My noble friend Lord Attlee would like to make a short Bill shorter. I submit that this particular clause seeks, as does the Bill as a whole, to reassure ordinary, hard-working people that, when something goes wrong and they are sued, the courts will take into account that they have adopted, during the course of an activity,
“a generally responsible approach towards protecting the safety or other interests of others”.
Most people would understand that expression.
At Second Reading, we heard from my noble friend Lord Cotter how court proceedings can affect the owners of small businesses in particular. Even if they have taken reasonable steps to protect people’s safety, they might be worried about expending the time or resources defending themselves in court and some might prefer to settle claims before they reach that stage. Others will defend themselves in court but we heard from my noble friend Lady Hodgson of Abinger about the psychological effect that this can have on a defendant. She pointed out that, even if the courts reached the right conclusion, the defendant might have gone through
the most stressful and distressing time to get there, possibly putting relationships at work and at home under strain.
We hope that Clause 3 will give the owners of small businesses and employers greater confidence to stand up to those who try to bring opportunistic and speculative claims by showing them that the law is on their side. One important theme running through this Bill is that we want to stop people suing at all in cases which do not have any merit, so that a judge never has to decide any case either by referring to cases in negligence nor by virtue of this Bill should it become law.
Clause 3 is not just about protecting small businesses. In previous debates we discussed examples provided by members of the Cheshire Fire and Rescue Service who said that they had been sued by passers-by who tripped over their hoses when they were attending the scene of a blaze. During oral evidence sessions in the other place, Justin Davis Smith, Executive Director of Volunteering and Development at the National Council for Voluntary Organisations, spoke about voluntary organisations which have considered closing or stopping some of their most valuable operations because of worries about being sued. He provided an example of one charity which helped to take elderly people to hospital in the absence of any accessible bus routes. The charity was being sued after a patient slipped and broke her leg getting into a volunteer’s car and this had caused it to consider whether such activities could be continued.
The Government believe that it is right, in cases such as this, to require the courts to take into account the general approach of the defendant to safety during the course of the activity in question. This will reassure organisations that, if something goes wrong in the course of that activity, in spite of their efforts to keep people safe, the courts will always consider the context of their actions. However, the clause will not stop organisations being found negligent nor of proportionate and just decisions being reached if all the circumstances of the case warrant it.
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In a letter which I wrote to the noble Lord, Lord Beecham, I discussed the questions of health and safety. In the third paragraph, I said:
“Most health and safety duties do not provide for an employer to meet a particular standard of care and so would not be covered. In addition, since the coming into force of section 69 of the Enterprise and Regulatory Reform Act 2013, a person who suffers damage or injury through breach of an obligation imposed under health and safety legislation can no longer sue for damages for breach of statutory duty unless legislation provides otherwise. However, an employee could still bring a negligence claim against an employer and, in doing so, might rely on evidence of breaches of health and safety duties to support that claim. The Bill would apply in that type of negligence claim and the court would be required to have regard to the specific factors in the Bill along with any other factors it considered relevant”.
So it is perfectly in order for someone to sue an employee if they have been injured at work in the way in which they would do now. This Bill is not designed to reduce standards of health and safety in the workplace. What it is intended to do is to provide some reassurance to responsible employers who do the right thing but
find themselves threatened with a negligence claim when an employee is injured through no fault of the employer. It will not protect employers who do not have a responsible approach to health and safety. An employee can still bring a negligence claim against an employer. We consider that that answers the concerns which the noble Lord, Lord Beecham, expressed in relation to the possibility that this would erode the rights of individuals in some way.
I accept that the use of the word “generally” is unusual in statutory terms. It is a word that would easily be understood outside the context of statutory construction. I have listened to what the noble Lord said about that word. I want to make it absolutely clear that I do not undertake to bring back an amendment on Report but I will consider carefully whether and to what extent it adds anything to what is in the clause at the moment and whether, on balance, it takes the matter any further.
I entirely understand what lies behind the amendment in the name of my noble friend Lord Hunt of Wirral but, with respect, I consider that the matters to which he refers are sufficiently covered either in the general law relating to contributory negligence or would otherwise be reflected in the approach a judge would take to this type of case. I accept that those matters to which he draws attention in his amendment should be part of the analysis, if not specifically in the Bill in the way that the amendment suggests.