New laws for corporate manslaughter up legal ante for businesses

by PAUL MCINDOE

Company directors across the UK are preparing themselves for one of the biggest legislative shake ups to direct corporate accountability in a very long time. The Manslaughter and Corporate Homicide Act comes into force on 6th April 2008 and business lawyers are urging businesses to check their level of risk.

The new law follows events such as the Paddington and Southall rail crashes and the ICL/Stockline explosion which have increased public awareness in regard to the lack of accountability in large private companies.

Roughly 40,000 people have been killed in commercially related circumstances between 1966 and 2006 with 34 companies prosecuted for homicide and seven resulting in convictions. In the past year there have been over 600 fatal work related injuries, with other injuries ranging from amputation of limbs to loss of sight and electrocution.

The old common law system revolved around the “identification principle” which meant a senior individual had to be found to have acted in a negligent manner. Often, the sheer number of workers, managers, senior staff and delegated management systems meant that it was nearly impossible to trace accountability to one specific person; the new system does away with this stumbling block.

The new law creates a specific offence of “corporate manslaughter”. If the company causes a death through bad management which amounts to a gross breach of the company's ‘duty of care’ to the deceased, this could lead to a conviction. The management of the company must be a substantial contributing factor to the death.

The new law does not lower the standard of proof required which is still beyond a reasonable doubt, but if found guilty, companies can be fined an unlimited amount and remedial orders can be made to force the company to remedy the failure leading to the death.

Another tool at the courts' disposal is the use of a publicity order. This would require companies to take out ads specifying the fact they were found guilty and the amount of the fine. This may be particularly useful if the company in question is an established brand or well known name. The new laws will apply to companies, partnerships and for the first time, Crown institutions which were previously immune. However, the new law will not be retrospective.

Although widely accepted as a step in the right direction, it has been suggested by some groups that the reforms do not go far enough. In a 2003 MORI poll for the Transport and General Worker’s Union, 65% of people surveyed felt that workplace safety will only improve if directors can be personally prosecuted. The joint committee report from the Home Affairs and Work and Pensions Committee suggested that individuals as well as companies should be prosecuted, however this was rejected by the government. The Institute of Directors said that “the Home Office now had he opportunity to put forward legislation that will fill a gap in criminal law by creating a workable offence of Corporate Manslaughter”.

It seems victims and families seeking legal advice are not as concerned with placing a monetary value on the death/injury/medical condition but are more concerned with trying to ascertain some accountability and for the company to take responsibility and rectify the failures so that the situation does not repeat itself.

The new laws go some way to making larger companies more accountable but it seems to be the general consensus that they do not go far enough as there is still no direct personal accountability for individual mangers/directors behaving in a grossly negligent manner but hiding behind the public face of the company.

Paul McIndoe is an online, freelance journalist and keen hillwalker. He lives in Edinburgh with his two dogs.

Class Action Cases in California

by GIBSON SEBASTIAN

Class Actions in California can be brought either in state courts or in federal courts in California. Because federal courts are considered to be more favorable for defendants than state courts, many plaintiff attorneys fight hard to keep such cases in the state courts and a battle often ensues early on in a lawsuit before the judge as to whether the case must be removed to federal court or if it can remain in the state court where it was originally filed.

But what makes a good class action case in the first place and what does a plaintiff class action attorney look for in deciding whether or not to take on such a case? Class action cases can be extremely expensive to pursue. Therefore, when deciding whether or not to take on such a case is a daunting task for many law firms and each case must be examined from all angles at a very early stage to determine its likelihood of success.

Typically, a class action is filed with one or several named plaintiffs on behalf of a proposed class of plaintiffs. This proposed class will then consist of a number of individuals and/or entities who have something in common - that they have each been damaged, usually in a similar way, by a common defendant or by the actions or products of that common defendant.

Thus, in the interview of such a plaintiff who comes to the attorney with his damages, the questions center, to large extent, on how they were damaged, who damaged them, and how many others have similarly suffered such damages.

Damages can be in terms of money that was spent, lost or which was defrauded from the plaintiff. But damages can also be in terms of damage to the business or well-being of the plaintiff. An example might be where a plaintiff, like many others, has purchased a book or drug promising to be or contain a cure for cancer, male baldness or the secret to losing weight which in fact was not or did not contain such a secret or cure.

If the manner in which the harm was perpetrated was by means that are prohibited by other laws besides simply fraud, for instance, by price-fixing, then the class action can be combined with an antitrust action and increased damages can be sought in the complaint that is filed in court.

The next subject of inquiry for an attorney considering a class action case is the defendant involved. If the defendant is a penniless bankrupt company whose officers have already been convicted and sent to prison, to take a dire situation, there may be no value in pursuing such a case. Many clients don't understand why an attorney still won't take the case if the wrong was so blatant. However, clients need to understand that class action cases can take years of time and effort. And moral victories simply won't pay the bills or feed the cat.

Once a class action suit is filed, and once the battles have been waged over which court is the proper court for the case (which can routinely take months of hearings and hundreds of pounds of paper for the paperwork associated with such a battle), a motion must be made to certify the proposed class.

Other steps along the way, include convincing the court that the law firm or law firms involved have both the resources and the expertise in dealing with such a complex and time consuming lawsuit as a class action.

A class action case requires that notice describing the class action be sent, published or broadcast to class members. This expense may be incurred not only near the start of such a case, but again if there is a proposed settlement. Members of a class must be given the opportunity to opt out of the class.

In terms of what a court looks for in allowing or disallowing a class action to proceed forward, courts will generally look at whether 1) the class is large enough to make individual suits impractical, 2) if the class has legal or factual claims in common, 3) whether the claims or defenses of the class or the defendants are typical, 4) whether the representative named plaintiffs will adequately protect the interests of the class, 5) whether the common issues will predominate as opposed to individual fact-specific issues, and 6) if the class action is the best vehicle for resolving the disputes.

Because of the complexity of class actions and the resources required to pursue them, the attorney fees are similarly large. This is one of the primary criticisms of such cases as well. Class members, whose individual damages may be small, but whose combined damages may be huge, often receive little or no benefit in the end. Too many cases are settled with monetary settlements combined with discounts on future purchases, such that when divided up among the class, the individual class members feel there is little incentive to applying for their portion of the damage settlement or for a meaningless coupon to purchase additional products or services from a company they never wish to deal with again.

If you have a situation in which the practices of an entity are causing you or your business harm, or are favoring your competitors to your disadvantage, and you believe others have been similarly harmed or damaged, call your class action law suit lawyer

Sebastian Gibson is a practicing personal injury attorney represents clients throughout Southern California Lawyer from his main offices in Rancho Mirage, California representing California Auto Accident Lawyers, Motorcycle/Vehicle Accidents

Health and safety warning for small businesses

by ANDREW REGAN

A significant number of small to medium-sized businesses (SMBs) are not keeping their health and safety records up to date, it has been claimed - meaning many are in breach of standards.

According to Lisa Fowlie, president of the Institution of Occupational Safety and Health (IOSH), small businesses in general are not fully au fait with health and safety guidelines and regulations, and often view them in a negative light.

Rather than being seen an attempt to improve standards in businesses, she said, too often SMBs see health and safety legislation as being detrimental to their cause.

However, Ms Fowlie has suggested that applying health and safety law is not only "very easy to do", but also confers positive benefits. She admitted, though, that these are facts all too often lost on small businesses.

"It's very difficult to get the message across to small businesses, because by their nature they have got very few people [so there's an issue] of who actually takes the role on… People think that you have to have a huge amount of red tape, and that if you start on [health and safety procedures] then it's going to stop them operating," she commented.

"Whereas in actual fact, a lot of small businesses are very low risk and so the actual implementation is very reasonable and very easy to do. There's a lack of understanding quite often.

"Getting health and safety into businesses is not onerous, it's actually helping them to keep best practice and keep the business up and running and operating," Ms Fowlie continued.

"Good health and safety practice actually generates good business practice."

Ms Fowlie went on to warn small firms that even if they are still of the opinion that health and safety procedures are an unwanted distraction, they should still do all they can to ensure they are fully compliant with the law - because if they don't, the Health and Safety Executive or the local authorities will be on their backs.

In order to reduce the burden of red tape while ensuring that they remain on the right side of the law, Ms Fowlie advised firms to keep things simple.

"You don't want overkill; you don't want masses and masses of files if you don't need them," she said.

"You want to put what we call sensible risk management in, so that they can continue with what they're doing, rather than anything that stops them doing it."

Disclaimer:
This article has been written for information and interest purposes only. The information contained within this article is the opinion of the author only, and should not be construed as advice or used to make financial decisions. Expert financial advice should always be sought and any links contained within this article are included for information purposes only.

What is a Living Will ?

by ROB PARKER

What happens when a person suffers from an illness or an accident that renders them incapable of deciding their own course of treatment? It is a scenario which occurs more often than one might expect; there are various diseases which strip away the power of speech and even consciousness long before they actually claim the body, and of course most people are well aware of the potential injuries from various types of accidents.

In a case where a person’s health has been affected to the point where they can no longer give direction to medical personal about their wishes, there are only two options. The first is that the medial personnel must make the treatment decision; this is not preferred in a case where a patient wishes to avoid a lifetime in a vegetative state, or certain types of treatment. The other option is a living will.

A living will sets out a specific course of action in the event that a person suffers to the extent that they can no longer say their desired course of action. A living will may either directly state what treatments are or are not acceptable to the patient, or they may appoint a health proxy, a person who determines the course of action for the patient.

It’s important to understand that living wills do not come into effect with any accident where a person loses consciousness; they are only applied when their condition is thought to be irreversible. This might make one think that the living will is pretty cut and dried, but in some cases it is not as clear as we would like it to be; a coma as a result of a car accident, for example, may in fact be recovered from, although medical statistics would demonstrate this does not happen very often.

The upshot of the living will is that it ensures that a person retains power over their life or death even when they can no longer communicate for themselves. It also means that the decision over termination or continuance is taken out of the hands of people who care for the patient; the decision is already made.

For those people in particular with religious beliefs concerning treatment, a living will can be very important. Living wills can forbid medical personnel from attempting certain revival techniques, and they can also provide an escape for those with terminal, pain causing illnesses. Moving and unsure of maternity or paternity leave in your new Province? A Canadian lawyer who has experinence with Federal employment standards can help.