The Social Action, Responsibility and Heroism Act 2015 (the Act) received Royal Assent on 12 February 2015 and will come into force on a day to be appointed by Regulations to be made by the Secretary of State.
Chris Grayling then Justice Secretary hailed the Act as ‘a balance to counter the health and safety culture’ to provide reassurance to employers and volunteers that the courts will consider the context of a negligent action that caused an injury.
In contrast Lord Pannick claims that: ‘This always was and it remains the most ridiculous piece of legislation approved by Parliament in a very long time… a text that would barely muster a pass mark in GCSE legal studies… a pitiful creature of a Bill’.
So who is right? In this article we consider what the Act is, and what impact it will have on claims in negligence, once it comes into force.
What does the Act say?
The Act provides that, when a court is considering a claim for negligence or breach of statutory duty, it must have regard to:
- whether the person, in carrying out the activity in the course of which the alleged negligence or breach occurred, demonstrated a predominately responsible approach towards protecting the safety or interest of others; and/ or
- whether the allegedly negligent act or breach occurred when the person was acting for the benefit of society or any of its members; and/or
- whether the person was acting heroically by intervening in an emergency to assist an individual in danger.
For our purposes it can therefore technically apply to the most common areas of health litigation: clinical negligence, employers’ liability and public liability.
What impact will the Act have?
Predominately responsible approach
In an employer’s and public liability claim, taken literally, the Act will arguably assist a trust who has an excellent health and safety record, who generally adopts a responsible and considered approach.
If, on one occasion, it fails to put out wet floor signs after mopping the floor for example, resulting in a patient, visitor or staff member suffering a serious fall, leading to significant, life changing injuries, strictly speaking the court would need to take into account the trust’s impeccable track record when determining liability.
But how could it do this? Surely, where the facts are clear, the court would need to maintain its usual approach and find the trust negligent and/or in breach of statutory duty, otherwise how could there be said to be justice for the injured party?
However, in some cases the facts will not be as clear. Using the same example, if there was a factual dispute over whether wet floor signs were utilised, one could envisage a situation whereby the court would arguably be justified in taking into account the trust’s track record (their ‘predominately responsible approach’) when determining liability.
It stands to reason, that this will almost certainly have a knock-on effect in relation to disclosure. A defendant may now have to disclose all documents in relation to previous accidents of this nature or previous cleaning records for example, which may support or conversely undermine their position that they are usually ‘responsible’.
In a simple ‘slip and trip’ case, this could involve the collation of a large volume of documents, which will be a timeconsuming exercise, leading to increased legal fees on both sides.
Similarly in a clinical negligence claim, will the disclosure of an individual surgeon’s statistics in relation to complaints, deaths and near misses be required as standard? If this is the case then the court would be wandering into the territory of similar fact evidence, which would likely give rise to protracted arguments over whether the evidence is admissible.
For the benefit of society
It is difficult to see how this aspect of the Act will be applied in claims for clinical negligence. By the nature of their work, any nurse or clinician accused of a negligent act should have been acting for the benefit of a member of society when the act occurred. Again, on a literal application, the court must take this into account when considering the claim.
However this is surely not practicable. If, on the facts of the case, a court finds that, in the normal course of events, breach of duty and causation would be established, how can it take into account that the surgeon was acting for the benefit of the patient when determining liability or even quantum?
The only way the court could do this would be to either find against all of the evidence and hold that the surgeon is not liable, or reduce the claimant’s damages. Neither of these options would be palatable to an injured claimant, suffering from the physical and financial consequences of negligently performed surgery for example.
This is the least likely section to apply to claims arising in the health sector. This section has reportedly been included to reassure the passer-by that they will not be sued if they get involved in helping someone who is in trouble.
Whilst the scope is limited, it does raise questions, such as what would happen in the situation where a nurse sees a patient collapse in a hospital corridor, suffering from a cardiac arrest, and in administering CPR breaks a rib? Under current law, the nurse will be judged by the usual Bolam and Bolitho tests, but now there is a possibility that the court must take into account the fact that she was acting heroically, and assisting an individual in danger. How the court would do this in practicable terms raises the same issues as above.
In summary, it seems impossible to provide a certain answer as to what impact the Act will have, and we must therefore wait to see how the court interprets and applies the Act once it comes into force. Given the practicable difficulties it seems likely that the courts may simply pay lip service to the Act, and that it will become a political tool designed to appease the general public, but with little or no effect on the current law of negligence and breach of statutory duty.