In case of injury

If you have an accident at work, it is assumed that your employer was not responsible. But many solicitors believe that reversing the burden of proof could speed up justice and reduce costs, reports Grania Langdon- Down
Reversing the burden of proof in personal injury cases would achieve Lord Woolf's aim of quicker, cheaper justice at a stroke, according to Doug Christie, who is a partner in Thompsons, a trade union firm of solicitors and the largest personal injury practice in the country.

"In personal injury cases, the defendant has access to all the information but the onus is on the plaintiff to prove negligence," he said. "In employment cases, the presumption should be that accidents or diseases at work should not happen ... If they do, the employer should be expected to prove they had not been negligent or in breach of health and safety regulations. It should be a public policy. It is perverse that the employer is innocent until proven guilty by the injured employee."

However, reversing the burden of proof could also apply to other personal injury cases, such as a member of public slipping in a shop and breaking their leg, he said.

"The burden of proof is on that person to prove the shop had been negligent, but he or she has been carted off to hospital. The shop will have all the evidence about what was spilt and how long it had been there."

Mr Christie said that, although the large majority of personal injury claims were successful, defendants often made plaintiffs fight all the way.

"What Lord Woolf is saying in his Access to Justice report is that the costs of civil procedure are excessive. But it is often the procedural wrangles you have to go through to get the information you need that run up costs and cause delay. It would mean a lot more cases, but that would be a good thing because many legitimate claims are not being brought because people are fearful of taking on some large institution." He said the change would need legislation, which would have to be tightly drafted to avoid abuse.

However, there was already a deterrent against abuse in the system of awarding costs. "When you bring legal proceedings, the loser pays the winner's costs. So if it were a frivolous claim, the person would have to pick up the bill." He said they would be discussing their ideas with their trade union and labour movement contact, and were hopeful of a "sympathetic" hearing.

Caroline Harmer, president or the Association of Personal Injury Lawyers, said they had recommended to Lord Woolf that reversing the burden of proof in some road accident cases could cut the cost of litigation.

"In Spain and France, for example, if a passenger is injured, it is assumed the car driver has been negligent, unless they can prove the passenger was at fault. In this country, the passenger, who cannot be to blame, has to bear the cost of providing the case. Surely the driver, who is insured, should bear this burden? Reversing the burden of proof should not increase costs of insurance, given that more than 90 per cent of cases settle anyway. But at the moment many are fought at great cost and length."

She accepted that other road accident cases, where one driver was suing another, for example, were not so clear cut. However, she believed the principle could be extended to other personal injury claims, such as accidents at work, "bearing in mind that the employer usually holds the evidence".

However, Terry Renouf, partner in Berrymans Lace Mawer, one of the biggest practices acting for insurers, was dismissive.

"It is just a further attempt to get to the stage of no-fault compensation. It would lead to a ballooning of employer liability claims and premiums would shoot up.

"It is in no employer's interests to try to cover up what is going on, because they do not want further accident. Employers are obliged to investigate accidents once notified, but the best witness remains the victim. At the moment, it is fairly even handed ... to suggest the burden of proof should be reversed would completely alter the playing field.

"I suspect the temptation, if the Government is looking for some popular steps to take, could be to increase personal injury compensation at the apparent cost of insurers - even though it ultimately comes from those paying the premiums."

Mr Renouf also took issue with Mr Christie's call for reinstating confidentiality for employee's witness statements in personal injury cases.

Changes in the High Court and County Court Rules in 1992 obliged parties to disclose witness statements at an early stage. Previously, witnesses had to give their evidence only in the very small percentage of cases that went to trial.

Mr Christie argued: "The change was part of the 'cards on the table' approach which theoretically meant that if both sides saw all the evidence at an earlier stage, they would be able to make a more informed decision about whether to settle or to fight.

"But there is no evidence that the settlement rate has increased because of the rule change, while costs have gone up preparing the statements for disclosure.

"And we have had a number of cases where we have been unable to get the evidence we need because colleagues of the victim have been unwilling to co-operate when we tell them their statement will be given to their employer whether or not the case gets to court."

Mr Christie said that earlier this year they were investigating a claim by a home care assistant that she had badly injured her back lifting an elderly person. She claimed that her county council employers had been negligent in failing to provide adequate training and equipment.

"When we approached colleagues to ask about issues such as training, they said they had been told there was apossibility of disciplinary proceedings if they co-operated with us," he said. "We threatened the employers with contempt proceedings and they subsequently confirmed that employees were entitled to provide statements without disciplinary action would be taken.

"We may find that there is not a case but, in general, there is a perception of victimisation among employees, and their statements should be exempt from disclosure requirements."

But Mr Renouf dismissed his suggestion as "nonsense". "I really cannot see how it can serve the interests of justice for one side to be able to conceal its hand and not disclose its witness statements, when the other side would still be required to do so."

If there were any victimisation, it could be dealt with by contempt of court proceedings.

"It used to be the practice that neither side was obliged to disclose witness evidence," Mr Renouf said, "and parties would often deliberately conceal their hands, particularly plaintiffs. Defendants were left struggling to find out the case on both liability and quantum. If we return to that situation, it is just going to mean more cases being delayed.

"This suggestion flies in the face of all current thinking about disclosure"n