Malcolm Underhill comments further on Lord Young’s review of H&S Laws and the Compensation Culture
20th October 2010
In my review of Lord Young’s speech at the Conservative Party Conference, I reported the former Thatcher Minister warned that his views would not be pigeonhold. Indeed, it is clear from his recently published report, “Common Sense, Common Safety” that he has the full backing of Government. The Prime Minister has written the Foreward, supporting the recommendations and asking Lord Young to remain as advisor, to work with Government departments and all those with an interest in seeing his recommendations put into effect. David Cameron echoes Lord Young’s concern over the damaging compensation culture and strongly supports the proposal to curtail the promotional activities of claims management companies.
It is clear the author has consulted widely and taken account of views from a variety of stakeholders. Lord Young has taken on board the fact that many consider the current health and safety legislation is fit for purpose. Indeed, this is supported by statistics, which show a dramatic fall in workplace fatalities, to a record low of 180 in 2009. Therefore, not all is wrong with our health and safety rules.
Furthermore, Lord Young acknowledged there was general agreement that the rise of a compensation culture is largely a myth perpetrated by the national press.
However, he is unhappy with the rise in claims management companies, who put the victims of personal injury in touch with solicitors, with the purpose of enabling those victims to pursue a claim for damages, subject to merits. It is considered that some claims management companies now engage in aggressive and wholly inappropriate advertising.
There already exists a Claims Management Regulator, to police the activities of claims management companies and this has been shown to be highly effective. However, Lord Young clearly considers more should be done, that there are some claims management companies who go too far and should be reined in. He has written to the claims management regulator inviting Kevin Rousell to undertake a review of the code of conduct.
Although there is much criticism in the report, Lord Young supports the proposition that those people who have suffered an injustice through someone else’s negligence should be able to claim redress. It is a basic tenet of law and one which we rely. It is Lord Young’s firm belief that the UK’s compensation system should focus on delivering fair and proportionate compensation to genuine claimants as quickly as possible.
I therefore hope that the Government, in its review of the civil justice system, also examines the Criminal Injuries Compensation scheme, by abolishing the current tariff system and reverting to the common law assessment of damages, to ensure the victims of crime receive the same fair treatment as those who have suffered at the hands of negligent employers and poor drivers.
In an effort to address the fear of a damages claim and to reduce the cost of undertaking risk assessments, it is proposed that risk assessment procedures be simplified for low hazard workplaces. The Health and Safety Executive are also encouraged to create periodic checklists that enable businesses to check their record of compliance.
Lord Young further proposes that the emergency services should not be at risk of investigation or prosecution when engaged in the course of their duties. He similarly wants to bring back “common sense” to educational activities. This may seem straightforward. However, in an interview after publication of the report, the author acknowledged that European legislation may thwart some of his ideas.
Not every organisation is delighted with the report. Trade unions reacted with anger, with the TUC calling it a "grave disappointment". TUC general secretary Brendan Barber said: "This report is a missed opportunity to improve the UK's workplace safety record and by failing to challenge the myths around health and safety it could actually make things much worse."
The Association of Personal Injury Lawyers (“APIL”) also expressed disappointment, as they say the proposals about advertising by claims management companies do not go far enough. APIL also accuse Lord Young of making the classic mistake of assuming a low value claim is simple; that is not always the case, particularly with workplace and clinical negligence claims. APIL calls for an efficient compensation process that delivers fair compensation.
Having secured Lord Young’s agreement to remain as advisor, the Prime Minister will be expecting changes. Those are time tabled in the “Common Sense, Common Safety” report.
The Ministry of Justice will shortly launch a consultation on Lord Justice Jackson’s recommendations for reform of civil litigation, with an anticipated implementation date of any changes, by April 2010. A year earlier, a consultation on civil justice is earmarked. Around the same time, will be the introduction of priority measures on the conduct rules of claims management companies.
Lord Young has started the debate and will continue with it. However, one suspects that as there are so many stakeholders with interests, there will be some lively discussions over the next 18 months or so. It is impossible to predict what changes will actually be made, which will have positive outcomes for the victims of accidents and which proposals will fall by the way side. One thing is for sure; that if the proposals in Common Sense, Common Safety do not work, Lord Young will not be brought back from the political wilderness, to have another bite of the cherry.
Malcolm Underhill
Partner - Personal Injury and Clinical Negligence, IBB Solicitors
