This article first appeared in Health and Safety at Work magazine,  http://www.healthandsafetyatwork.com/hsw/

It’s unclear whether the Social Action, Responsibility and Heroism Bill (SARAH), announced in the Queen’s speech in early June, is just political rhetoric or part of a sensible reform of the personal injury claims system.

The bill’s basic premise is that, when considering a claim that a person was negligent or breached a statutory duty, courts must factor in what the person was doing (or trying to do) at the time. When deciding whether a defendant had breached their duty of care owed to the claimant, judges will have to consider whether they were acting for the benefit of society, had demonstrated a generally responsible approach towards others’ safety or were acting heroically by intervening in an emergency.

The idea is that we should not be deterred from participating in an active society for fear our good intentions will turn sour if somebody is injured by our actions. This is an issue government and the regulator have been trying to tackle via recent reform of costs rules in civil litigation and the HSE’s myth buster campaign. So, does SARAH add anything?

There are limits on how effective the law is likely to be in practice. It only has an impact once cases reach the civil courts. This will not necessarily deter claimants from bringing proceedings in the first place — after all, the common law duty of care principles have not changed — and many cases do not make it to court,  because defendants (particularly insured ones) cannot justify the time, cost and distress caused by pursuing a case and instead agree to settle early.

It will be a significant gamble for defendants to take their cases to court in the expectation that a friendly judge will agree that their good intentions are sufficient to justify rejecting the claim. The official impact assessment for SARAH admits there is likely to be only a slight drop in the number of negligence cases brought and a slightly reduced aggregate amount of compensation paid. So it seems the government’s own aspirations for the new law are low.

It is also significant that SARAH has no impact on criminal liabilities for breach of health and safety law. Though concerns about civil claims are more significant for many employers and community organisations, it is naïve to believe that regulators are consistent in the way they apply the law. This is particularly true of enforcement notices, which, though not criminal sanctions, can still be damaging for organisations. It would be nice to think regulators might take into account SARAH and the signpost from government not to punish people who have been trying to do the right thing. But the strongest way of ensuring that would be to extend SARAH to cover criminal liabilities for health and safety failings.