1 RESPONSE by ALLAN McDOUGALL, SOLICITORS to Consultation on Damages Claims (EU Directive on Safety and Health at Work) (Scotland) Bill. Introduction This Response is submitted by Allan McDougall, Solicitors. We are a Scottish Legal firm providing a number of legal services for individuals. In particular, we have a large litigation team dealing predominantly in personal injury litigation on behalf of individuals injured at work. The vast majority of our clients are trade union members who have been referred to us as their Union s nominated panel solicitor. In an average year we handle around 1,000 work related personal injury cases. In terms of the cases we handle, these range from the minor to catastrophic injuries and unfortunately some fatal cases. We encounter all variety of work related accidents and industrial diseases (eg, occupational hearing loss, vibration white finger, asbestos related cases etc). Q1. Do you agree that Scottish workers should be entitled to benefit from the European Laws that are aimed at protecting workers? It is essential that employees benefit properly from the European Laws that are aimed at protecting workers. In our view, this means (a) the employee having the knowledge that in the event of a breach, their employer will be open to prosecution by The Health & Safety Executive, and (b) that they can rely upon the breach of the European Law in a claim for compensation. The Scottish worker s right to (b) has been eroded by Section 69 of the Enterprise Act. It is clear that prosecution alone is ineffective. Prosecution rates are far too low to have any impact whatsoever on keeping workplaces and workers safe. Following introduction of the Framework Directive in 1989, the UK Government
2 introduced a number of regulations to give effect to the various European safety directives. Between then and October 2013, vast numbers of injury cases were pursued, using these regulations. We understand that HSE statistics show that in 1991/1992, there were 368 fatal accidents in UK workplaces. By 2012/2013 this figure had fallen to 148. Is it just a coincidence or had there been a significant tightening in workplace safety as a result of the number of injury cases which have been pursued using the Regulations based upon the European directive? We believe there is a clear connection. If Scottish workers are left to pursue injury claims without the benefit of the European Laws that are aimed at protecting workers, they are left to pursue their cases based upon Common law negligence. An action based on common law negligence requires the injured employee to prove that his employer failed in their duty to take reasonable care. The injured employee requires to prove that the accident was foreseeable. This places a significant evidential burden upon the employee. To take a practical example if an employee is injured as a result of a failure in the case of work equipment, then prior to the enactment of Section 69 of the Enterprise Act, he could bring a case alleging breach of Regulation 5 of the Provision and Use of Work Equipment Regulations The very fact that the piece of equipment failed would establish that the Regulation had been breached and the employee would have a right to damages. Post Section 69, the same employee now has to rely on common law negligence, proving that the accident was foreseeable. Unless such an employee is able to uncover information disclosing previous problems or complaints with the work equipment (significantly, whether or not the defender / employer may actually be holding such information within his possession) he will have great difficulty in establishing that the accident was foreseeable and that therefore the
3 employer was negligent. We are firmly of the view therefore that the enactment of the Enterprise Act results in a clear reduction in protection previously offered to workers in the UK. Those injured or the families of those killed in accidents at work, are far less protected than they were prior to 1st October Someone injured in an accident on 30th September 2013 has a much better prospect of securing damages than an individual injured in identical circumstances on 1st October 2013 and thereafter. Q2. Do you agree that Scottish workers should have the same level of protection under the Law irrespective of whether they are employed by an extension (emanation) of the state or a private employer? The aim of the second framework directive (89/391/EEC) was to introduce improvements in the health and safety of workers at work. It applies to both the public and private sector. It lays down general principles regarding prevention and protection of workers against occupational accidents and diseases. The underlying philosophy of the directive is to create a uniform level of health & safety protection throughout the member states. That underlying philosophy fails to be applied if public sector employees have greater protection than private sector employees. The EU principle of equality is undermined. Q3. Do you agree that the Scottish Government should do everything that it can to avoid being exposed to Francovich Damages Claims? It is essential that when someone is injured at work through their employers breach of statutory duty, that the wrongdoers pays. The wrong doer is the employer who has committed the breach.
4 If the Scottish Government is exposed to Francovich Damages Claims as a result of Section 69, the cost to the public purse could be hugely significant. This is a cost which ought properly to have been borne by the principal wrongdoer ie, the employer who caused injury by committing a breach. Q4. Do you support, in general terms, the Members Bill that is proposed in this consultation paper? Unless all Scottish workers have the protection of European Health & Safety laws, the EU principles of equality, improvement and harmonisation of Health & Safety protection throughout member states are undermined. Prosecution rates are worryingly low and therefore a robust system of health & safety legislation with the threat of compensation cases acting as a deterrent, is essential. In addition, compensation cases based on common law negligence alone place too significant an evidential burden upon the employee. Q5. Do you agree with the opinion of Aiden O Neill, QC, that the proposed Bill would be within the legislative competence of the Scottish Parliament? Q6. What do you consider would be the financial implications of the proposed Bill, either for you or your Organisation, or more generally? As matters presently stand (ie, post October 2013) a private sector employee seeking to claim damages for an accident requires to establish common law negligence. Placing (as detailed above) a more significant evidential burden upon the employee, such cases are lengthier, involve more detailed analysis and the ingathering of evidence to establish that the employer, knew or ought to have known that such an accident was likely to occur. More detailed documentary and expert evidence is required in such cases.
5 On the contrary, cases pursued in terms of European Laws (often carrying principles of strict liability) are often far more straightforward to pursue. The situation imposed by Section 69 leads, in our view, to the likelihood of longer and more complicated litigation and therefore increased legal costs. The changes suggested by the proposed Bill would, in our view, lead to more streamlined litigation and reduced costs. Q7. Do you think the proposed Bill would have any positive or negative implications for equalities? We believe the proposed Bill would have a positive implication in relation to equality. Since 1st October 2013, a public sector employee injured at work has better access to justice when seeking compensation as compared with a private sector employee injured in precisely the same circumstances whilst at work. The Bill which is proposed seeks to remedy this situation