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The Social Action, Responsibility and Heroism Bill - Is it Needed?

Image © Kevin Blowe

About The Author

Former Author (Assistant Editor)

Author is a King's College London Law graduate, currently working as a corporate paralegal for a firm based in South West England. Author is due to begin his BPTC at the University of Law in September 2015, having attained a scholarship from Middle Temple.

In the Queens speech last month there was a surprise inclusion beyond the normal legislative promises. The Social Action, Responsibility and Heroism (SARAH) Bill was announced which would attempt to prevent claimants from recovering damages in negligence if it was determined that the harm was the result of an action of social responsibility. Justice Secretary Chris Grayling explained that the Bill is intended to combat the health and safety cultureand is designed to prevent successful claims in negligence against people who have acted in what is deemed a socially conscious way, such as clearing the streets of snow or trying to help someone in distress. However, it is at least debatable that this is merely a Bill that fulfils a political rather than legal need. As we approach an election year, the government are eager to present themselves as in touch with the concerns of the public, one part of which is the fear of a health and safety culture developing in the UK.

Health and Safety Culture

Complaints about overbearing health and safety laws or a compensation culture are often brought up in political conversation. Much of the focus is on claimants who are pursuing claims that seem to go against the grain of common sense who are perceived to be influenced by the pressure of no win no feefirms. Some of these firms do not help their cause, one of the most obvious instances of misreading public opinion would be the advert released by First4Lawyers which has been heavily criticised for trivialising personal injury claims. As already highlighted by Emily Clements in an earlier article though, the notion of a compensation culture in the UK may well be over-exaggerated by the media.

The concern over the issue of our health and safety culturewas so great that at the beginning of this Parliament, the government commissioned Lord Young to investigate this culture and recommend any changes to the law that might be required. Unsurprisingly for those who have researched the issue, he concluded that there was no such culture within the UK. It is then extremely unhelpful that the Justice Secretary has released a YouTube clip explaining the motivation for the Bill being tackling the elf nsafety jobsworth culture in our society”.

Personal Injury Claimants

Those wishing to pursue a claim for personal injury have had to pay privately for their claim for several years now, which resulted in the growth of no win no feeclaims which have already been targeted by this government in the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO). LASPO introduced several changes to directly challenge no win no feefirms; s. 56 states that a regulated person (a lawyer or law firm) cannot pay referral fees to claims management companies which has limited the flow of work that is provided to firms. Previously the claims management companies could be paid a commission for every potential claim that was initially assessed and then passed on to a law firm to litigate. In addition, s. 44(4) provides that the claimant will be liable to any success fees from litigation rather than the defendant, thus almost completely reducing the incentive for potential litigants as fees will be deducted from any damages that result from the claim.

There has been some limited solace for personal injury firms in recent years due to the introduction of ‘qualified one way cost shifting’ that had allowed recovery of fees to be levied against the defendant rather than the claimant, but this has now come to an end. As evidenced earlier by Emily’s article, it is apparent that there are some claims which have increased, most notably whiplash, but there have already been steps made to tackle these instances such as a greater emphasis on the need for medical experts.

Is there a need for legislation?

In light of the fact that there does not seem to be the perpetually feared compensation culture, it is unclear whether the government should be spending important Parliamentary time on pursuing a Bill that has very limited chance of making a positive difference. As is evident from LASPO, this government is extremely impatient and expects almost instant results when attempting to change anything in the legal field. The changes implemented by LASPO are a perfect example of the governments inability to consider the effects of legislation before making further alterations to the statute book. As already examined by Ivonna, LASPO withdrew legal aid from almost all areas of civil litigation, most notably family law, changes that have been heavily criticised for causing a massive increase in litigants in person and failing to protect the rights of parents and children. Despite the fact that these sweeping changes only came into effect in April 2013, the government pressed ahead with making similar restrictions to criminal legal aid, most notably prison law, without first allowing the impacts of LASPO to be measured and appreciated.

In fact, section 1 Compensation Act 2006 already states that:

A court considering a claim in negligence or breach of statutory duty may, in determining whether the defendant should have taken particular steps to meet a standard of care (whether by taking precautions against a risk or otherwise), have regard to whether a requirement to take those steps might

(a) prevent a desirable activity from being undertaken at all, to a particular extent or in a particular way, or

(b) discourage persons from undertaking functions in connection with a desirable activity.

This clearly covers the situations that Mr Grayling is concerned about, the snow-sweepers or small business employers who have attempted to do a socially desirable activity. This actually goes further than the SARAH Bill, as it makes a suit in negligence less likely to succeed rather than merely affecting the remedy available to litigants. The question therefore is whether the true motivation of this Bill is political grandstanding which will ultimately cause further problems for lawyers and claimants who have genuine grievances. There are already several obstacles inherent in negligence claims, such as the need for the four pillars (a duty of care, a breach of that duty, causation and harm) as well as those mentioned that have been introduced over the course of this Parliament and it is becoming an increasingly complex legal landscape. The paradoxical effect of such complexity might be an increased reliance upon recourse to the law. This would be due to the fact that the respective liabilities of each party may become even less clear, so in the situation of the snow sweeper, is it really the case that there action was socially desirable, or did they have other motivations?

In my opinion, the Bill is unnecessary and a waste of Parliamentary time and taxpayers money which will likely be the subject of extensive litigation over the true meaning of social responsibilityand social action.

Further Reading

Lord Dyson, Holdsworth Club Lecture - Compensation Culture: Fact or Fantasy?

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Tagged: Justice, Personal Injury, Tort Law

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