Claiming a better future

'No win - no fee!' 'Have you had an accident at work? Our specialist injury lawyers can get you the compensation you deserve.' These are examples of the kind of advertising on foreign television channels.

Not here though. Here, it is illegal for lawyers to advertise their services in this way, and even if they could, there is no provision in Maltese law to compensate accident victims for 'pain and suffering'.

What effects if any, does all this have on standards of health and safety, and more particularly on the general perceptions of responsibility and accountability in society?

This is perhaps a philosophical discussion based, in a sense, on the concept of 'cause and effect'. In terms of accidents, this means that every accident has an identifiable cause or causes.

The question is, should an individual, who is responsible for the cause of an accident that causes harm, be held to account? Let us consider an example: a worker is drilling a hole in a piece of metal using a pillar drill. The law here and in all EU countries, says that the dangerous parts of the machine should be guarded so that workers cannot come into contact with them.

All available guidance and industry good practice says the same. The worker in question is injured when the sleeve of his overall gets caught in the drill bit which has not been fitted with a guard, and his hand is dragged in and badly lacerated.

Civil law gives the worker the right to sue his employer for compensation (usually financial) for his injuries on the basis that the employer should have ensured only equipment is safe for use is provided.

The problem people in this situation in Malta often face however is that the process of obtaining compensation is very long and expensive, and they can by no means be certain of the outcome. This is partly because of the nature and structure of the legal system, partly because insurance companies will often automatically defend claims regardless of their validity, and partly because the culture of compensation for injuries is not as deeply embedded here as it is in some other countries.

Even where compensation is deemed appropriate, how far will it extend? The courts will usually restrict themselves to making awards that compensate 'loss'. This means for example, loss of earnings, loss or damage to possessions, or permanent loss of physical ability. Does such an award truly compensate for the whole of what has happened though?

Take the case of someone injured in an accident caused by someone else's act or omission, where they take six months to fully recover. During this period, they have to undergo painful medical treatment, have to give up some of the activities they normally enjoy, cannot sleep, and their partner suffers as a result.

At the end of the six months, they have more or less recovered and do not suffer any permanent disability. Would they be entitled to an award that covered these secondary effects of the accident? The difficulties and disruption caused to their everyday life, and the pain and suffering endured could be said to be the greater part of the disruption caused by the accident, yet there is little chance these things would be fully acknowledged in an award.

Of course, in a work situation, employees have a part to play too, and they must make sure they do not do things (or fail to do them) that compromise their health and safety. The courts can apply this principle by the use of a doctrine called, 'contributory negligence'.

Under this doctrine, a certain amount of blame for an accident can be apportioned to the victim, in which case their award would be reduced accordingly. For example, in a case where the gross award is €10,000 and where the employee is found to be 50 per cent to blame, they would have the award reduced to €5,000.

This approach encourages employees to take more care, and goes some way towards countering the view that employers are discriminated against in health and safety cases.

Another factor in the efficacy of any compensation system is the ability or willingness of the respondent (in occupational terms, the employer) to pay. In many jurisdictions employers are required by law to take out 'employers' liability insurance'.

This insurance covers the costs of compensation claims made against an employer, and provides some measure of reassurance that accident victims will receive the compensation they are awarded regardless of the employer's finances. There is no such legal requirement here however. So employees who are injured at work do not have this form of protection.

Where employers are uninsured, an injured worker has to sue them or their company directly to claim compensation and simply hope they will pay. The process can be quite a daunting challenge for any individual with no guarantee they will receive any money, even if their claim is successful.

These are just a few of the issues associated with accident compensation, but they also perhaps affect wider issues of health and safety in our society. The fact is that in most places one of the most important and effective drivers for higher standards is financial. Those with a financial interest in driving health and safety forward tend to do so.

Thus, for example, large companies that recognise the benefits of greater efficiency, the avoidance of losses and damage and improved staff motivation that systematic health and safety management can bring, are keen to develop such systems.

Similarly, in accident terms, it is those who are most likely to suffer significant financial losses because of accidents at work who are most likely to act, particularly if there is a real chance that compensation will be designed to compensate for all of the adverse effects of an accident involving an employee-victim. In such cases, it is more likely that employers and/or their insurers will strive harder to ensure accidents do not happen.

Few people want to see an 'ambulance-chasing' culture develop here, and it is fair to say that in some countries things may have gone a little too far. This may have been because the courts in these places lost sight of the original guiding principles upon which legal concepts, such as 'responsibility', were founded, most notably that of 'reasonableness'.

People (employers in this case) should only be held liable for issues they should 'reasonably' have guarded against. In practice, this is when they fail to use common sense and when they disregard standards that are normal or accepted in their occupations, some of which may also be legally regulated.

Losing sight of these principles can lead to claims being made for coffee that is 'too hot', or knives that are 'too sharp'. No-one wants to see this kind of situation develop here, but are we perhaps a little too far towards the other end of the compensation spectrum?

If standards of health and safety are to improve, and if there is a belief that those who cause accidents should properly compensate their victims, we have to use incentives that are most likely to succeed in delivering the ultimate prize - fewer accidents and accident victims.

There is little doubt that the incentive most likely to succeed is financial. It is possible to create a system wherein people, and employers in particular, know that where it is reasonable to hold them liable for an accident they will be held liable - and in a timely manner.

It is also possible to ensure that awards made to accident victims provide comprehensive compensation which does justice to them. In such circumstances, employers are more likely to seek out insurance to cover their liabilities, and insurance companies will demand higher standards of health and safety from them before they will provide such cover.

The addition of a compulsory element to insurance would also be a great help, bringing all employees under the umbrella of financial protection and incentivising employers and the rest of us to put more effort into health and safety at work.

Mr Hudson is director of training and consultancy, Institute of Health and Safety.