Thursday, 3 July 2014
Heroes and Villains
Mr Grayling, Secretary of State for Justice and Lord Chancellor is introducing proposed legislation which he believes will "finally slay much of the "elf and safety" and jobsworth culture that holds back so much of our society." The Social Action, Responsibility and Heroism Bill was born of a meeting of minds of Mr Grayling and Oliver Letwin . These Georges have identified their dragon: the law of negligence and civil claims for breach of statutory duty. Heroic stuff.
I leave it to others to judge whether the dragon is reality or myth but legislation this important deserves careful examination. How will SARAH slay the dragon?
The bill provides that in determining claims for negligence and breach of statutory duty the court must have to take into account the following matters:
Clause 2 - "whether the alleged negligence or breach of statutory duty occurred when the person was acting for the benefit of society or any of its members."
Clause 3 - "whether the person, in carrying out the activity in the course of which the alleged negligence or breach of statutory duty occurred, demonstrated a generally responsible approach towards protecting the safety or other interests of others."
Clause 4 - "whether the alleged negligence or breach of statutory duty occurred when the person 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."
Quite deliberately the Bill does not dictate how the court must take into account these matters when determining a claim in negligence or breach of statutory duty, only that it "must" have regard to them. The explanatory notes to the bill do not assist in interpreting the provisions of the bill. Are these matters to be taken into account when considering liability or quantum? Presumably liability. "The person" in each case is the person who is alleged to have been negligent or in breach of duty (clause 1).
To those of us working in the civil justice system it may come as a surprise to learn that the government believes that these matters are not presently being taken into account by the courts. In fact Mr Grayling accepts in his article on Conservative Home cited above that the courts apply "common sense", and the government says that "the bill has been developed in response to concerns that people may be put off from taking part in voluntary activities, helping others or intervening in emergencies due to worries about risk and liability." It believes that the bill will "send a strong message to reassure people" that the court will consider the wider context of activities being considered in a negligence claim. So, the government is not saying that the bill will change what the courts decide in negligence cases, only that it will reassure people who are worried about how the courts deal with such cases. The Lord Chancellor is proposing an Act of Parliament which is not intended to change the law.
He is surely right not to claim that the bill will change the way the courts actually deal with negligence and statutory duty claims as an examination of the three main clauses demonstrates.
Clause 2 - Social Action
When might clause 2 apply? What is "society" (didn't someone once say there was no such thing?) and does it include groups of people who live or come from abroad? Surely a "member of society" is, in short, everyone. When I drive my son to a cricket match I am acting for the benefit of a member of society, i.e. my son. In fact when I drive to work alone I am acting to the benefit of my clients that day (arguably). An employer who operates a factory is benefiting members of society. A doctor who treats a patient is acting for the benefit of a member of society. The Home Office is trying to help everyone. So this provision applies in almost every conceivable situation.
Is the degree of benefit to others from the activity relevant to the determination of the claim? Perhaps the fact that I am driving to work would not cut much ice with the judge if when doing so I ran someone over. But would a different standard of care apply to a school bus driver? He is doing a more socially useful act than I am when driving on the road. Should a different standard of care apply to his driving? Often if more people are likely to be affected by the activity, the degree of care required to be taken actually increases. An airline might be expected to take more care over the maintenance of its aircraft than a cyclist over the care of his bicycle.
The work of doctors and other healthcare professionals is for the benefit of members of society. Would this bill lower the standard of care they are expected to meet? Will the Bolam test be modified? Will the standard of care expected of those who work in other jobs be affected by this bill: dentists, physiotherapists, paramedics, traffic police, highways inspectors, lawyers? Of course not, because the standard of care is set by reference to all the circumstances of a particular case.
Will clause 2 cause any judge to make a different determination of a negligence claim than he would now make? I doubt it.
Clause 3: Responsibility
Clause 3 requires the court to take into account the general approach to the safety or other interests of others of the person carrying out the activity in which the alleged negligence occurred. "Other interests"? So, presumably a surgeon who has a good patient safety record should have that taken into account if he amputates the wrong limb. A driver with an unblemished record over 40 years should have that taken into account when he runs a red light and kills a child? It reminds me of this Steve Coogan character in the mockumentary The Swiming Pool on The Day Today.
A judge hearing a negligence case now would, I believe, take into account that the allegedly negligent individual had no record of negligence or had generally taken care. In certain cases that might lead a judge to conclude that it was unlikely that they were negligent on the particular occasion because it would have been out of character. The unblemished record of the surgeon might lead the court to be reluctant to find that he was negligent on a particular occasion, but if the negligence was obvious, such as amputating the wrong leg, his record will be of little assistance to him. If, however, on the facts, a defendant fell below an acceptable level of care for a driver, employer or doctor, for example, then they would be found liable whether it was the first or the umpteenth time they had been negligent. Will clause 3 make any different to any judgment? I doubt it.
Clause 4: Heroism
Clause 4 would have quite narrow application. The person acting heroically is the person alleged to have been negligent, not the person injured. Presumably this is intended to protect fire or police officers from being found negligent when they inadvertently injure someone when trying to rescue or protect them or others. Is a police officer running a red light to attend an incident acting "heroically"? Is the paramedic who misses an obvious spinal injury a hero? The provision will certainly not protect employers of rescuers from being sued if the rescuer is injured due to negligence of the employer. I can see the logic behind this provision, but I wonder how many judges have found a heroic rescuer to be negligent? I would be interested in learning of any examples. Even if the courts have made such findings they would undoubtedly have taken into account the circumstances including that the defendant was acting "heroically".
The villain of the piece, the law of negligence, is designed to provide compensation for avoidable injury not to punish the negligent. Negligence claims are determined on the evidence in each case, taking into account all the relevant circumstances. The courts do take into account factors such as those set out in SARAH when they are relevant but do not when they are not relevant. Decisions whether an act or omission was negligent are made after the evidence is heard and arguments made. For that reason there is a degree of uncertainty involved. You cannot accurately predict the outcome of every claim.
The determination of negligence claims is in the hands of judges. You would not mistake a room full of county court and high court judges for a gathering of socialist radicals. They come in all sorts of political shapes and sizes but they are generally conservative (small 'c'). As a group they are neither pro-claimant nor pro-defendant. They are truly independent. That is one of the greatest assets of our system of law.
If this bill is enacted I do not believe it will make a jot of difference to the way the courts determine cases involving negligence or breach of statutory duty. It will serve only to require judges to include in their judgments that they have taken into account the matters set out in the SARAH Act. They will then come to the same decisions they would have come to had the Act never existed, not because they will ignore the Act, but because they already take into account all the matters set out in it.
Is that of reassurance to people? Does that justify this proposed Act of Parliament? Surely, by the government's own admission this bill is pure PR. It has the hallmarks of a Something Must be Done Act. which leaves nothing unchanged. This is not a party political point - the last Labour government came up with section 1 of the Compensation Act.
There are plenty of ways in which the civil laws of compensation could be changed and there are sound reasons to be concerned about the way the law of negligence operates. But it doesn't say much for "the people" if we are satisfied by an Act of Parliament which is designed merely to reassure us and which will not actually make any substantial change to the way negligence cases are determined.