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Archive for March, 2020

George Orwell on English law

George Orwell

Orwell had little interest in the law, but he commented that it was not that anyone imagined the law to be just. Everyone knew that there was one law for the rich and another for the poor. But no one accepted the implications of this, everyone took it for granted that the law, such as it is, would be respected, and felt a sense of outrage when it is not. Remarks like “They can’t run me in; I haven’t done anything wrong” or “They can’t do that; it’s against the law” are part of the atmosphere of England. Everyone believes in his heart that the law can be, ought to be, and on the whole will be, impartially administered.

In his essay  The Lion and the Unicorn (1941) on the nature of Englishness, Orwell states the following:

… the gentleness of English civilisation is mixed up with barbarities and anachronisms. Our criminal law is as out-of-date as the muskets in the Tower. Over against the Nazi Storm Trooper you have got to set that typically English figure, the hanging judge, some gouty old bully with his mind rooted in the nineteenth century, handing out savage sentences. In England people are still hanged by the neck and flogged with the cat o’nine tails. Both of these punishments are obscene as well as cruel, but there has never been any genuinely popular outcry against them. People accept them (and Dartmoor, and Borstal) almost as they accept the weather. They are part of ‘the law’ which is assumed to be unalterable.

Orwell also refers to the English respect for constitutionalism and legality, the belief in ‘the law’ as something above the State and above the individual, something which is cruel and stupid but at any rate incorruptible. He also refers to

…the hanging judge, that evil old man in scarlet robe and horse-hair wig, whom nothing short of dynamite will ever teach what century he is living in, but who will at any rate interpret the law according to the books and will in no circumstances take a money bribe, is one of the symbolic figures of England. He is a symbol of the strange mixture of reality and illusion, democracy and privilege, humbug and decency, the subtle network of compromises, by which the nation keeps itself in familiar shape.


Class justice and the Royal Mint

R v Copeland (Appellant)

Class justice

Class justice means, essentially, that the principles of justice operate inequitably in favour of one class of people in relation to other classes. A basic definition of “class” is a division of society according to status, or a number of individuals possessing common attributes and grouped together under a general or class name.

Class justice functions when justice is done in favour of one class against another. In England in the early twenty-first century, this means that justice can often be seen to operate in favour of the rich and powerful against the poor and the weak.

Class justice is exemplified by the prosecution of petty offenders against property while major criminals can appear to be immune.

This is not purely a theoretical concept. It has serious implications for people in their everyday lives.

Crown Immunity

The case of John Wynne and the Royal Mint

The case of John Wynne, employed by the Royal Mint at Llantrisant, South Wales, has highlighted the legal rules and procedures surrounding Crown immunity as a clear example of class justice. The facts, so far as reported in the national press, were that in 2001 Mr Wynne (W), suffered fatal crushing injuries when a six-tonne furnace fell from a crane. W, aged 50, had worked in the metal rolling department of the Mint for 21 years.

The Health and Safety Executive (HSE) found itself unable to prosecute the Mint for breaches of health and safety legislation. Instead, it brought Crown Censure proceedings. At the hearing of these proceedings it was stated that the Mint had failed to follow safety procedures. The hearing was not open to the public. A report of the hearing was sent to the government, the Royal Mint and the HSE. W’s widow was not entitled to a copy of the report. 

W’s widow is reported to have commented that she was shown pictures at the hearing which showed the furnace hanging from a crane, but not sitting on the hook properly. The furnace was balancing on the top and it fell. It had fallen once before, and no-one was hurt. The Mint’s management had not carried out safety checks. If they had done so, they would have realised that it was faulty and the accident could never have happened.

An HSE inspector is reported to have made the following points to the hearing:

  • W’s death was an accident waiting to happen.
  • There was sufficient evidence to bring a criminal prosecution against the Mint.
  • Although Crown property, including the Mint, has to comply with health and safety regulations, it cannot be prosecuted because the Crown cannot prosecute itself.

 

The shadowy issue of Crown immunity arises in the context of both criminal and civil proceedings. Crown immunity is an ancient, obscure and complex area of law with significant practical implications. The concept is inextricably bound up with the development of the unwritten British Constitution and the relationship between the monarch, central government, legislation and the enforcement of criminal law.


Lessons from history: the Paris Commune 1871

Paris Commune

For ten weeks in 1871, workers, artisans, students and veterans of revolutions took control of the second largest city in Europe. It was said that for the first time since 1848 the streets of Paris were safe without any police of any kind.

 The Commune’s law-making activities included the following:

  • The abolition of military conscription: the permanent army was replaced with the National Guard which was a democratic body of citizen soldiers.
  • A moratorium on rents.
  • The requisition of abandoned apartments and their distribution to the homeless.
  • The prohibition of the sale of articles deposited at pawnshops.
  • Teachers’ salaries were raised: there was no distinction between the pay of male and female teachers.
  • Equal pay for equal work.
  • The transfer of requisitioned property to worker co-operatives.
  • The separation of church and state.
  • The suppression of public funding for religion.
  • Nationalisation of church lands.

The Commune was destroyed by force of arms. Many communards were executed without trial in a frenzy of killing and thousands of others were transported to New Caledonia. This is an extreme example of a historical truth – that when the state is sufficiently threatened, it uses violence to deal with the threat. In extreme conditions, the criminal law is essentially about violence, no matter how it attempts to deny this and to dress itself up as machinery for suppressing violence. The state, in crisis, asserts its monopoly of extreme violence.


Comparative health and safety in a war context

Comparative health and safety in a war context

Reports of health and safety prosecutions cover, with depressing regularity, incidents involving deaths and injuries caused by crushing. For example, an eighteen-year old worker, crushed by an unguarded industrial machine, lies dying in an English hospital. In Iraq, an eighteen-year old worker, crushed by British and American military operations, also lies dying in hospital. Physically and medically, there is no difference between the two. Both are innocent young human beings whose lives have been cut short by others.

Those responsible for the death of the first young man will almost certainly be prosecuted for health and safety offences and perhaps for manslaughter. His dependants are likely to receive financial compensation for his death. Those responsible for the second will not be held accountable in civil or criminal courts.

What is the difference? Physically, mentally and morally, none. In terms of law, it would probably be argued that the second is an unfortunate victim of an act of war. But we were under the general impression that war is illegal under international law. Not this War, those responsible would respond. But the great majority of international lawyers take the view that the Iraq War was illegal. The legal justification argument carries no weight.

Further arguments, involving political and military expediency, are also invalid. There is no justification for the second death. No justification, whether moral, ethical, legal, political or military. The fact that there is no justification debases legality and warps justice so that it becomes unrecognisable. English law has severed any connection with morality until it condemns the Iraq War and brings the war criminals to trial.         


Noise at work: employers’ liability

Noise at work

The question of injury caused by noise at work deserves separate treatment because it has been the subject of a distinct line of cases.

The current law on the topic is far from clear. In relation to total hearing loss, the normal principles of negligence apply. But when the problem is that of partial deafness developing over a long period of time, the following legal questions arise.

  1. Ascertainment of the exact date from which legal liability runs.
  2. The scope of an employer’s duty in relation to hearing loss.
  3. Apportionment of liability in cases where there have been successive employments.
  4. Apportionment where damage was caused before employers could reasonably have been expected to take preventative measures.

A leading case is Thompson and Others v Smiths Shiprepairers (North Shields) Ltd (1984). The significance of this case is that it was a consolidated action. It involved six plaintiffs and was brought in order to establish potential liability in 20,000 other similar claims.

The essential point decided by the Thompson case was that:

…’Employers are liable in common law negligence if they fail to take reasonable steps to protect employees from known sources of danger. Since 1963 all employers are presumed to have known of the danger of injury to employees’ hearing as a result of exposure to excessive noise.

  1. Physical injury to hearing capability.
  2. Loss of amenity caused by reduced hearing effectiveness.
  3. Social handicap resulting from hearing loss.’

The court in Thompson went on to make the following rulings:

  • Where hearing loss has occurred progressively through successive jobs, liability is to be apportioned between successive employers.
  • Compensation must also be apportioned to allow for pre-1963 injury (where no liability is imposed) and post-1963.
  • In most cases, hearing loss is worst during the first six to thirteen years of exposure.
  • Hearing loss is best gauged by applying the National Physical Laboratory tables.

The facts of the Thompson case were that six shipyard workers had been exposed to noise at work from chipping, scaling, riveting and caulking tools. None of them had worn ear protection until 1973, when employers made earmuffs generally available. Their hearing loss was assessed as ranging from 10-65%.

The decision of the High Court on the facts may be analysed thus:

  1. Every employer has a common law duty to take reasonable steps to protect employees from known, or reasonably foreseeable, dangers.
  2. In relation to noise, the connection with hearing loss was largely anecdotal.
  3. In 1963 the Ministry of Labour published a booklet entitled Noise and the Worker. From a legal point of view, the effect of this publication was to put employers on notice as to the dangers of workplace noise.
  4. On the facts of the present case, most of the damage to the plaintiffs’ hearing had been done by 1963.
  5. Thus, damages must be assessed on a proportionate basis.
  6. Awards ranging from £250 to £1,350 were made.

Occupational Deafness: Levels of Compensation

Fry and Others v Ford Motor Company Ltd (1990)

F and 3 other Ford workers had been exposed to noise at work averaging 90 decibels over periods ranging from 15-30 years. Ford admitted liability: the issue was the amount of compensation. The High Court made the following points:

  1. In cases concerning loss of hearing there is no assessment of pain and suffering. But the following areas of discomfort should be quantified:
  2. Disruption of social and family life.
  3. Intolerance from others irritated by victims who cannot hear properly.
  4. Such frustration and irritation varies between individuals and must be separately assessed.
  5. The age of the plaintiff at which the injury occurred is of crucial importance, because hearing loss is related to age in any event, regardless of noise at the workplace.

The following factors are relevant in assessing the level of awards:

  • Age of plaintiff
  • Length of time suffered from hearing loss
  • Tinnitus
  • Effect of hearing loss on work, family and social life
  • Whether the plaintiff would need to buy hearing aids.

Duty of Employer to Keep Ahead of Contemporary Knowledge

Baxter v Harland and Wolff (1990)

B, a fitter, was employed by H&W for 25 years. He retired in 1962. For the next twenty years he suffered deafness resulting from the high levels of noise to which he had been exposed during his working life. In 1984 he brought proceedings against his former employers.

The Court of Appeal held that the employers were liable. Their failure to alleviate noise suffered by B amounted to a breach of their duty of care.

The employers had been aware that workers’ hearing was suffering because of noise. They were required to keep up with the developments in awareness of damage caused by noise. 1963 was not in itself a cut-off date: there had been sufficient scientific, legal and medical information available before that date. The employers were liable for damage suffered before 1963.


Negligence at work: liability for injury and disease

NEGLIGENCE AT WORK – LIABILITY FOR INJURY AND DISEASE

CHAPTER 2: NEGLIGENCE

Duty of Care

Manufacturer

Davie v New Merton Board Mills (1958)

A drift (a tapered steel bar) was made by an old-established toolmaking firm. The drift was defective because it had been made from excessively hard steel. If the manufacturers had used reasonable care, they would have discovered the fault.

The tool was sold by its makers to a supplier which sold it on to Mr Davie’s employers. The fault in the tool could not have been discovered by the employers. When Mr Davie used the drift at work, a piece of steel flew off it, causing him injuries. He claimed compensation from his employers, alleging negligence.

The Court of Appeal ruled that there was no liability. The employers had taken all reasonable care to supply a safe tool.

Note:

The Employer’s Liability (Defective Equipment) Act 1969 reversed the effect of this decision. The 1969 Act provided that:

Where an employee is injured in the course of his employment, as a result of a defect in equipment provided by the employer and the defect is due to the fault of a third party, then the injury is deemed, in law, to be the fault of the employer.

Public Disorder: Senior Police Officer

Hughes v National Union of Mineworkers and Others (1991)

H, a policeman, was injured in the execution of his duty while assisting North Yorkshire Police during the 1984-85 miners’ strikes.

He claimed compensation from that police forces’ chief constable, arguing that the chief constable had been negligent in deploying his forces and that H had been injured as a result. The High Court gave judgement as follows:

  1. Senior police officers are not, as a matter of public policy, generally liable to individual officers for injuries suffered in serious public disorders.
  2. If a duty were owed in such circumstances, this would be detrimental to public order control because the fear of possible negligence actions might adversely affect critical decisions.

Diagnosis of Employee’s Mental Illness: Failure to Ensure Treatment

Ali v Furness Withy (Shipping) Ltd (1988)

A, a seaman on board a gas carrier owned by the defendants, exhibited symptoms of serious mental disorder while at sea. He claimed that four people were plotting to kill him. He refused to be lodged in the ship’s hospital. He was then physically restrained and locked in his cabin.

A, believing that he was suffering from delusions, jumped out of the porthole of his cabin and drowned. His widow claimed damages from the defendants on the basis that the master of the ship had been negligent, and in particular:

  • Should have diagnosed earlier that A was mentally ill;
  • Should have taken steps to land A for hospital treatment on shore.

The High Court reached the following conclusions:

  1. The master had not been negligent in failing to make an earlier diagnosis.
  2. When he reached his conclusion, he should have taken immediate steps to take A off the ship.
  3. A had not been properly restrained and observed.
  4. The widow was entitled to damages.

Mental Health of Employee: Rescuer Witnessing Harrowing Scenes

McFarlane v E.E. Caledonia Ltd (1993)

Mr McFarlane worked on rescue operations during the fire and explosion on the oil rig Piper Alpha. As a result of the harrowing scenes which he witnessed, he became mentally ill. He claimed damages from the owners of the rig.

The High Court held that he was owed a duty of care. The owners appealed.

The Court of Appeal made the following points:

  1. The test was whether a reasonable owner would have, or should have, foreseen that a person of normal fortitude in the position of the plaintiff would have reasonably been in fear of his life and safety.
  2. On the evidence, this was not the case.
  3. The duty of employers in such cases did not extend to mere witnesses of horrific events.
  4. There had not been sufficient proximity between the plaintiff and the victims of the event.

Mental Health: Work-Related Stress

Petch v Commissioners of Customs and Excise (1993)

Mr Petch was employed as a senior civil servant. He suffered a mental breakdown and claimed damages from his employers. His argument was that his conditions of work had caused the breakdown, and in particular that he had suffered stress because of overwork. At first instance the employers were found not liable. Mr Petch appealed to the Court of Appeal.

In dismissing the appeal, the Court held:

  1. Mr Petch’s breakdown had been caused by his working conditions.
  2. However, his employers had tried to persuade him to take sick leave and had transferred him to less stressful work.
  3. In these circumstances, the employers could not be said to have been negligent.
  4. The duty of care of an employer clearly extended to the mental as well as physical health of its employers.
  5. On the facts of the present case there had been no breach of the duty of care.

Overwork; Excessive Overtime; Threat to Health; Hospital Doctor

Johnstone v Bloomsbury Health Authority (1990)

Dr Johnstone worked as a senior house officer at University College Hospital. He was required, under the terms of his employment, to work a basic 40-hour week. He was also required to be available to work overtime for up to 48 hours on average. The practical effect of this was that in some weeks Dr Johnstone might have to work more than a total of 88 hours.

Dr Johnstone argued that he could not be lawfully required to work for so many hours as might foreseeably injure his health.

The Court of Appeal ruled in Dr Johnstone’s favour.

In any sphere of employment other than that of junior hospital doctors, a requirement that 88 hours could be worked in a week would be treated as intolerable and oppressive. There was no reason why the health authority should not comply with its general duty to take reasonable care not to injure the health of employees.

Safe System of Work; Overwhelming Pressure of Work; Nervous Breakdown

Walter v Northumberland County Council (1994)

Mr Walker was an area social services officer employed by the defendants. He had been responsible for the management of four teams of social service field workers, whose responsibilities included child care.

His workload became overwhelming, and he requested extra staff and assistance. Neither was supplied. In 1986 Mr Walker suffered a nervous breakdown as the result of pressure of work. He returned to work in 1987 and again requested assistance. The employers failed to provide proper assistance and Mr Walker suffered a second breakdown. In 1988 he was dismissed from his job on the grounds of ill-health. He claimed damages in common law negligence.

In the High Court, Mr Justice Colman ruled that:

  1. The case law on providing safe systems of work referred almost exclusively to physical injury, but there was no reason why psychiatric harm should be excluded for the scope of employers’ duty to take care.
  2. The question in the present case was whether the employer ought to have foreseen that Mr Walker had been exposed to a risk of mental illness materially higher than that which would ordinarily affect a social services middle manager in his position with a really heavy workload.
  3. Mr Walker had a normal personality, but he had been driven to despair by the employers’ failure to provide him with sufficient resources.
  4. In respect of the first breakdown, it had not been foreseeable that Mr Walker was exposed to a material risk of mental illness.
  5. With regard to the second breakdown, however, the employers should have foreseen that if Mr Walker were exposed to the same pressures, then there was a risk that he would become so ill that his career would terminate.
  6. The employers had been in breach of their common law duty of care and were liable to compensate Mr Walker.