The Social Action, Responsibility and Heroism Bill 2014/15

The Social Action, Responsibility and Heroism Bill (or the Sarah Bill) recently underwent its second reading, having first been announced in the Queen’s speech in June.

The Lord Chancellor and Secretary of State for Justice, Chris Grayling, introducing the Bill said:

“The Bill is about bringing back common sense to a part of our society that week in, week out frustrates many of us; about restoring balance to the health and safety culture that all too often goes beyond what is necessary to protect individuals; about tackling a culture of ambulance chasing that all too often is about generating opportunities to earn fees, rather than doing the right thing; about ensuring that people who do the right thing are confident that the law is on their side when they do so.”

The Bill (in its current form) consists of only three operative sections. It states that when considering a claim that a person has acted negligently or in breach of a statutory duty a court must consider whether that person:

  1. was acting for the benefit of society or any of its members
  2. had demonstrated a generally responsible approach towards protecting the safety or other interests of others
  3. was acting heroically by intervening in an emergency to assist an individual in danger and without regard to the person’s own safety or other interests

On the face of it, none of these concepts appear to be particularly controversial and the Lord Chancellor admitted himself that  the intention is not to re-write the law, but rather to send a message to judges and those bringing “spurious” claims that such claims will no longer be tolerated.

Instilling such a message appears worthy of praise and stems from, in part, figures released by the Compensation Recovery Unit revealing that claims against employers have increased in the last three years from around 81,000 in 2010/11 to more than 105,000 in 2013/14; an increase of 30%.

Yet commentators have generally been heavily critical of the Bill. Some have raised concerns that the Bill sends the wrong message to employers by suggesting that they need only take a “generally responsible approach” to health and safety.

Others have suggested that it might encourage people to try and act as heroes in situations when they should not.

Some have questioned whether those the Bill purports to protect (the responsible, the heroes and those acting for the good of society) are really calling out for the courts protection.

And some have raised concerns as to the amount of satellite litigation such a Bill could result in – for how is “acting for the benefit of society” to be defined?

However, perhaps the most pertinent criticism of the bill when examining it from a legal perspective is the fact that it does not “re-write the law”. Indeed it is difficult to find, as Sir Edward Garnier put it, “a practical difference that the Bill would make to the current law”.

It will still fall to the courts to determine negligence and the bill does not tell the court what conclusion it should reach. Neither  does it alter any of the vast number of health and safety regulations which some smaller employers simply find too onerous to meet.

We already have Section 1 of the Compensation Act 2006 which was enacted with a similar goal. This sets out that when imposing a standard of care upon a defendant the courts must consider whether the imposition of such a standard would prevent  a desirable activity from taking place. In other words, the court must look at whether the activity was being undertaken for the benefit of society.

But such a “message” has done little to stem the tide of claims being brought.

It is not therefore surprising that the Bill has been criticised as being nothing more than a political statement.

If the Lord Chancellor genuinely wants to put  a stop to spurious claims being made, then more needs to be done to prevent such claims from being brought in the first place.

He did refer to those steps that this government has already taken in this regard:

“We have banned referral fees … We have reduced by more than half the fees lawyers can charge for processing low-level personal injury claims. We have banned claims management companies from offering cash incentives or gifts to people who bring those claims …”

Yet with the introduction of Qualified One Way Cost Shifting last year, not only can a “spurious” claimant continue to bring a claim without fear of incurring any costs themselves (provided the claim is not completely void of merit or dishonest) but now a successful defendant, say an employer who has demonstrated a generally responsible approach toward protecting the safety of others, will not be able to recover their own costs.

Certainly those small businesses the Lord Chancellor is purporting to protect will not wish to be dragged through the court system only to find themselves even more out of pocket at the other end in the event that they aresuccessful.

Those measures already taken have hit solicitors and claims management companies in the pocket but have not altered the fact  that a personal injury claimant continues to get a free ride and until this issue is tackled it is difficult to foresee that a bill such as Sarah will have the Lord Chancellor’s desired effect.