Everyone complains that ‘Health and Safety’ has got out of hand. Uncertainty about the law is the problem, and it has led to increasingly burdensome safety practices and litigation.
The trouble is that the bottom end of the ‘duty of care’ risks scale, that is, where risks become so small that they can be ignored, is not defined by law. To cure the problem, Parliament should define the lower limit of personal accountability for Health and Safety questions and then apply the ‘de minimis’ principle – ‘the law ignores trifling matters’.
‘Health and Safety’ promotes two fears, first, unreasonable fears of trivial hazards, and second, reasonable fears of speculative litigation. By quantifying ‘acceptable risk’, Parliament can reduce safety paranoia, unnecessary precautions and unreasonable litigation.
Insurance companies and engineers use maths to quantify risks. They can measure the small everyday risks that we accept as normal and don’t worry about, such as being run over while crossing the road, or being poisoned by home-made jam made in a non-inspected kitchen, or by fish-and-chips wrapped in newsprint.
By means of an illustration, take a local authority which has 100 primary schools. From 1970 until 1990 (when they introduced the practice of children being personally collected from school by a specified relative or friend) there was not a single case of a child being kidnapped on the way home from any of their schools. The insurance company calculated – as you can – that the probability of a child being abducted from one of this authority’s schools was less than once in 2,000 years, that is, negligible. So no additional safety measures were necessary, and the insurance premium would be trivial. But the insurance company insisted on burdensome safety precautions and charged a substantial premium, not to protect the children, but as a defence against litigation.
So here are my suggestions for a sensible way forward.
Suggestion 1. Parliament should define the lower level of risk covered by the ‘duty of care’ in terms of the everyday judgment of a reasonable person; for example, as “once in 100 years”, or equivalent to the risk of “crossing the road”; for risky sports the comparison could be with “riding a motor cycle” or “playing rugby football”. What about:
“No-one shall be required to take special precautionary measures against accidents, and only be liable for compensation, if the likelihood of such accident for which they might be responsible substantially exceeds that of ‘crossing the road’ or ‘once in a hundred years’, provided that there is no evidence of any unusual risk.”
It may be argued that these tests are imprecise and vague. True, but they are within everyone’s experience. We all judge when crossing a road is ‘safe’ according to the conditions. We don’t worry about something that might happen to us once in a hundred years. Actuaries and engineers are familiar with calculating these small risks, and can advise whether a particular situation requires precautions.
Suggestion 2. The government should reinstate in regard to Health and Safety matters, the traditional English legal maxim: “De minimis non curat lex” – the law ignores trivial matters:
“No-one shall be held liable for contravening Health and Safety regulations that are of negligible value, or are contrary to common-sense.”
Thus, sellers of common salt need not provide a health risk assessment on every packet; an office will not become illegal because a desk is a couple of inches too near the door.
Suggestion 3. “No-one shall be held in breach of regulations as a result of risking their life or safety to assist in an emergency”. This needs no explanation.
Suggestion 4. Parliament should where possible make ‘Health and Safety’ a matter of individual rather than government responsibility, by introducing the principle ‘use your common sense’. Obviously public health, building regulations, etc should remain a matter for government:
“Members of the public who buy goods or services, or attend a place or an activity, or permit their children to, are responsible to check that the safety precautions are to their satisfaction.”
This would mean, for example, that a teacher who organises an out-of-doors game or a holiday week for teenagers would not be obliged to write out a risk assessment. If the children’s parents do not trust the school, they should not let their children attend the activity.
Suggestion 5. Occupiers of premises should not be required to display notices warning of hazards of which an ordinary sensible person would be aware. Examples of such unnecessary notices would include: ‘slippery floor’ (in a public toilet); ‘this tap is hot’ (in community hall kitchen); ‘deep water’ (by a lake); ‘path slippery in wet weather’ (in National Trust garden) and so on.
Suggestion 6. Finally, government should systematically check which safety regulations have any useful effect. Safety officers could be retrained to make quantitative assessments of the value of safety regulations, with a view to cancelling those that serve no useful purpose. For example: the 2002 BBC Reith lecturer pointed out that since the 1970s when ‘childproof lids’ were made compulsory for medicines in the US, the number of child deaths from accidental ingestion of medicines has actually gone up a lot. Does this regulation actually save lives?
Those changes would not only produce substantial regulatory savings, and but also also free local authorities, schools, and businesses from being sued over trivial accidents.