pandering to myths about a compensation culture. I consider this to be true. We do not have a compensation culture. It is a myth, the flames of which are fanned by the media, the insurers and now the government. Seeking an amendment based on a perception rather than a reality and which swings the balance of power back into the hands of employers is lamentable. For now strict liability remains but its future is uncertain. What is certain is that any changes will not be for the benefit of a claimant.