In the broadest sense, however, both the criminal and the civil law impose ‘penal’ sanctions. The person who is convicted of a criminal offence is likely either to have to pay a fine or to serve a term of imprisonment: the defendant who loses a civil case is likely to have to pay the claimant (victim) a large sum of money to compensate for the injury which has been suffered. The penal element of civil law is masked where compensation is paid by the defendant’s insurance company. Punishment is normally considered as related to wrongdoing. Unfortunately, however, in health and safety matters, there is not necessarily a direct co-relationship between wrongdoing and injury suffered. On the one hand, a minor lapse may lead to a major injury and, on the other, good fortune may decree that reprehensible behaviour causes little or no injury. The criminal law is properly committed to the punishment of wrongdoing; so, it can properly relate the punishment to the behaviour of the accused, rather than to the consequences of the accused’s behaviour. Ideally, wrongful behaviour will be identified before injury occurs. Health and safety legislation aims to achieve this, because it decrees that the offence is in failing to observe the standards which safety legislation has prescribed: the offence is committed if the conduct is unlawful, whether or not any personal injury has occurred. Nevertheless, in practice, it may be difficult to persuade a court that a situation is dangerous if, over many years, no injury has occurred. On the other hand, if a relatively minor lapse has caused a major catastrophe, there tends to be an emotive reaction: it is easy to look for a human scapegoat. At the present time, even if catastrophe is attributable to a natural cause, such as exceptionally heavy rainfall, questions are asked as to whether someone ought to have anticipated the situation and taken pre-emptive action, such as prohibiting urban development in the flood plain of a river. The dilemma of the civil law is greater than that of the criminal law: it has to balance the needs of the victim against justice to the ‘wrongdoer’. One classical theory was that in civil law, as in criminal law, only those who were blameworthy should be required to pay compensation. Thus, it was said of civil (tort) liability by JW Salmond, author of a seminal text:

doi:10.4324/9781843140504-32

Chapter

In the broadest sense, however, both the criminal and the civil law impose ‘penal’ sanctions. The person who is convicted of a criminal offence is likely either to have to pay a fine or to serve a term of imprisonment: the defendant who loses a civil case is likely to have to pay the claimant (victim) a large sum of money to compensate for the injury which has been suffered. The penal element of civil law is masked where compensation is paid by the defendant’s insurance company. Punishment is normally considered as related to wrongdoing. Unfortunately, however, in health and safety matters, there is not necessarily a direct co-relationship between wrongdoing and injury suffered. On the one hand, a minor lapse may lead to a major injury and, on the other, good fortune may decree that reprehensible behaviour causes little or no injury. The criminal law is properly committed to the punishment of wrongdoing; so, it can properly relate the punishment to the behaviour of the accused, rather than to the consequences of the accused’s behaviour. Ideally, wrongful behaviour will be identified before injury occurs. Health and safety legislation aims to achieve this, because it decrees that the offence is in failing to observe the standards which safety legislation has prescribed: the offence is committed if the conduct is unlawful, whether or not any personal injury has occurred. Nevertheless, in practice, it may be difficult to persuade a court that a situation is dangerous if, over many years, no injury has occurred. On the other hand, if a relatively minor lapse has caused a major catastrophe, there tends to be an emotive reaction: it is easy to look for a human scapegoat. At the present time, even if catastrophe is attributable to a natural cause, such as exceptionally heavy rainfall, questions are asked as to whether someone ought to have anticipated the situation and taken pre-emptive action, such as prohibiting urban development in the flood plain of a river. The dilemma of the civil law is greater than that of the criminal law: it has to balance the needs of the victim against justice to the ‘wrongdoer’. One classical theory was that in civil law, as in criminal law, only those who were blameworthy should be required to pay compensation. Thus, it was said of civil (tort) liability by JW Salmond, author of a seminal text:

Chapter

In the broadest sense, however, both the criminal and the civil law impose ‘penal’ sanctions. The person who is convicted of a criminal offence is likely either to have to pay a fine or to serve a term of imprisonment: the defendant who loses a civil case is likely to have to pay the claimant (victim) a large sum of money to compensate for the injury which has been suffered. The penal element of civil law is masked where compensation is paid by the defendant’s insurance company. Punishment is normally considered as related to wrongdoing. Unfortunately, however, in health and safety matters, there is not necessarily a direct co-relationship between wrongdoing and injury suffered. On the one hand, a minor lapse may lead to a major injury and, on the other, good fortune may decree that reprehensible behaviour causes little or no injury. The criminal law is properly committed to the punishment of wrongdoing; so, it can properly relate the punishment to the behaviour of the accused, rather than to the consequences of the accused’s behaviour. Ideally, wrongful behaviour will be identified before injury occurs. Health and safety legislation aims to achieve this, because it decrees that the offence is in failing to observe the standards which safety legislation has prescribed: the offence is committed if the conduct is unlawful, whether or not any personal injury has occurred. Nevertheless, in practice, it may be difficult to persuade a court that a situation is dangerous if, over many years, no injury has occurred. On the other hand, if a relatively minor lapse has caused a major catastrophe, there tends to be an emotive reaction: it is easy to look for a human scapegoat. At the present time, even if catastrophe is attributable to a natural cause, such as exceptionally heavy rainfall, questions are asked as to whether someone ought to have anticipated the situation and taken pre-emptive action, such as prohibiting urban development in the flood plain of a river. The dilemma of the civil law is greater than that of the criminal law: it has to balance the needs of the victim against justice to the ‘wrongdoer’. One classical theory was that in civil law, as in criminal law, only those who were blameworthy should be required to pay compensation. Thus, it was said of civil (tort) liability by JW Salmond, author of a seminal text:

DOI link for In the broadest sense, however, both the criminal and the civil law impose ‘penal’ sanctions. The person who is convicted of a criminal offence is likely either to have to pay a fine or to serve a term of imprisonment: the defendant who loses a civil case is likely to have to pay the claimant (victim) a large sum of money to compensate for the injury which has been suffered. The penal element of civil law is masked where compensation is paid by the defendant’s insurance company. Punishment is normally considered as related to wrongdoing. Unfortunately, however, in health and safety matters, there is not necessarily a direct co-relationship between wrongdoing and injury suffered. On the one hand, a minor lapse may lead to a major injury and, on the other, good fortune may decree that reprehensible behaviour causes little or no injury. The criminal law is properly committed to the punishment of wrongdoing; so, it can properly relate the punishment to the behaviour of the accused, rather than to the consequences of the accused’s behaviour. Ideally, wrongful behaviour will be identified before injury occurs. Health and safety legislation aims to achieve this, because it decrees that the offence is in failing to observe the standards which safety legislation has prescribed: the offence is committed if the conduct is unlawful, whether or not any personal injury has occurred. Nevertheless, in practice, it may be difficult to persuade a court that a situation is dangerous if, over many years, no injury has occurred. On the other hand, if a relatively minor lapse has caused a major catastrophe, there tends to be an emotive reaction: it is easy to look for a human scapegoat. At the present time, even if catastrophe is attributable to a natural cause, such as exceptionally heavy rainfall, questions are asked as to whether someone ought to have anticipated the situation and taken pre-emptive action, such as prohibiting urban development in the flood plain of a river. The dilemma of the civil law is greater than that of the criminal law: it has to balance the needs of the victim against justice to the ‘wrongdoer’. One classical theory was that in civil law, as in criminal law, only those who were blameworthy should be required to pay compensation. Thus, it was said of civil (tort) liability by JW Salmond, author of a seminal text:

In the broadest sense, however, both the criminal and the civil law impose ‘penal’ sanctions. The person who is convicted of a criminal offence is likely either to have to pay a fine or to serve a term of imprisonment: the defendant who loses a civil case is likely to have to pay the claimant (victim) a large sum of money to compensate for the injury which has been suffered. The penal element of civil law is masked where compensation is paid by the defendant’s insurance company. Punishment is normally considered as related to wrongdoing. Unfortunately, however, in health and safety matters, there is not necessarily a direct co-relationship between wrongdoing and injury suffered. On the one hand, a minor lapse may lead to a major injury and, on the other, good fortune may decree that reprehensible behaviour causes little or no injury. The criminal law is properly committed to the punishment of wrongdoing; so, it can properly relate the punishment to the behaviour of the accused, rather than to the consequences of the accused’s behaviour. Ideally, wrongful behaviour will be identified before injury occurs. Health and safety legislation aims to achieve this, because it decrees that the offence is in failing to observe the standards which safety legislation has prescribed: the offence is committed if the conduct is unlawful, whether or not any personal injury has occurred. Nevertheless, in practice, it may be difficult to persuade a court that a situation is dangerous if, over many years, no injury has occurred. On the other hand, if a relatively minor lapse has caused a major catastrophe, there tends to be an emotive reaction: it is easy to look for a human scapegoat. At the present time, even if catastrophe is attributable to a natural cause, such as exceptionally heavy rainfall, questions are asked as to whether someone ought to have anticipated the situation and taken pre-emptive action, such as prohibiting urban development in the flood plain of a river. The dilemma of the civil law is greater than that of the criminal law: it has to balance the needs of the victim against justice to the ‘wrongdoer’. One classical theory was that in civil law, as in criminal law, only those who were blameworthy should be required to pay compensation. Thus, it was said of civil (tort) liability by JW Salmond, author of a seminal text:

ABSTRACT

In the broadest sense, however, both the criminal and the civil law impose ‘penal’ sanctions. The person who is convicted of a criminal offence is likely either to have to pay a fine or to serve a term of imprisonment: the defendant who loses a civil case is likely to have to pay the claimant (victim) a large sum of money to compensate for the injury which has been suffered. The penal element of civil law is masked where compensation is paid by the defendant’s insurance company. Punishment is normally considered as related to wrongdoing. Unfortunately, however, in health and safety matters, there is not necessarily a direct co-relationship between wrongdoing and injury suffered. On the one hand, a minor lapse may lead to a major injury and, on the other, good fortune may decree that reprehensible behaviour causes little or no injury.