While attention has focused on those sections of the bill dealing with Legal Aid and sentencing, other parts could also prove to be disastrous for those people seeking compensation because of an injury at work caused by the employers’ negligence.

Union members will be among the millions who are deprived of the ability to claim compensation, or who will lose damages.  As many as 25% of injury claims will not be brought.  Those that proceed might lose up to 25% of damages for the success fee and further substantial reductions for required legal expense insurance.

Background:

When legal aid was cut right back in 1999, mechanisms were put in place to ensure all reasonable legal costs could be claimed by the winning party, to protect access to justice especially for those on a low or modest income.  These included recoverable legal expense insurance premiums and union self insurance premiums and additional sums by way of a success fees.  This also meant successful injured claimants were able to keep in full their compensation from negligent defendants. The Government now intends to legislate so that these additional sums can no longer be recouped, seriously restricting access to justice, particularly for those on lower/middle incomes.

The parts of the Bill relating to these issues including Employers Liability cases are found in Clauses 41 to 44 and Clause 51. Other reforms to implement Jackson will require changes to the Civil Procedure Rules or other secondary legislation and will be the subject of a further consultation in due course.

Impact:

Many people will no longer be able to obtain representation, particularly for low value/complex cases. However although a claim of £3,000 or £4,000 may be considered to be low value by the Government, it is not low value to a cleaner who earns £6 an hour and represents four months wages. Even if representation can be obtained many on a low/middle income may decide not to claim, being unable to fund disbursements upfront or due to concerns about their costs risk. Those able to press on will face deductions from their damages. Unions and advice centres who presently provide free legal services to their members will often find this is no longer possible.

There will also be other effects. By reducing the threat of litigation in workplace accidents and diseases, health and safety at work will be undermined. The money taken from claimants and their representatives won’t benefit the treasury, but the big insurers will gain a windfall.

The alternative:

There is no need for such draconian action. There are clear alternatives which will protect access to justice while reducing costs. The streamlined claims process for Road Traffic Accident claims (which make up 75% of all PI cases) introduced last year already seems to be effectively reducing costs. The fixed success fees in place could be reviewed and potentially extended. Further steps could be taken to promote early admissions and avoid unnecessary disputes.

The HSE figures are more or less accurate for what they are meant to show, but it is how they are used that is important. After all they are certainly not the number of people killed by their work or even the number of people killed AT the workplace. They are simply ‘reportable deaths’.

Reportable deaths are those that occur as a result of an injury while at work. It does not however cover people who are driving as part of their work, such as lorry drivers, or sales people. North Sea oil workers are included, but not if they are killed while in a helicopter. Also if a person dies 11 months after the injury they are counted, but not if they die 13 months after.

But the biggest omission is those who are killed by a disease caused by work. In some cases, such as mesothelioma it is usually possible to show that the death is caused as a result of work (asbestos exposure), but in many others it is more difficult, especially in the case of cancers that are widespread in the general population such as breast cancer or lung cancer. That is why you have to estimate the number of cases.

The HSE estimates that just over 8,000 deaths are caused each year by occupational cancers, although many specialists believe that is a considerable underestimation. The TUC has indicated that it believes that a figure of 15,000 would be more realistic.

In addition there are around 4,000 deaths from other lung disorders such as chronic bronchitis and emphysema caused by breathing in fumes chemicals and dusts. There are also all those who die as a result of cardiovascular disease caused by the nature of their work. This can either be stress (which can more than double your risk), or exposure to certain fumes and chemicals. This is much more difficult to assess but an estimated 66,000 people report work-related heart disease each year. Even if only 5% of deaths from cardiovascular disease were to be work related, that would mean that 7,500 people die as a result of health or circulatory problems caused by their work.

If you also include the 1,000+ people who are killed while driving on the roads as part of their work then, using the most conservative estimates, at least 20,000 people die prematurely every year because of occupational injury or disease, but the real figure could be nearer twice that.

That means that the figure that we give for the number of deaths at work is actually well under 1% of the number of people who actually die as a result of their work.

It is the deaths from injury that are the ones that make the newspaper headlines, but a life lost to disease is just as much a tragedy. Because these often take place in a hospice behind closed curtains, often years after the person has left work, there is less awareness, or concern. And it is not only deaths that many people are unaware of. In total, 1,200,000 people currently in work say they suffered from ill-health that they thought was work-related.

Focusing on the official figure of 151 fatalities at work also means that we have a totally unrealistic view of how safe the workplace is. This allows politicians and the media to rubbish health and safety.

It is that reason that the TUC is campaigning to reclaim health and safety from the knockers and those who try to undermine in because it suits their own purpose.

We have just produced a report called The Case for Health and Safety which spells out why health and safety is as relevant today as it has ever been. After all 20,000+ deaths is no laughing matter.