The Health & Safety joke: laughter turned to tears?

02/07/2010

By Alex Drake, Associate in Personal Injury. Featured on Guardian.co.uk.

Toothpicks banned in restaurants, children made to wear goggles playing conkers and trainee hairdressers prevented from using scissors - the country has undoubtedly gone health and safety mad. A review of health and safety legislation being undertaken by Lord Young has been widely welcomed and Lord Young has himself described the operation of health and safety law as a “music hall joke”.

The review, commissioned by the government is intended to stem the compensation culture.  Mr Cameron has commented that the “rise of the compensation culture over the last 10 years is a real concern”. However, whilst everyone is quick to blame greedy personal injury lawyers for creating a litigious society, the Government’s own statistic show there are less claims being brought now than there were 10 years ago. Is it any surprise therefore that we have the perception of a compensation culture when our top officials are spreading misinformation?

The bombardment of TV adverts for "no win, no fee" lawyers is also sited as proof of a compensation culture - but this does not mean that anyone can bring a claim about anything or indeed that everybody is doing so. If everyone was so quick to claim, would there be a need to advertise so heavily for business? We need to remember that these are no more than television adverts. Just because they show someone slipping over, it doesn’t necessarily mean everyone who slips will have a claim. After all, we do not believe that a well-known brand of energy drink really gives us wings or that a  popular cream cheese is made by a cow that laughs.   

To succeed with a personal injury claim it is necessary to prove there has been a breach of a duty of care or a duty imposed by statute and each case turns on its own facts.  Where a claim involving a certain activity has been successful, this does not necessarily mean that every time there is an accident involving that same activity there will be a claim so the activity should be banned.  Restaurants need not be fearful of the toothpicks. Unless there was something wrong with the toothpick, a claim against them for injury sustained from merely using one in the usual way simply would not succeed.  In any event the potential damage likely to be caused through using a toothpick must surely be so minimal that it becomes a very low risk activity.   

It is not the legislation that is causing the problem. Most Health & Safety regulation comes from Brussels and applies equally across the EU but it seems other countries are managing to interpret the legislation in a more sensible way without it being misapplied to circumstances it was never intended to cover.

If time was taken to actually read the legislation, people would see the words “so far as reasonably practicable” are applied to a significant number of the duties. This is where the root of the problem lies, as people no longer seem able to apply common sense as to what is reasonably practicable.  

Risk assessment is about protecting lives, not stopping the enjoyment of them. Stop using health and safety as an excuse not to do things. It would also go a long way to helping the problem if the myth about our compensation culture was laid to bed so people can get on with living their lives rather than constantly fearing litigation. 

There is no doubt that something needs to be done to stop crazy decisions being made, but it is something of a concern that Mr Cameron has talked of the prospect of wide ranging reforms to the health and safety framework. Health and safety law is needed to protect workers and the public from serious harm and the Government need to make sure that the balance is not tipped in the opposite direction, leaving them at risk of injury.

What is required is sensible debate, education and an injection of common sense to prevent continued misunderstanding and wrong application of the law. Deregulating health and safety just because of populist headlines would be a mistake. The principle of protecting workers from the risk of injury must not be undermined.  Please Mr Cameron, do not let the joke turn to tears.