I noticed this case in the news, but didn’t think about commenting as there really wasn’t much to comment on. However, Bucko did and we have been engaged in a discussion about it over at his. As the comments thread to his post is now somewhat extended, I thought a post here would clarify why we disagree.
Firstly, the facts of the case:
A class of children were painting scenery for a school show. Because the paper they were painting was too big to fit on the desks, the teacher(s) responsible decided to lay it on the floor and have the children paint it there. One child bumped against another causing the boy in question to fall whereby a paintbrush pierced his eye, causing him to lose the sight in that eye and suffer permanent brain damage. According to the reports, the brain damage means that he will not be able to support himself or live independently. Hence his parents are suing for £2.5 million in compensation.
The immediate reaction from Bucko – and I very much doubt he is alone as he has an anonymous commenter who clearly adopted a similar position – is that the claim is wrong. So, is this a frivolous case?
No, frankly. It is precisely why the law works in the way that it does. While it is true that there has been a rise in the compensation culture in the UK, encouraged by the no-win-no-fee parasites lawyers, this is not one of them. So let’s see why.
Firstly, the case hinges on whether the accident was foreseeable. Yes, it was. Indeed it was entirely foreseeable. Think about it, a group of children moving about on the floor crouching over long, thin paintbrushes. Also bear in mind that around a third of all mishaps in the workplace (and this is a workplace) involve slips, trips and falls. Therefore, a fall of some kind was foreseeable to a reasonable person. The likelihood of someone being stabbed in the eye with a paintbrush is pretty freaky and unlikely, but not unforeseeable. The judge made exactly that point:
In her written ruling, Lady Dorrian said: “Foreseeability is not the same as frequency – an accident might rarely happen yet nevertheless be foreseeable.”
She said that the teachers present at the time seemed to be aware of some dangers but had not taken others into account.
“When one looks at the whole circumstances of the use of the brush a real risk of injury emerges as foreseeable,” she said.
This analysis is absolutely right. Risk assessment is not a black art steeped in mystery, nor is it necessarily a bureaucratic exercise involving all the right boxes being ticked (if you think that, you have missed the point and I accept that many do). It is, if done properly, the application of common sense. At its most basic it is nothing more than asking a few simple questions: “what could go wrong?”, “What would happen if it did?” and “How likely is it?” You then ensure that you cover the possibilities, bearing in mind both likelihood and consequence. It’s why you look both ways and wait for a gap before crossing the road. It really is that simple. A group of children crouching over their work, absorbed in what they are doing is a recipe for one of them to stumble and the long, thin brushes do pose a risk in such circumstances. I facetiously used that old cliché; “you’ll have someone’s eye out with that”, but ask yourself why is it a cliché, it is because the accident is foreseeable.
English common law has been with us since the time of Richard II. Its system of judgement is derived using precedent. So, unless it is a new situation (a test case), previous cases are used to make judgements. It is a simple and sensible type of law. Under this system we all have a duty of care towards our neighbours. It’s why we insure our cars (irrespective of statute law), so that the insurer can take responsibility for our liability in the event of us being responsible for an accident. It’s why employers have liability insurance (again, irrespective of statute). It is why you can find yourself sued by a trespasser. Okay, so it may not seem sensible in some circumstances, but the overriding principle is sound – don’t cause injury to others through your acts or omissions.
The teachers in this case were acting in loco parentis and failed in their duty of care through their omission. This is not a matter of opinion; that this child has lost an eye and suffered brain damage makes it a matter of fact. Again, the judge comments:
“A reasonable person in the position of the teachers would have taken steps to prevent that foreseeable risk of harm to Thomas.”
The judge said the work could have been done on separate sheets of paper with safer paintbrushes.
She added: “There was no persuasive reason why the task could not have been done at desks.”
Again, the application of common sense. No one is saying that long, thin brushes should be banned (the council’s reaction in this regard was unnecessary). No one is saying that there needs to be more regulation, merely that the teachers had a duty of care and failed in that duty of care and that had they applied common sense, the accident would have been avoided and that the steps necessary were simple ones.
As for the £2.5 million claim, Bucko and I have reached a stalemate. Personally, given the seriousness of the injury and the need for a lifetime’s support, I feel that it is about right. Bear in mind this person may live for another seven or eight decades and may need ongoing assistance during that time, along with compensation not only for the injury, but the loss of future earnings.
In summary, this case is a fairly straightforward one with the law working as it should. Common sense was not used when assessing the possible risks and a foreseeable incident arose. The subsequent claim for compensation is perfectly reasonable.
Just to explain to your readers, my disagreement on the issue.
2.5 million in compensation to offset loss of future earnings. It would take me 167 years to earn 2.5 mil. The chap is 18 and would have worked till 60. Thats 42 years.
The foreseeability (is that a word) of the event. The paintbrushes are long and pointy and the kids were working on the floor. To have one pierce an eyeball would have to be deliberate or the result of an occurrence so bizarre as to be, well unforseeable. If a kid is knealt down holding a paintbrush, force from above would have to push his head down on the pointy end while the brush end is pushed up by the floor.
There are so many ridiculus compensation claims being granted these days, as they said on the Simpsons, it’s like a lottery that awards the stupid; reading about them really gets on my tits.
Granted, this one may have not been the best example to use.
If you invest £2.5 million, you will have a decent income for life, rather than spend the capital. That’s how life insurance is supposed to work. If I die, my wife gets a lump sum that, invested, would replace my income. At least that’s how the plan was intended to work.
As for foreseeable, you are confusing highly unlikely with foreseeable. I accept – as did the judge – that the incident was highly unlikely, but pointed brushes facing upwards poses an entirely foreseeable risk. The most likely outcome would be a nasty bruise if one of the children fell against it. That it was someone’s eye was a freak, but there was no excuse for not mitigating against the possibility – to do so would have been pragmatic common sense.
You are right, this was not a good example to use regarding our compensation culture, as it is a correct application of common law. And, where is the evidence that this child’s misfortune is a consequence of his stupidity?
I was not suggesting that the childs misfortune was a consequence of his stupidity. I was saying that in general, people claim compensation for their stupidity and thats what gets on my tits. I wasn’t applying that to this case as the child obviously was not at fault.
Bucko, yes, I realise. However, I was making the point that this example is not a trivial claim. Far from it. It’s a pretty horrific injury by anyone’s standards.
Look at it this way; if a child of yours came home from school missing an eye and suffering permanent brain damage, would you think it okay to take the hit for a lifetime of care or would you expect whoever caused the accident through their negligence to take some responsibility and compensate you for your loss?
And, just another one for you to ponder; now that he has lost an eye this child is now owed an extra duty of care by anyone looking after him as the loss of an eye would leave him totally blind. Daft? Nope, legal precedent. 😉
I am writing out a letter with a pen in my own home and I slip and the pen is forced into my eyeball blinding me in that eye.
I could ‘foresee’ that this might happen so I should have found some other way to put pen to paper, perhaps wearing safety goggles would be a sensible solution.
I am writing my signature out in a bank using the bank managers pen. I slip and the pen is forced into my eyeball blinding me in that eye.
The bank manager could foresee that this might happen so he should have given me adequate eye protection when he demanded my signature and gave me his pen.
He didn’t do this so I am going to sue him for foreseeing a possible accidental injury and not providing me with adequate protection.
There is no-one to sue in the home based version of this fictional story except perhaps the pen manufacturer who doesn’t hand out safety goggles with every pen they sell.
But wait what if those goggles are ‘glasses design’ without an elastic band to hold the goggles to my head and I poke my eye out with the arm of the goggles then surely I have to sue the pen manufacturer and the safety goggle manufacturer and the retailers involved because they could all foresee such an accident occurring and did nothing to prevent this accident from happening.
It goes on and on and on. I really do believe that this ‘always someone else to blame’ culture that has been created in this country will mean we all end up as housebound zombies.
The childs life has withuot a doubt been horrifically altered through no fault of his own and had he been painting at home and this accident had occured then who would be to blame?
I always look at a situation as though it were me or someone close in order to help form an opinion.
As I have stated, care is provided by the state. This family will not take a financial hit for it.
In your legal precedent there is a clear cut case of negligence. No PPE provided equals negligence. PPE provided but not used equals stupidity.
Can we agree to disagree now? 🙂
Why should the taxpayer pick up the tab for someone else’s negligence? Okay, yes, in this case, the council tax payers pick it up as they are effectively the employer, but the principle is that the person(s) responsible should compensate as that is the basis of English common law.
So is this one. I referred you to Paris v Stepney Borough Council out of interest to illustrate legal precedent. Something else to consider and you will probably feel that it is absurd – most people do – but even if the employee is stupid, the employer is liable. It’s known as vicarious liability.
Frank, that’s a nice little strawman you’ve built there. Any time you want to engage with what I’ve actually said here as opposed to what you would like me to have said, feel free.
Re 2.5 million compensation – why should the person be given a sum of money that has to be large enough to produce an income from? Can the insurance company have the capital back then when he dies? Why should his heirs benefit? Or should he get a yearly allowance rather than a lump sum? If we are generous and say he had 50 earning years ahead of him, at (say) £30K/year, that equals 1.5 million, absolute top whack. More likely less because its very unlikely he’d earn above average wage for all of those 50 years. Given the soldiers who lose arms, legs and eyes only get far less I think £1.5m is ample.
With regard to ‘H&S gone mad’, I would agree this case isn’t such a case. I would say yes, the school was negligent, more in providing pointed brushes to 10 year olds, than in allowing them to paint on the floor.
But the issue remains – how far does one go to mitigate against the ‘possible but not very likely’? That’s the nub of ‘H&S gone mad’ problems. Lots of things are POSSIBLE but are very unlikely to happen. At what point do you say ‘This could possibly happen, but its so unlikely that I’m not going to do anything about it.’? Its possible (for example) a child could strangle itself with a skipping rope. Do we ban skipping ropes from school playgrounds? (I ask this rhetorically, but I’ve suddenly thought they might already have been!)
Theoretically speaking every single accident could be predicted and/or prevented by some action or other. Where do we draw the line?
Good question. The compensation is not just about lost potential income. It is also about compensating for the actual physical loss. I don’t know about you, but if someone asked me to trade an eye and some brain function for £2.5 million, I’d tell them where to get off. You cannot really put a price on such things. The courts, however, have to try. They also have to try and look at the possible future outcomes – will the injury prove degenerative? Will this person have to pay for full time help? All of which is a bit of a guessing game. Given that once an award has been agreed, the plaintiff cannot go back for more, the court will try to make it a suitable final payment covering all possible alternatives.
As far as foreseeable is concerned, mitigation is based on what is reasonably practicable – which is a balancing act of time, effort and cost against the risk being addressed. In this case, it was clearly foreseeable that an accident could occur with children moving about using long, pointed brushes. That it was someone’s eye is remote, but the mitigation would be the same – do the painting on the desk with the children sitting down. The judge’s word on that were pretty conclusive, “there was no persuasive reason” why they should not have been working at the desks.
Another good question. We use common sense and take reasonable precautions. Sometimes, despite our best efforts things still go wrong. No one is saying there should be no risk (at least, not here they aren’t), merely that we address the foreseeable ones sensibly. If we get it wrong, then it is beholden on whoever is ultimately responsible to accept that responsibility.
Ask yourself this; if you cause harm to another through your acts or omissions, do you think you should walk away from it without taking responsibility for your (in)actions?
I’m not saying the taxpayer should pick up the tab for someone eles’s negligence, I’m saying they do.
If he blows his 2.5 million in the first year, then claims disability benefit and carers allowance, he will get them.
I’ve worked out that a figure of £840,000, used fairly wisely, would from the age of eighteen privide the kind of life I am accustomed to, until I turned 60.
2.5 million would do the same for my children and my childrens children.
I’ve pretty much answered this one over at yours. The court is not responsible for how the plaintiff might spend the money – and you would have a point if you said that if he did blow it, he should forfeit any benefits, given that this is why he was awarded compensation and you’d get no argument from me.
See my answer to Jim above. How much is one of your eyes and part of your brain function worth?
“”See my answer to Jim above. How much is one of your eyes and part of your brain function worth?””
You cant quantify that in monetary terms.
Sadly, regardless of the rights and wrongs of this case, I can only see one outcome – yet more curtailing of activities for children, yet more reasons for councils, organisations and private companies to curtail events and practices that have run (uneventfully) for decades because ‘something like this might happen’ and more personal injury lawyers driving Bentleys…
@ Bucko – Of course you can’t – but the court has to make an effort to do so.
Another legal precedent for you that underpins this idea; A mineshaft collapsed killing a worker. The court decided that as avoiding this was practicable, the employer should have done so irrespective of the costs involved. In other words, because we are talking about a person’s life, the cost is irrelevant. You cannot put a cost on human life yet we do it all the time when assessing risk and when awarding compensation.
Julia, we overlapped and you have hit the nail on the head. The problem is not the law and it is not the process of managing risk, it is people who lack any common sense overreacting to what they only half understand.
A classic here is the conkers case a few years back. What is the foreseeable risk posed by playing conkers? A fragment might hit a player in the eye, yes? Foreseeable, yes? Yes. But what is the likely outcome? A minor bruise causing discomfort for a few hours at the most. And what is the likelihood? Pretty low – I’ve never come across an incidence. Therefore, is wearing safety glasses a proportionate response? Of course not. The headmaster who insisted that it was, failed to apply common sense, just as the teachers here failed to apply common sense. Getting the children to sit at their desks and paint was an obvious and sensible method of risk management that anyone can figure out. Most H&S risk management measures are, frankly. The problem is the idiot factor combined with lawyers who see a fast buck to be made. Which is why folk like Bucko get annoyed – and I agree with them when they do.
More thoughts on who actually pays for negligence and is the money paid to the victim actually worthwhile considering that they get NHS support anyway at AnnaRaccoon.
http://www.annaraccoon.com/politics/medical-negligence-victims-denied-access-to-justice/ is about medical negligence, but H&S negligence is just the same.
Who actually wins? The laywers. No one else.
Longrider,
I think I have an issue with this over the requirement to mitigate every forseeable accident. That something could have been forseen (with hindsight) is not a good indication that it is reasonable to expect that it would be forseen by a reasonable person in the circumstances at the time. I certainly did not forsee the outcome as you were describing the facts – my reaction was that this was indeed a bizarre happenstance. Now both you and the judge have concluded that this was a forseeable accident, and strictly in accordance with the possibility of foresight, it was. But you are both exhibiting hindsight bias. I am not acquianted with all the facts of the case – perhaps insufficient care was taken to prevent running around those who were on the floor, or they were especially sharp paint brushes. But if all forseeable risks must be mitigated (as opposed to all those risks it is reasonable in the circumstances to forsee) then the headmaster who insisted on safety glasses for conkers is in the right: after all, you could have an eye out with one of those – it is possible.
The point being you cannot have it both ways: either health and safety is applied common sense, the mitigation of risks which we can reasonably expect to anticipate, or it is an expectation of uncommon anticipation of all risks. You wish to call it the former whilst applying the latter in hindsight.
When I was a lad at ‘senior school’ in the seventies, one unfortunate young lad had his shoulder speared with a javelin. It wasn’t his fault. The javelin was in the ground and was being extracated by another boy who pulled the sharp end out of the ground and in doing so pushed the blunt end into the unfortunate boys shoulder.
This was an ‘avoidable accident’ which is the category the majority of accidents fall into. The lad who had the javelin now embedded firmly in his shoulder was hospitalised and after an operation had his shoulder put back together with the end result that his had a permanent weakness in the damaged shoulder. The school wasn’t sued neither was the teacher in charge. The parents and indeed the boy himself took the view that ‘accidents happen’.
Today the prevailing view is every accident IS someone’s fault and if it can be construed to be someone else’s fault then that ‘someone’ must be made to pay. Sad but there it is. No win no Fee!
This sort of case is most definitely what this law was invented for. Something has gone badly wrong, and the Civil law requires that an effort be made to put it right (as far as mere humans can). It is different from the Criminal law trying to punish and exact revenge.
This case is to be considered very differently from the usual, mostly fraudulent, chance your arm, try it on, workplace “injury” claims that clogs up the courts, or get insurers to pay up because the insurers haven’t got the stamina for a fight in court.
If the latter cases were stopped before they even had their first breath, many more people would be able to grant sympathy to this youngster and the carers who must now look after him all his life. And agree that he should be provided with the wherewithal to make the best fist he can of it.
Yes, I do workplace safety for a living. Which is why I am adamant that most claims should be thrown out at birth.
Agreed that there is a degree of hindsight. However, a group of children moving about painting on the floor with long paintbrushes is a pretty obvious hazard. Slips, trips and falls are eminently foreseeable as I explained in the post (they are the most common type of accident) – anyone doing any form of risk assessment for an activity where people are moving about should be identifying this as a matter of course (and if I was looking at the risk assessment and it didn’t involve slips, trips and falls, I’d be asking why). Add in the paintbrushes and you have a potential stab injury that is easily identifiable. I would suspect that for the most part, all that would result is a very nasty bruise in the event of a fall involving one of the paintbrushes, but even so, a simple alteration of the work involving little thought and no cost would reduce the risk to near zero.
The headmaster was wrong regarding the conkers because while he correctly foresaw the potential, he failed to properly consider likelihood, consequence and apply the reasonably practical approach, therefore his solution was over the top in comparison to the actual risk – even if it did happen. The solution to the children painting, far from being excessive would be simple and pragmatic – conduct the painting exercise at the desks. See, common sense all round 😉
One final point:
You don’t because you cannot and no one is suggesting that you do. What you do is identify the risks – even the remote ones and decide how best to manage them. You may decide that the possibility is just so remote and the control measures so excessive, or that the likely outcome is so negligible, that you take the risk. It really is the application of common sense, something that failed in this case.
Indeed – and see Yokel’s point regarding this. While I wouldn’t sue for the injury you describe, I believe that the case we are discussing does warrant it as the injury is not only horrific, but has caused severe disability. Also, there was a clear case of negligence here, whereas the case you describe may not have been. Also bear in mind that if the defendant is proved to have done all that they reasonably could to prevent or mitigate a risk that still occurred, then they have a defence in law against a claim of negligence.
I know Longrider is aware of this, but for those who haven’t come across the theory of bringing a claim, this is what you need to know:
1. There must be a “duty of care” (such as that owed in law by an employer to his employee).
2. The facts of the matter must demonstrate that the duty of care has been broken.
3. The breach (in 2) must have caused loss. Any compensation is to mitigate the loss, no more and no less.
Easy as falling off a log. Unless the employer and his staff are alert to real potential dangers (the purpose of a risk assessment) and do something about it in a prompt and timely manner (the purpose of risk management), then the case will be won by the plaintiff.
That some awards may be out of kilter with other awards is necessarily the subject of a different conversation.
Longrider,
“Slips, trips and falls are eminently foreseeable”
I agree – it is reasonable to expect slips trips and falls, they are a common hazard.
“in the paintbrushes and you have a potential stab injury that is easily identifiable.”
And here we must disagree. Prior to today I have never even heard of a stab injury due to a paintbrush. Is it something that could be foreseen? Yes. However, whether it is something that would reasonably be foreseen by the individuals responsible for identifying potential hazards in the circumstances is another question. Were these teachers aware of or familiar with case histories of stabbing injuries caused by paintbrushes? Are they common, or at least notorious?
You claim that the conker risk assessment was flawed in comparison because it identified the risk but took unreasonable precautions which were not comensurate with the risk (probability X impact). I agree. But you assess that the impact is merely ‘bruising of the eye’. That assessment is based upon your experience and knowledge and is a reasonable assessment in the circumstances. If the actual impact was instead blinding, then with hindsight we would be criticising your assessment for failing to properly consider the risk.
The comparison is fair because the risk assessment is always a judgement which attempts to anticipate the future. In the absence of a crystal ball it is unreasonable to expect that all possible risks will be anticipated. We have to to make a judgement both about what might happen and its potential impact.
That the teachers did not anticipate what might happen is a failure of their imagination, perhaps, but is it any less excusable than the failure to imagine blinding as a result of playing conkers, given that neither incident is common?
I will of course happily concede the point if paintbrush stabbings are in fact more common than I realise, and that the teachers should have been aware of that.
Whereas to me, it’s pretty obvious (although, having done lots of assessments and taught others how to do it, I have a slight advantage in that I am looking for possible hazards as a matter of course). It falls in the same category as walking with scissors (or any sharp tool, for that matter). Lots of children moving about with sharp, pointy sticks facing upwards – a tiger trap in miniature. Even if they didn’t anticipate it before the work started, as soon as they saw that picture, it should have occurred to them.
Ultimately, though, it doesn’t really matter if you don’t anticipate every rare, serious injury when assessing the risk as you will have identified the slips, trips and falls and the potential for some injury as a consequence and having done so, had the children sitting at their desks, thereby covering it.
With the conkers, the possibility of a similar injury – leading to blindness – is pretty much impossible. The level of impact will be low and the object is light, so basic physics tells us that any injury caused will be minor. Therefore safety glasses are not necessary.
Even if I got it wrong, if I have done everything reasonably possible to identify and mitigate the risks, then I have not acted negligently. The teachers concerned did not identify the risks and did not apply a very simple and obvious control, therefore they did act negligently.
Of course risk assessment is a matter of judgement. That’s why you use common sense and your own experience when you ask “what could possibly go wrong?” You have a group of children milling about with pointy sticks facing upwards. I’m sorry, but they really should have seen that one coming. Not necessarily the eye and the brain damage, but the possibility that someone could fall and hurt themselves on one of those pointy sticks was staring them in the face. Then you ask, “if it goes wrong, what will happen?” As I said, in this instance if I was doing the assessment, I’d have thought probably a bad bruise or maybe even a small puncture wound if someone fell on one of the upturned brushes. Again, physics applies, a moving body has more mass and velocity than a moving shard of conker, so this situation will want a control measure whereas the conker does not. Then you ask yourself how you are going to prevent or mitigate. Why not just use smaller pieces of paper at the desks that can be joined together afterwards? Or, possibly, smaller groups more vigorously supervised (I’m guessing here as I don’t know how they were supervised). There is no effort and no cost and the risk has been eliminated. You have done all that is reasonably practicable. If, then, a child stabbed himself in the eye while sitting at the desk, you would not be found negligent in the court.
Yes, I used long, pointy brushes when I was at school and we used them sitting at the desks and no one was injured.
I acknowledge that this was a rare occurrence, and that the teachers got unlucky, but I do not accept that recognising that there was a risk and mitigating it was particularly onerous.
Yokel has helpfully explained the defence that one has against such a claim. There was a duty of care. The court clearly decided that this duty of care was breached.
“Another legal precedent for you that underpins this idea; A mineshaft collapsed killing a worker. The court decided that as avoiding this was practicable, the employer should have done so irrespective of the costs involved. In other words, because we are talking about a person’s life, the cost is irrelevant. You cannot put a cost on human life yet we do it all the time when assessing risk and when awarding compensation.”
So you are saying that all practical measures, irrespective of cost should be implemented to prevent accidents? Surely that covers just about everything? Postmen should have stabproof vests in case they get stabbed delivering letters in rough areas. All lorries should drive at 25 mph to prevent a lorry driver being killed while driving at work. Nurses should have bodyguards to prevent violent patients assaulting them in A&E. Etc etc. Where does it end?
I think much of the antipathy to H&S comes from the distinction between workplace and private. It seems ludicrous to most sensible people that an accident in the home is just that, an accident, but an identical one at work means a court case. If someone falls off a ladder at home, they can’t sue anyone, but if the same person falls at work (and in both cases its their fault) they will try to sue because compensation (that modern equivalent of manna from heaven) is there for the taking. Equally if a child had a similar accident to this one, but at home while playing with his siblings, no compensation would be available.
We need to move away from the legalistic ‘someone must be to blame for every accident and owes me compensation’ culture to a system whereby people who suffer accidents get the help and support they need, but we do not force the rest of society to wrap itself in cotton wool because employers and businesses are scared of being sued for accidents. I’m not sure how this can be achieved, if at all, but I for one am fed up of the constant one way conveyor belt of H&S requirement banning more and more things.
I personally would abolish H&S above a basic minimum and make it law that a sign stating ‘People enter these premises at their own risk’ had legal force.
I am saying nothing of the sort. There are two key terms used in safety management; “practicable” and “reasonably practicable”. Both have been determined by legal precedent. Practicable was decided in Adsett v K & L Steel Founders and Engineers Ltd [1953], where it was determined that if a preventative measure is known about, then it should be done (the context was ventilation) irrespective of cost. Reasonably practicable is the most frequently used and was decided in Edwards v National Coal Board [1949]. This means that the risk being addressed is balanced against the time, effort and cost involved to mitigate it. If that is disproportionate to the risk, then you don’t do it.
However, if the risk is such that the outcome would be catastrophic – major loss of life, for example – and the measures needed to prevent it are practicable, then expense is not an excuse for failing to do it. Edwards v National Coal Board was the pivotal one for determining “reasonably practicable”. The HSE give an example:
Without going into it in depth, this is probably the best explanation. So, actually, as the duty holder, you might decide that your postman needs a stabproof vest after all 😉
If it is the injured party’s own fault, then they will find that the court will see that as contributory negligence (Uddin v. Associated Portland Cement Mfrs. Ltd., [1965]) and award accordingly. If, as Yokel pointed out, the employer had done everything necessary to exercise his duty of care, the claim will fail. Something Lawyers4U tend not to mention in their adverts.
Yes, we do, but there still needs to be a system of redress for those – like the boy in question here – who have genuinely suffered loss as a consequence of negligence, and English common law is a simple and effective system of achieving that.
That would be a carte blanch for the unscrupulous to put people at unnecessary risk in order to cut costs – and that is merely an obvious unintended consequence. The second one that immediately springs to mind is that it flies in direct opposition of the libertarian principle of not doing harm to others. And if you do cause harm to others through acts or omissions, when did it become okay to walk away from your responsibility to the person you have injured?
Our current statute comes from the aftermath of the Aberfan tragedy. Innocent people not involved in the Coal Board’s activities died. The Coal Board was neither successfully sued nor prosecuted as the law at the time didn’t effectively cover non-employees – perhaps they should have gone to school at their own risk, eh? 😉
Actually, the Health and safety at Work Etc., (1974) Act is a basic minimum. What it says in essence is; look at your operation, identify what risks it may cause and who may be effected and manage them accordingly. English Common law places a duty of care on each of us not to cause harm to our neighbours. I’d call that common sense, wouldn’t you?
Apologies – I think that early on in this discussion, I managed to get Adsett and Edwards conflated. Sorry if that caused any confusion.
Well if that’s the case, that the law hasn’t really changed over the years, why do we have this ‘H&S gone mad’ meme that seems to grow and grow every year with no sign of stopping? Why are there people who are hell bent on stopping everyone doing anything?
Should we be attacking it from the other side – making it harder to sue for compensation? Making it so that suing for being blinded and brain damaged is still possible, but falling over on a slightly raised paving slab isn’t? How about banning liability insurance? Because lawyers follow the money. They know if there’s an insurer they’ll get the money, or the insurer may pay up just to make it go away. If there was only an individual or single small business to sue, there’d be no cash even if they won, so they wouldn’t bother. End of interest from lawyers. Probably not very practical I know.
In the end someone has to pay for the compensation culture, and its all of us, in higher costs for businesses (and therefore their products and services) and also in the destruction of our way of life.
All over the country volunteers, small community bodies, small businesses etc etc are being driven out of existence by this pernicious poison. People wonder why the country is dominated by large faceless multinational companies – its because they are the only people who can afford to pay for all the H&S crap. Everyone else just says ‘F*ck, its not worth staying in business, lets sell up and retire, its easier’. Running your own business used to be fun, now its just one piece of bureaucratic cr@p after another. H&S is a large part of that stinking pile.
Jim, the law and its application has never been the problem – even if I do believe we have too much statute, but that’s another story.
The problem as I see it is twofold. Firstly the cancer of claiming for any slight mishap that has crept across the Atlantic. The ambulance chasing no-win-no-fee lawyers have much to answer for. You only have to look at their adverts on television pressing people to sue for accidents that were “someone else’s fault”. So a mindset has taken place.
In cases of genuine negligence, you don’t need an army of no-win-no-fee lawyers as one’s own solicitor will advise (and if necessary recommend a specialist).
The knock-on effect has been a fear of being sued leading to overreaction on the part of employers, voluntary groups and local authorities. Yet, if they have exercised due diligence and are not negligent, they have nothing to worry about.
I wouldn’t ban liability insurance as in the event of a genuine claim, there needs to be money to pay for the compensation justly deserved. I think the responsibility really rests with judges who need to take a much tougher line on frivolous cases. If more of these were thrown out, it would discourage the sharp practice. If there was another way of making it harder to sue, leaving the field open for genuine cases, then I’d be happy with that. An end to no-win-no-fee might be a start.
Health and Safety never went mad – people got greedy.
Longrider,
Fair enough. I don’t want to give the impression I disagree with your analysis in general, nor do I give any credit to the ‘health and safety gone mad’ meme. What seperates us merely seems to be the mental image of ‘sharp’ paintbrushes (I agree that the slip / trip hazard was obvious, I’m not sure it would have warranted not painting on the floor as a blanket mitigation, but in this case it seems that there was little reason not to paint on the desks).
Indeed. Smaller groups more closely supervised might have been an alternative. Different paintbrushes might be another. Or, what about having the work fixed on the wall so that the sharp end of the brushes would be facing down rather than up, thereby reducing the effect in the event of a fall? There are plenty of possible options, it’s just that it appears the teachers didn’t explore them.
I can’t help wondering if any of them has ever been trained in risk assessment? While I keep banging on about common sense, at least with training, similar conversations to the one we’ve just had would take place, thereby heightening their awareness.
“The knock-on effect has been a fear of being sued leading to overreaction on the part of employers, voluntary groups and local authorities. Yet, if they have exercised due diligence and are not negligent, they have nothing to worry about.”
Yes but. Say you are voluntary organisation and you want to run some sort of charitable fundraising event, using a council playing field (for example). The council will demand public liability insurance for £Xm. The insurers will demand a fairly high premium, based on their assessment of what they could have to pay out if something goes wrong. This premium can often be more than the amount of money the volunteers hope to raise. Result – another bit of community spirit bites the dust, because everyone is afraid of being sued for something or other.
Its the inequality of risk that gets me. People take risks all the time. Hell I do some dodgy things in my line of work, but wouldn’t ever smoke, that WILL kill you! People willingly go skiing and give themselves the possible of breaking multiple bones, but if they had an accident in a shop and broke their leg would expect to be compensated for it.
I think there should be a physical injury barrier, below which you can’t sue. So only fairly serious injuries, with quantifiable loss of earnings, would qualify for compensation. And a fixed tariff of compensation, with no expenses given for legal expenses. Break a leg, get a few grand, and have to pay your lawyer out of the payout.
The demand for public liability insurance when it isn’t necessary is part of the same problem. And, yes, the premiums can be prohibitive. Yet if the councils – and it is often councils that are absurdly risk averse – did sensible risk assessments, they would realise that it is either unnecessary, or the amount of insurance is too high.
Or, if it is an event where people knowingly place themselves at risk – such as the cheese rolling event in Gloucestershire – your suggestion of “at your own risk” should apply.
The difficulty with setting a minimum injury barrier is deciding where it should be set. If someone willingly takes a risk skiing, they recognise the risk and knowingly accept it. It is not okay for an employer to put other people at risk of similar injuries. When we go to work, we expect to go home in the same state that we set out and that is a reasonable expectation. Would I sue for a cut or bruise? No. But I would for a broken bone. I wouldn’t expect a high payout, but I would expect to cover loss of earnings and depending on the break, transport. If, on the other hand, the employer was prepared to pay me my full salary while recuperating, then, no, I wouldn’t sue as I would regard that as fair recompense.
The problem occurs when you have someone fall over and bruise their bum and take the employer to court because an advert told them there was free money in it. The reason these cases succeed is because they were able to demonstrate that the employer failed in their duty of care – otherwise the case would fail. It would be nice if the judge told the plaintiff that they only suffered a bruised bum and to stop wasting the court’s time – oh, and you will have to pay the costs, please. Also, if the employers made sure they covered themselves by exercising due diligence, thereby stopping these claims when they do get to court.
And, I really do feel that an end to the no-win-no-fee malarkey would help, but my libertarian instincts stop me short of suggesting a ban. So rather than making successful plaintiffs pay their own costs – which flies in the face of the common law principle of the loser paying, make the loser pay – and if the lawyer is working on a no-win-no-fee basis, they pick up the tab. That might concentrate a few minds. But the root of all this is for employers to make sure they have got their act together so that they can vigorously defend these frivolous claims.
The conkers story is actualy a fake myth.
http://www.iosh.co.uk/news_and_events/news/latest_letters_from_iosh/09-12_conkers_with_goggles.aspx
http://www.guardian.co.uk/commentisfree/2009/dec/09/conkers-goggles-myth-health-safety
Shuan Halfpenny made up the story to show how mad H&S is. He pretty much succeeded because everyone believes the story to be true.
Interestingly, the HSE are still showing the original story as factual in their myths series.
BTW, it a “fake myth” actually true, then?