Tort Law, Politics and Responsibility

Question 1

How is responsibility linked to the compensation culture?

Answer 1

Compensation culture addresses the question of who should take responsibility for injuries.

Question 2

What did the Coalition government do to combat the compensation culture?

Answer 2

Passed statutes in two areas;

1. Strict and negligence-based liability.
2. Assessing negligence.

Question 3

What are the three broad positions on individual responsibility?

Answer 3

1. Libertarianism - you should pay the price for your own decisions i.e. you should pay for the consequences of smoking.
2. Paternalism - the state should have an active role in shaping what people do i.e. educating them.
3. Social Democracy - a position which mixes libertarianism and paternalism.

Question 4

What was the decision in Groves v Wimborne?

Answer 4

The employee was able to sue under the Factory and Workshops Act 1891.

Question 5

How was the decision in Groves v Wimborne given a statutory footing?

Answer 5

Health and Safety at Work Act 1947 S47.

This provided a form of strict liability.

S47(5) means that employers couldn’t get out of the strict liability by agreeing with the employees.

Question 6

What did S69 ERRA 2013 do?

Answer 6

Abolished all the strict liability law existing prior.

Breach of statutory duty does not give the employee the right to an action.

The employee only has an action in negligence.

Question 7

What reasons did Parliament give for changing the law?

Answer 7

1. Under the previous regime, employers were held liable for incidents they could not control i.e. actions of an employee.
2. It is now easier for employees to prove negligence - causation, standard of care, expertise (no win no fee agreements?).
3. The change brings about consistency across tort law.
4. The law is imposing costs on businesses, and this is a significant social cost.

Question 8

What would the value of choice account say about the previous regime from the view of the employer?

Answer 8

The previous regime allowed employers to avoid the burden of repair in two ways;

1. Following health and safety legislation.
2. To pass the cost of repair to the consumers of the goods or services which the employer is producing.

These are opportunities the employer would have reason to value - they want their workplace to be healthy and safe.

Passing costs on to consumers is exactly how enterprise works - including the cost of production and externalities.

Question 9

What would the value of choice account say about the previous regime from the view of the employee?

Answer 9

Employees could avoid the burden of repair by;

1. Insurance (although lots of insurance won’t cover injury in the workplace).
2. Suing in negligence (although it may be difficult to prove).
3. Suing the employer for breach of statutory duty (no longer available).

All of these opportunities are valuable, particularly the last one.

Question 10

What is the conclusion on the previous regime?

Answer 10

Holding employers strictly liable was sensitive to values on both sides.

Question 11

What is the difference in the new regime?

Answer 11

It is far more employer-friendly.

It enables employers to escape liability by proving that they have not been at fault, and the employee bears the burden of proof.

Question 12

Why is the position of the employee no longer valuable?

Answer 12

Insurance is not so valuable as it is very expensive.

Suing in negligence is very difficult to prove and is costly.