The Compensation Act 2006 By Charles Lewis, barrister (and functo officio) Recovery It has taken me a long time

to recover from the Compensation Act 2006, perhaps the weirdest piece of legislation this control freak government has yet created. But now, having eventually gathered some composure, I offer the following commentary on the two disparate nonsenses of the Act. FIRST Fairchild I wont go deeply into Fairchild MLC 0786 again. It is all in my book (at least up to the beginning of last year), which you have already read. Suffice it to say that we know that the Fairchild exception is a very narrow one. In the mesothelioma situation (or one similar) where one only of a number of exposures to asbestos has caused the disease (by the single entry into the body of the victim of a single fibre) and it is not possible in the current state of science to identify the causative exposure, the victim (or exposee) may recover damages for his injury from any negligent exposer. I am not going to debate the actual limits of this novel exception to standard tort law. They are all the while being defined, redefined and refined, latterly in Barker v Corus (UK) MLC 1358 in the House of Lords last May (and the recent Court of Appeal decision in Brett v University of Reading MLC 1191 is worth a glance, too). No, the point I am on about here is as follows: before the House of Lords decision it was unclear whether the exposer who was being sued was liable for the whole of the injury or only some proportionate part, perhaps based in some way on the period of exposure for which he was responsible as against any other periods of exposure. In the Barker case both the court of first instance and Court of Appeal held that each exposer was liable in full (in solidum oh dear, the judges are still using Latin, Lord Woolf will be so cross), rather than pro rata (damn, done it again!). That meant that the defendant would have to sue for contributions against any other negligent exposers. But of course in this sort of employment situation it is common for other exposers and indeed their insurers to have vanished into thin air, wound up or whatever. Rationalisation Now in terms of judicial rationalisation the Fairchild concept was based on the 1972 House of Lords decision in the McGhee case MLC 0007 (the case about lack of showers at work, brick dust and dermatitis) . Yet right from the birth of the Fairchild concept there has been an energetic and continuous division of judicial opinion as to whether in McGhee the House of Lords was saying that a defendant who negligently increased the risk of an injury that materialised was, on the one hand, liable simply for increasing the risk (which would be a fundamental breach of tort law or in any event an amazing innovation), or on the other hand, was in fact to be deemed to have actually caused the injury. Although this deeming would be something of a legal fiction and so in itself a new departure for tort law, it was nowhere near so fundamental a departure as the former approach. It can at once be seen that on the latter rationalisation normal causation would follow, in that the exposer deemed to have caused the injury would naturally be liable for the damages in full (as mesothelioma , dermatitis, and many other conditions, must be seen as indivisible injuries).

It had always seemed clear to me that this latter basis was the basis of the McGhee decision. However with one or two exceptions, it has seemed otherwise to our top judges. In the Barker case four of the five judges were of the view that the basis of both cases was that liability arose because the defendant had materially increased the risk of injury, not because his actions by way of increasing the risk should be deemed to have actually caused the injury. Barker These four judges, having taken the above view, then had to decide the main point of the appeal (or at any rate the one that this article is concerned with), namely whether in a case of this sort each of the several exposers should be held liable for the relevant damages in full or only in part. The courts below had said in full. This would mean that an exposer or his insurer who had been responsible for only a small (but not a minimal) percentage of the total exposure would be liable to pay up in full where he had not caused the injury but had merely increased the risk of it arising. The main exposers, and their insurers, might well have, and in this and associated cases some actually had, disappeared. Fair? No, said the House of Lords. The four judge majority took the view that the attribution of liability according to the relative degree of contribution to the chance of the disease being contracted would smooth the roughness of the justice which a rule of joint and several liability created. The defendant was a wrongdoer and should not be allowed to escape liability altogether, but he should not be liable for more than the damage which he caused and, since this was a case in which science could deal only in probabilities, the law should accept that position and attribute liability according to probabilities. The justification for the joint and several liability rule was that if you caused harm there was no reason why your liability should be reduced because someone else also caused the same harm. But when liability was exceptionally imposed because you might have caused harm, the same considerations did not apply and fairness suggested that if more than one person might have been responsible, liability should be divided according to the probability that one or other caused the harm [my italics]. A defendant was liable for the risk of disease which he himself had created and not for the risks created by others, whether they were defendants, persons not before the court or the claimant himself . The Act (the mesothelioma bit) We know, of course, that we have an inept and superficial government, control freaks addicted to knee-jerk initiatives, influenced by crowd-pleasing and vote-catching tactics. Also one that has no respect for the judicial process or the judges. But to rush through an Act of Parliament within three months to reverse a careful and wellreasoned judgment of our top court, and with retrospective effect, is totally unacceptable. Talk about knee-jerk reaction (a motor impulse, of course, for which this government is renowned). Certainly judicial decisions have been reversed before now including in the field of personal injury, but that has been (a) where the points at issue have been of wide application, such as the various Limitation Acts, not where the area of applicability is extremely narrow affecting only a handful of citizens, (b) where the decisions have been, as it were, forced on the judges by longstanding or at any rate earlier law, and the judges not exceptionally have voiced concern at their conclusions, and (c) retrospectivity has not been the order of the day! Here the top judges have on a novel point said what in their view the law should be, and given reasons for it, and then the government has just brushed this aside because

they think otherwise. What does that bode for any future judicial decision? That this government will rush to reverse any judgment where they in their wisdom (joke!) take a different view? The point is not whether one agrees or disagrees with the courts decision. There are arguments both ways. The point is that it is morally and socially reprehensible, if not actually constitutionally unacceptable, for the government to create in such a narrow field an Act of Parliament which, in this respect, is doing no more than saying we disagree with this particular judicial decision, our hearts are bleeding for the poor working man and his family, we think that any exposer should be liable in full, and so we are getting Parliament to nullify the courts decision, and, what is more, we think that our view should apply to all claims, past, present and future. Unbelievable! Maybe they are also saying we need the unions votes, the general public has seen through us, aware of all our lies and failures, so s-d the judges, weve got to keep some votes. Oh, I suppose I should add that there is, as you know, provision in the Act for the Treasury, if it thinks fit, to create some sort of scheme, perhaps based on the Financial Services Compensation Scheme) whereby an exposer made to pay the full amount of the relevant damages may apply for (and get? thatll be the day) some re-imbursement out of public funds to defray his liability. SECOND The Act (the general negligence bit) The other bit of nonsense in the Act was in the original draft in early March 2006. Note, incidentally, that the mesothelioma bit was hastily drafted once the HL decision was known and was added to the draft no earlier than 17 July. A week later the Act was on the statute books! The general negligence bit reads: STANDARD OF CARE 1 Deterrent effect of potential liability A court considering a claim in negligence or breach of statutory duty may, in determining whether the defendant should have taken particular steps to meet a standard of care (whether by taking precautions against a risk or otherwise), have regard to whether a requirement to take those steps might (a) prevent a desirable activity from being undertaken at all, to a particular extent or in a particular way, or (b) discourage persons from undertaking functions in connection with a desirable activity. This is extraordinary. It is a statement of long established law, well known to any student of law, or indeed to anyone who knows anything at all about the law of negligence. They had need only to look at chapter 16 of my book (pp 200-1) and they would have realized this. I make no apology for reproducing my immortal words here (with emphases added): The care that is required of a person undertaking an activity, that is the standard of reasonable care that he has to display, depends on a number of factors: the nature and value of the

activity he is undertaking; the risk that he is creating; the seriousness of the likely consequences if he does not exercise due care or if something untoward happens; the expense and difficulty of taking precautions; and the overall view of the court as to the suitability of recovery in the particular case (this last is a mixture of the courts views on policy and justice).
It is the duty [of an employer] in considering whether some precaution should be taken against a foreseeable risk, to weigh, on the one hand the magnitude of the risk, the likelihood of an accident happening [this seems tautological!], and the possible seriousness of the consequences if an accident does happen, and, on the other hand, the difficulty and expense and any other disadvantage of taking the precaution (per Lord Reid in Morris v West Hartlepool Steam Navigation Co [1956] AC 552, HL). It is well settled that in measuring due care you must balance the risk against the measures necessary to eliminate the risk. To that proposition there ought to be added this: you must balance the risk against the end to be achieved (per Denning LJ in Watt v Hertfordshire County Council [1954] 1 WLR 835 at 838, CA).

The standard of care, in its basic form, is that care which a reasonable person would take in the circumstances. That, of course, does not get one very far. It is the court that will decide what a reasonable person would have done. In Bolton v Stone [1951] AC 850, HL, cricketers who could foresee the possibility of a ball hitting a passer-by outside the ground were nevertheless under no duty of care to take precautions, as the risk was not great enough. If they had been playing baseball, no doubt the decision would have been different. Cricket is too valuable an activity in the eyes of the English judges to be hampered by pettifogging considerations about the possibility of hitting a child on the head with a ball as it walks down the road outside.
A relevant circumstance to be taken into account may be the importance of the end to be served by behaving in this way or that. As has often been pointed out, if all the trains in this country were restricted to a speed of five miles an hour, there would be fewer accidents, but our national life would be intolerably slowed down. The purpose to be served, if sufficiently important, justifies the assumption of abnormal risk (per Asquith LJ in Daborn v Bath Tramways Motor Co Ltd [1946] 2 All ER 333 at 336, HL).

I am sure the parliamentary draftsman knew the otiose, redundant, unnecessary, and uncalled for nature of the clause he was being asked to draft, but he had his orders. The real question is what ass in the government thought there was a point in reminding the judges that they were entitled to do (note that they are not being told they must have regard, only that they may do so!) what they had been doing anyway for very many years. In my view the answer is that the government have, if only dimly and in part, now realized where their pathological desire for control by way of incessant legislating has led us. It has produced a society where every activity is fenced about with regulations (the latest incidentally is the ongoing attempt to regulate all musical activities), where no activity involving the slightest possibility of risk can be undertaken, either because the necessary insurance is unavailable or exorbitant or because people are afraid of being sued at the drop of a hat, and where our children no longer have a childhood, but only a sterile nursery empty of games, devoid of any sort of the excitement that is a quintessential part of childhood. We know children have to wear full protective armour if they are even to be allowed to play conkers (probably they are not). Very recently a school banned all forms of game that might involve any sort of bodily touch. And (with my thanks to Ross Clark,

author of the mind-boggling How to label a goat) we learn that the following things have been reported to be banned in at least one school: making daisy chains (risk of picking up germs); playing hopscotch (risk of injury); making anything out of egg boxes (fear of salmonella); putting hands up (makes pupils who don't have the answers feel victimised); and throwing paper aeroplanes (might cause eye injuries). Yes, a nanny state indeed , but a good nanny does not put the children in a straitjacket, fearful to admit any risk in their lives, depriving them of fun, excitement and experience, in case they might perhaps encounter a risk that could possibly hurt them a bit. Oh, and as you know, UNICEF have just adjudged Britains children to be the unhappiest in the western world. And if you think pathologicalis too strong to describe this governments urge to control every aspect of everyones life, just think of ID cards and road pricing. Of coure, it is not only children who are circumscribed by regulations. The endless morass of rules and sub-rules spewed out continously by this parliament is responsbile for the current climate and culture of compensation and the failure of the citizenry as a whole to think in terms of taking any responsibility for themselves for what happens in their life. You only have to follow the columns that relate the latest idiocies, such as Spirit of the Age in The Week . football match banned because sheep droppings on the pitch might cause someone to slip, childrens goalposts in a field removed by the Council because a half-blind half-drunk nocturnal wanderer might stumble over them, Torquay council deciding to remove their heritage of palm trees because the ends of the fronds might poke in to some careless persons eye, no person to sit behind goal in case he is hit by a ball, trees cut down because their fallen leaves could cause personnel slippage, and, in the new field of noise control, we are told that noise at the opera house, at concerts and at football grounds will be, in respect of some of the auditors, unlawfully noisome. The list of inanities and insanities is endless. We get to the stage where, if anything in a persons life does not turn out as he desires, he finds someone to blame for it. It has to be said, I am afraid, that the judges have played some part in this, too, far too ready to find defendants negligent. But the societal ethos that is the frame or matrix (I like that word) within which they operate has been conceived by the arch-controller and uinsuccessful legacy-seeker, A Blair and created by his minions under his direction. Utinam diffugiant quam celerrime! PS: Of course, if the government had any sort of useful and suitably respectful relationship with the judiciary, instead of regarding it as an unnecessary obstacle in the way of total governmental control, they could have had a quiet meeting with the Lord Chief over a bottle of cheap plonk and told him what was on their collective mind, instead of resorting to this clumsy misuse of the legislative process. THE END