My Lords, I have listened with interest to the exchange that we have just had, but it really does not make much difference to the way I feel generally about Clause 61. If the Health and Safety at Work etc. Act 1974 is amended in accordance with this clause, the laws relating to workplace health and safety could be returned to where they were almost a century ago. Since a landmark case, the law on claiming compensation for workplace injury where the employer has breached his statutory duty has been very clear. If this change is implemented, the law will return to being complex and uncertain. It will be more difficult and more risky for people who have been injured just because they went to work to claim proper redress. More meritorious cases will be lost which means that the burden of caring for those injured workers will be borne by themselves, their families or the state, rather than by the wrongdoer. The litigation process will be more protracted and expensive, which is exactly what the Government are trying to avoid. The costs of bringing claims will inevitably increase, which means that there is every chance that insurers will increase premiums—something which I think that the Government are also anxious to avoid.
Currently, Section 47(2) of the Health and Safety at Work etc. Act states:
“Breach of a duty imposed by health and safety regulations shall, so far as it causes damage, be actionable except in so far as the regulations provide otherwise”.
In practice, this means that if a worker is injured and he can prove that the employer has breached his statutory duty, he is entitled to claim compensation. This is the basis on which workplace injury claims are usually brought. The law on this is clear, it is well understood by all parties, and legal appeals in this field have been almost unheard of in recent years. It has also been the basis upon which health and safety legislation has been drafted and passed by Parliament, with a dual purpose of setting out the criminal law, and giving people injured as a result of breach of that law a right to compensation.
Without this legal provision, the injured person would be obliged to rely only on the law of negligence to claim compensation. However, the law of negligence is much more complex, as the burden of proof lies with the injured worker, when it is the employer who holds all the knowledge about the workplace systems, tools, procedures and so on. This means that much more evidence has to be gathered, more witnesses interviewed, and more documents provided if the case is to succeed. This is time consuming, and can be a very difficult situation in which to succeed, because the guilty employer holds all the cards.
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A typical example has recently been provided to me by the Association of Personal Injury Lawyers, which of course deals with these cases. The example would be the case of an employee who is provided with special breathing equipment to enable him to work in a fume-filled environment. The equipment is faulty and the employee is fatally poisoned as a result. At the moment, the employee's family would have to prove only that there had been breaches of the statutory regulations in order to claim compensation. If the
proposal in this clause goes ahead, however, the family would have to go much further and prove that the employer knew that the equipment was faulty.
Proving what the employer actually knows is incredibly difficult. It is certainly far more difficult than proving the fact that regulations put in place to protect the worker had been breached. If this clause is enacted, all workplace accident claims will be required to rely only on the law of negligence. According to the Government's own figures, this would affect at least 70,000 cases in England, Scotland and Wales.
As we know, the Government sought a review of health and safety at work law. I understand that a report has been produced. But the report recommended that there should be a review which would of course include a certain amount of consultation. To my knowledge, that sort of review has not taken place, instead of which we have Clause 61. In addition, at a time when Health and Safety Executive inspections are subject to swingeing cuts, this move is a charter for rogue employers simply to flout regulations in the double comfort of knowing that they are both unlikely to be prosecuted and that it will now be easier for them to avoid meeting their responsibilities to injured workers under civil law.
I understand that the Government have introduced this clause because they seem to believe that there are fraudulent claims. Perhaps they believe the kind of statements that are sometimes made in the trade press that we face a compensation culture in this country. Employers of course have to take out employers’ liability cover. Are insurance companies a soft touch? No one who really works for an insurance company, as I once did, could ever believe that. When I was young, I worked in the accident claims department of a large insurance company. We handled such claims. I always felt very sorry for the workers involved in accidents at work. They were often persuaded to settle for far less than their claim was worth because they were poor and they needed the money. I felt then that the workers needed representation and perhaps that is one of the reasons why I became a trade union official. I believe that they needed representation and they certainly were not getting it then.
This particular clause will make it much more difficult for individuals injured at work to get the right and fair level of compensation. For that reason, the TUC opposes this clause. It has to be understood that we now have the Health and Safety Executive and we now have healthy and safety at work legislation, to which we have made reference. This does at least give some protection to workers. I am sorry to learn that the Health and Safety Executive is facing cuts. It should not be: it should have more support rather than less.
For all these reasons I believe that the clause should be opposed. This is something that should not be in legislation before this House. People often work in very dangerous employment. If we are to support them and ensure that they get proper compensation, and their families get compensation if they are killed, really, this legislation must be heavily opposed.