Radio 4 today had a philosophical argument about private institutions and public bodies becoming risk averse and the reasons behind that.

Many writers often advocate that public institutions such as government departments and local authorities have become unduly sensitive to potential claims arising out of the statutory activities and as a result are becoming more risk averse.

In the tabloids this is often highlighted when a particular council shuts down an activity available to members of the public on the grounds that their Health and Safety Department have considered it to be too risky. This notion of “too risky” is often defined on the basis that members of the public refuse to accept responsibility for their actions and often blame the authorities for the cause of the incident.

Tabloids often always conclude that this is as a result of the compensation culture.

It is often lost on these advocates that the current common law does give protection to these institutions. We have what is called a “fault based” system to establish legal responsibility of a wrong doer. A person pursuing a claim (a claimant) has to show that the wrong doer owes them a duty of care and that there has been a breach of that duty before establishing legal responsibility for the loss that they may have suffered.

In the past I have highlighted the case of a flower shop at a tube station. It was subject to a claim by a person walking past who had tripped over a petal. Whilst that person had succeeded in the first instance the House of Lords in fact overturned that decision. This is an example of the onerous duty that a claimant has to overcome before establishing a party to be held legally responsible. That is why some claims farmers used to advertise “where there is blame there is a claim”.

A further example is a recent case of Terence Charles Abraham v G Ireson & Son (Properties) Ltd and Others (2009)

Here a former employee was exposed to asbestos that had led to the development of mesothelioma (lung cancer). The Court found on facts that that the exposure, albeit modest and infrequent, had in fact has caused the Claimant to contract mesothelioma. However, the Court found that the exposure was not negligent because the employer could not have been expected to know at the time of employment that the Claimant was, or might be, exposed to the risk of an asbestos related injury. Furthermore the employer had no special degree of knowledge or personal experience which would have alerted them to the potential risk.

This is an example of the requirement that the claimant must establish not only duty of care but also breach of that duty. This shows the law has in built safeguards, which provide those with common law claims against them (such as local authorities, government departments and defendants) with a means to protect themselves.

If these bodies have become risk averse it is more often due to the economic decisions they make in regard to the cost of their legal advisers rather than legal arguments available to them to contest these claims.

This is particularly surprising as most claimants will now have benefit from a legal expense cover and as such if they fail in their claim defendant will be able to recover the majority of their costs of defending such actions.

The moral of the story is that private and public institutions should continue to function and provide facilities and take certain risks as long as there is a system in place should a claim materialise to defend such actions. The responsibility of the Health and Safety Departments of these institutions is not to become so risk averse so as to ban such activities but to have system in place both on paper and in practice so that claims can be successfully defended.