Encouraging public organisations not to make health and safety decisions because they fear they may be sued by introducing a 'no-fault' compensation scheme for all victims and requiring a successful court claim to demonstrate that the organisation acted recklessly.
Health and safety legislation was originally introduced for the workplace and is designed to enforce the necessary rules by prosecuting an employer criminally liable if the requirements are not met. Although unfortunate incidents still occur, the UK has the best workplace safety record in Europe. In 2006 the UK rate of work-related non-transport fatal injury of 1.3 per hundred thousand workers was about half of the EU average of 2.5.
However in addition to the criminal law, the civil law also plays an important role in health and safety matters. In particular a person who suffers an injury in any sphere can sue the person they believe to be responsible for 'tort' which is the form of law that can force someone who is liable for the injuries to pay damages.
However courts may not be the most appropriate place for seeking redress for personal injuries. Tort compensation originally applied to property damage where the replacement value is a market price. However it is much more difficult to quantify the injuries to a person's body and mind and even more difficult to decide on the compensation for pain and suffering.
For the two largest classes of personal injury compensation claims, road accidents (about half) and workplace injuries (about one-third), the cases hardly ever reach court. Settlements are made 'in the shadow of the law' by insurance companies with payments approximating the expected award in court. This cuts costs and normally speeds up the payment.
In 1972, New Zealand introduced the first universal no-fault insurance scheme for all accident victims which provides benefit from the government run Accident Compensation Corporation without respect to negligence. In 1973 The Royal Commission on Civil Liability and Compensation for Personal Injury (Pearson Commission) was set up in the UK to see how personal injury claims could be simplified. The Commission reported in 1978 and made recommendations for tort reform but few of its main recommendations were accepted by the government.
One key area is medical injury where the increase in no-win, no-fee actions against the health service has increased the proportion of payouts paid to claimants' lawyers. Success fees and insurance premiums taken out by lawyers to protect against losing the case have been recoverable from the NHS since 2000. The NHS Litigation Authority stated that legal fees accounted for almost half of the £312 million damages claims closed in 2008. Patients' legal costs exceeded the damages that they received in more than one in five cases. The blame orientated basis of tort claims is also not conducive to the culture of openness required by clinical governance and the NHS Plan.
The NHS is however only one of many public bodies which have been greatly influenced by the threat of compensation claims. Health and safety decisions are increasingly not taken in a measured way but because insurers or the bodies themselves do not want to give any opportunity at all for a tort claim to be brought against them. This leads to ridiculous bans such as those on hanging baskets in streets, children playing conkers at school or graduating students throwing their hats in the air. Public bodies are seen as running a 'nanny state'.
The Jury Team therefore proposes that in relation to all public bodies and bodies operating in the same sphere as public bodies (e.g. private hospitals or independent schools) there should be a no-fault compensation system similar to that operated in New Zealand. It will operate on the same principles as the well-established Criminal Injuries Compensation Board and will provide compensation on a fixed tariff for a particular injury without the need to go to court. This will cover the NHS, schools, universities, local authorities, police, government agencies and similar organisations. People who thought that their award was too low will still have their common law right to go to court but if a public body (or equivalent) were involved they will have to show that the organisation acted recklessly rather than just negligently as currently. This will lead to a substantial reduction in insurance expense and will be paid for from such organisations by a levy per employee which, as a result of the saving in management time and legal costs, will be expected to be substantially less than the current costs.
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