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Compensation for Industrial Injury and Disease*

Published online by Cambridge University Press:  20 January 2009

Roy Lewis  and
Geoff Latta
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Abstract

The article contains the authors' evidence to the Royal Commission on Civil Liability. It discusses the main sources of compensation for industrial injury: the State's industrial injuries scheme, occupational sick pay and common law damages. Under each head the role of trade unions is assessed.

State benefits provide compensation for injury, disablement and death, but impose a narrow definition of accident and disease. The adequacy of the level of benefits is also questioned. The common law system, moreover, is criticized on several fundamental grounds including cost, uncertainty, delay, legalism and the adverse effect on industrial safety.

The authors propose the abolition of common law damages, provided the resources involved are used within a reformed State scheme. State benefit payable during absence from work is envisaged at 90 per cent of average post-tax earnings, with the employer legally obliged to pay no less than the equivalent amount for the initial period of absence. There would also be payments for loss of earnings after a man returns to employment, for non-pecuniary losses and to compensate the widows of those killed in industrial accidents.

Type
Articles
Information
Journal of Social Policy , Volume 4 , Issue 1 , January 1975 , pp. 25 - 55
Copyright
Copyright © Cambridge University Press 1975

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References

1 Ison, T. G., The Forensic Lottery, London: Staples Press, 1967.Google Scholar

2 Atiyah, P. S., Accidents, Compensation and the Law, London: Weidenfeld and Nicolson, 1970.Google Scholar

3 For earlier defences of the tort system see Williams, J. L., Accidents and Ill Health at Work, London: Staples Press, 1960Google Scholar; and , R. and Thompson, B., Accidents at Work, London: Twentieth Century Press, 3rd edn, 1968.Google Scholar

4 After the Report of the Royal Commission of Inquiry on Compensation for Personal Injuries in New Zealand, Wellington: Government Printer, New Zealand, 1967Google Scholar – the ‘Woodhouse’ Report; and the Commentary on Royal Commission of Inquiry into Compensation for Personal Injury, Ministry of Labour, Wellington: Government Printer, New Zealand, 1969.Google Scholar

5 Described by Curzon, C., ‘Compensation for Accidents at Work’, Gazette, Department of Employment, London: HMSO, 07 1969.Google Scholar

6 The Report of the National Commission on State Workmen's Compensation Laws, Washington, 1971.Google Scholar

7 Committee on Safety and Health at Work 1970–72, Report, London: HMSO, Cmnd. 5034, 1972.Google Scholar

8 Op. cit., para. 450.

9 The project is based on the London School of Economics, and is financed by the Social Science Research Council. For a summary and discussion of the results of the survey, see Latta, Geoff and Lewis, Roy, ‘Trade Union Legal Services’, British Journal of Industrial Relations, vol. 12, 03 1974.CrossRefGoogle Scholar

10 Report, Robens, op. cit., paras. 10 and 408 and Tables 1–3, pp. 161–3.Google Scholar

11 Ibid., Appendix 9, Part III, para. 13.

12 Department of Health and Social Security Annual Report 1972, London: HMSO, Cmnd. 5352, 1973, p. 112.Google Scholar

13 L.S.E. Survey.

14 The assertion by the Robens Report that ‘there is no scope for “bargaining” on safety’ (op. cit., para. 66) is highly debatable.

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16 H.M. Chief Inspector of Factories, Annual Report 1972, London: HMSO, Cmnd. 5398, 1973, p. 126.Google Scholar

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18 In the Health and Safety at Work Bill, which was introduced on 21 March 1974.

19 ‘Occupational Pension and Sick Pay Schemes’, Department of Employment Gazette, London: HMSO, 08 1971.Google Scholar

20 This showed some widening of coverage since the comprehensive survey for 1962: Report of an Enquiry into the Incidence of incapacity for Work, Part 1, Ministry of Pensions and National Insurance, London: HMSO, 1964.Google Scholar This was the main empirical basis of Sick Pay Schemes: A Report, National Joint Advisory Council, Ministry of Labour, London: HMSO, 1964Google Scholar, and was also used in Reid, G. and Robertson, D. (eds), Fringe Benefits, Labour Costs and Social Security, London: Allen and Unwin, 1964.Google Scholar

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23 This may well be a reflection of members' attitudes; see Wedderburn, and Crompton, , op. cit., p. 97.Google Scholar Recently the T.U.C, has exhorted its affiliates to negotiate improvements in sick pay: Review of Collective Bargaining Developments No. 2, 1972, T.U.C., para's 64–71.Google Scholar

24 Orman v Saville Sportswear Ltd [1960]Google Scholar, 3 All. E.R. 105.

25 Report of the Chief Registrar of Friendly Societies, 1970, Trade Unions, London: HMSO, 1971.Google Scholar The statistical situation after 1970 is confused in view of the non-registration of T.U.C, affiliated unions.

26 Under the National Insurance (Industrial Injuries) Act 1946, now replaced by the Notional Insurance (Industrial Injuries) Act 1965.

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31 Despite the limited presumption to the contrary in s.8 (1), National Insurance (Industrial Injuries) Act 1965.

32 The figures quoted below do not take into account changes from 22 July 1974, consequent upon the budget statement of March 1974.

33 The Social Security Act 1973 will bring further changes in the calculation of the supplement.

34 The figures for the supplement are an under-estimate since in practice small ranges of earnings are banded together in order to avoid payments of odd amounts, and average weekly earnings are arrived at by dividing annual earnings by 50 rather than 52. The figures are based on the rate of supplement payable after 4 January 1974.

35 D.H.S.S. Annual Report 1971, op. cit., p. 117Google Scholar; Table 130, p. 358; Table 131, p. 359. Comparable figures for local tribunals were not published in the 1971 Report.

36 D.H.S.S. Annual Report 1972, op. cit., p. 126.Google Scholar These figures are exclusive of the work done by pneumoconiosis medical boards.

37 Ibid., p. 127.

38 Ibid.

39 D.H.S.S. Annual Report 1971, op. cit., Table 130, p. 358.Google Scholar The 1972 Report does not give this statistic.

40 D.H.S.S. Annual Report 1971, op. cit., Table 131, pp. 359–60Google Scholar; D.H.S.S. Annual Report 1972, op. cit., p. 127.Google Scholar

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43 Labour's Programme 1973, Labour Party, p. 69.Google Scholar

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46 Report of the Committee on Personal Injuries Litigation (the ‘Winn Report’), London: HMSO, Cmnd. 3691, 1968, para's 38–42.Google Scholar

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48 Administration of Justice Act 1970, 5.22.

49 Davie v New Merton Board Mills [1959], A.C. 604, 627.Google Scholar

50 Employers' Liability (Compulsory Insurance) Act 1969, s.1 (1).

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53 See generally Commission, Law, Report on Personal Injury Litigation – Assessment of Damages, London: HMSO, 1973.Google Scholar

54 Law Reform (Personal Injuries) Act 1948, National insurance Act 1971, s.3 and sch.5, para. 1.

55 The law on several of these points is not altogether clear, especially after Parry v Cleaver [1970] A.C.1.Google Scholar

56 Commission, Law, op. cit., para. 141(f).Google Scholar

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70 Ison, , op. cit., p. 179.Google Scholar

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75 The estimate of the L.S.E. project in respect of victims of industrial accidents. A similar proportion was suggested for all accident victims by Ison, , op. cit., p. 213Google Scholar, and Atiyah, , op. cit., p. 229.Google Scholar

76 See Abel-Smith, , Zander, and Brooke, , op. cit., pp. 137–40, 150, 169–78.Google Scholar This was a study of legal services in three working class London Boroughs. In the cases of about a third of those in the sample who had suffered very serious personal injury no.legal advice was taken at all (p. 169).

77 Our arguments here are entirely in respect of industrial safety, though other writers have expressed similar views about the effect of tort liability on road safety; see Atiyah, , op. cit., pp. 565–600.Google Scholar

78 Report, Robens, op. cit., para. 439.Google Scholar

79 Ibid.

80 Defective safety practice by management must be viewed in the context of a factory inspectorate which is reluctant to prosecute; for a sociological explanation of this reluctance see Carson, W. G., ‘Some Sociological Aspects of Strict Liability and the Enforcement of Factory Legislation’, Modern Law Review, 07 1970.Google Scholar

81 Ibid., para's 434–8 and Appendix 7.

82 Also on the grounds that they would anyway fail to promote safety. See generally the strictures of Simpson, R. C., Modern Law Review, 03 1973, p. 192Google Scholar; Howells, R. W. L., industrial Law Journal, 12 1971, p. 185Google Scholar; Woolf, A., Industrial Law Journal, 06 1973, p. 88.Google Scholar

83 The fact that inspectors' reports are not readily available to plaintiffs, in contrast with police reports in road accidents, is a continuous and justified trade union grievance.

84 D.H.S.S. Annual Report 1971, op. cit., pp. 356–7, Table 128–9.Google Scholar These estimates of administrative cost of State benefits exclude the employers' administrative costs in collecting contributions. Medical assessments are the factor which push up the administrative cost in the injuries scheme.

85 If that should prove to be difficult when any future tax credit scheme is introduced, then it would be feasible to base the compensation on 100 per cent gross earnings with deductions for tax as if the recipient were still at work.

86 Cf. the proposed body in the Health and Safety at Work Bill.

87 Report, Roberts, op. cit., para. 447.Google Scholar

88 Social insurance Part II, London: HMSO, Cmnd. 6651, 1944, para. 31.Google Scholar

89 Cmnd. 6404, para. 80.

90 Ibid., para. 81.

91 Abel-Smith, B. and Townsend, P., The Poor and the Poorest, Occasional Paper on Social Administration No. 17, London: Bell, 1965Google Scholar; Sainsbury, S., Registered as Disabled, Occasional Paper on Social Administration No. 35, London: Bell, 1970, Chap. 4Google Scholar; see also the literature of the Disablement Income Group (D.I.G.), e.g. D.I.G., Creating a National Disability Income, Occasional Papers No. 12, 1972.Google Scholar

92 Ison, , op. cit.Google Scholar; Atiyah, , op. cit.Google Scholar; O'Connell, J., The Injury Industry, Springfield, Ill.: University of Illinois Press, 1971Google Scholar (on US road accident compensation); Elliott, D. W. and Street, H., Road Accidents, London: Allen Lane, 1968.Google Scholar

93 E.g. the improved attendance allowances and the general disability benefit proposed in Labour's Programme 1973, Labour Party, p. 70.Google Scholar