Justice needs an open door

New legislation will further reduce the number of people injured at work who can sue employers for compensation. Where’s the justice in that?

It may reasonably be assumed that the measure of any civilised society is its ability to protect the health, safety and wellbeing of the population at all times, but particularly when they are carrying out the work-based activities that benefit society as a whole, whether directly or indirectly.

Equally, wherever employers are found to be negligent in the management of workplace health and safety, there should be accountability. No one should be injured or made ill through their work, but, if they are, workers should have the support and agency to hold their employer to account, not least so that similar incidents do not reoccur.

The civil and criminal statute framework in the UK has traditionally provided just such a course of redress, enabling those who have suffered loss, injury or ill health through no fault of their own to be suitably compensated.

However, there is widespread concern that the government’s imminent introduction of the Civil Liability Bill will adversely affect these principles of redress by imposing restrictions on an individual’s ability to pursue for their loss. On 23 October, the Bill passed a third reading and will now progress to Royal Assent to be enshrined in English and Welsh law.

Primarily, it is intended to prevent vexatious claims against insurance companies for whiplash injuries by raising the threshold at which a claim can be heard in court, where legal costs can be awarded in successful claims.

Under a statutory instrument linked to the Bill, anyone with a whiplash claim valued at under £5,000, or a personal injury claim under £2,000, must seek redress under the ‘small claims’ track, where the courts only allow the successful party to recover limited costs, which almost certainly will not cover solicitors’ fees.

Thresholds and barriers

The changed thresholds – raised from £1,000 for personal injury claims – will undoubtedly also make it more difficult for workers to pursue redress for workplace injuries. Significantly more claims, which may involve complex questions of liability, will be forced into the small claims procedure. But, as legal fees are not covered, workers could be prevented from obtaining legal assistance due to their financial limitations and abandon their cases.

According to Weightmans’ An analysis of the UK personal injury market, around 50,000 people brought claims in 2016, the last year in which the government gathered statistics. The average damages paid were £3,994, suggesting that, going forwards, a substantial number of claimants will fall below the £2,000 threshold and be forced onto the small claims track.

This latest action by the government continues a worrying trend, following the revisions to legal aid provision for civil, family and criminal law cases implemented through the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act, effective since 2013.

The objectives of the LASPO reforms, as set out by the coalition government, were to: discourage unnecessary litigation at public expense; target legal aid at those who required it most; make significant savings to the cost of running the scheme; and deliver better value for money for the taxpayer.

Since 2013, legal aid has fallen dramatically, and the government is currently carrying out a full post-implementation review of the LASPO reforms. Legal aid is no longer available for many kinds of civil cases, including employers’ liability personal injury claims. Among other effects, it has reduced access to legal aid in housing advice cases – a factor cited in discussion of the Grenfell tragedy – and for the relatives of workplace fatal accident victims seeking representation at inquests. It could reasonably be argued that LASPO is denying people access to justice.

Campaign gains momentum

In anticipation of the government review, last year the Law Society published its own review, highlighting the main problems created by LASPO. It made over 20 recommendations for reversing the most damaging consequences in relation to access to justice. It also initiated an ‘Access to Justice’ campaign that included a recommendation to urgently review and update financial thresholds for personal injury claims. The campaign has produced a number of positive results. For example, the Labour party has adopted as policy a recommendation for the restoration of early advice in family law.

Restricting access to justice is unjust and unfair. While it is reasonable for the state to implement processes that are designed to deter and prevent false civil claims, this should never be at the expense of the facility for civil redress for individuals who have suffered injury, ill health or loss through the neglectful acts of others.

David Parr is director of policy and technical services at the British Safety Council