2 August 2016 | Comment | Article by Nikolai Llewellyn
Many personal injury clients would be forgiven for being unaware of the sheer amount of EU-based regulations and directives that UK lawyers utilise when assisting clients to pursue personal injury claims. In this article I consider how a 'Brexit' could affect a UK citizen’s ability to make a personal injury claim.
Why and how EU law applies to UK personal injury claims
The EU makes what are known as directives, which are pieces of European law that require EU Member States (which the UK will soon cease to be) to turn them into the law within their respective countries and to set a deadline for such laws to come into force. Each directive sets out minimum requirements and fundamental principles.
In the UK, until now EU directives have been turned into UK law by what are known as Statutory Instruments. Statutory Instruments are a form of short cut that allows the EU law to become our national law without the UK government having to go to the trouble of creating a new piece of law that would have to pass through parliament.
The best example of this in personal injury law is the European Framework Directive on Health and Safety at Work which the UK adopted in 1989. This particular directive was massively important in changing the landscape of health and safety law in the UK and resulted in a substantial improvement to the health and safety of UK citizens in the workplace. It came into force in the UK under the Health and Safety at Work Act 1974.
The basic command that the EU issues to its member states when creating new directives regarding personal injury is that the law in each member state must reflect the minimum standards set out in the European law, that each member state is entitled to put in place additional measures to make the requirements even more strict but they can never make the requirements less strict. This basically means that the minimum standard is set by the EU, if member states want to put in place additional measures to offer further protection to their own citizens then they can but they cannot ever allow the laws in their countries offer less protection to the health and safety of their citizens than that set out in EU law.
In summary, the EU has granted UK citizens a lot of protection in terms of health and safety, which has supplemented the existing law that the UK had in the first place had already put in place.
How things might change because of Brexit
At the present time nothing will change unless our government passes new law to revoke the old European laws that have formed part of our own law. Just because we won’t be a part of the EU doesn’t mean that the old European laws will cease to be relevant.
It therefore very much depends upon the appetite of our government.
There are signs however that things may change. Certain newspapers have attacked what they consider is a "claims culture" in the UK and argue that such a culture is a drain on the insurance industry and on the UK economy in general. Many lobbyists are putting pressure on the UK government to take action to address the so-called “claims culture” by making it more difficult for personal injury claimants to obtain compensation.
It could be argued that this process has already started to happen. As of 1 October 2013 the direct enforceability of the provisions of many regulations relating to health and safety no longer applies following the introduction of section 69 of the Enterprise Act 2013. Prior to 1 October 2013, if an employee suffered an accident at work that resulted in injury, which was caused by their employer’s breach of a particular health and safety regulation, the employee would be guaranteed compensation (provided the employee is able to prove a causal link between their accident and the injury sustained). However, this is no longer the case. Proving that an employer has breached a particular regulation does not now automatically result in the employer being obliged to pay out compensation. A breach of a regulation is more or less now just a factor that a judge will take on board in considering whether an employer has been negligent.
It is a case of 'watch this space'. However, there will be nothing stopping the UK government from revoking much of the European health and safety law that has become a part of our law.