Personal injury team supports APIL’s criticism of SARAH Bill

Posted: 22/07/2014

The Association of Personal Injury Lawyers (APIL) has criticised “Government hype” about its Social Action, Responsibility and Heroism (SARAH) Bill to protect "everyday heroes" arguing that, if approved, the Bill will put vulnerable people at risk. The Bill is due its second reading in the House of Commons today, 22 July 2014.

The Bill provides that, to determine whether claims for negligence and breach of statutory duty should succeed, the court must take into account 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
• 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
• 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.

APIL has said that the Bill is “a licence for have-a-go heroes to cause needless injury, for volunteers who work with children and elderly people to escape proper vetting, and for rogue bosses to dodge their responsibilities to look after their employees”. APIL president, John Spencer, argued that the Bill adds nothing to the current law: “... the real danger is that populist government rhetoric about the Bill will lead people to believe they are impervious to the law if they injure someone through their own recklessness while being ‘heroic’….Those responsible for vetting volunteers to work with children will feel they can cut corners in the process, leaving youngsters vulnerable to predatory adults, because the law is said to protect volunteers….Employers will believe they can avoid the law if they injure workers, provided they are ‘doing their best’. But what if their best is not good enough?”

Philippa Luscombe, partner in the personal injury team at Penningtons Manches LLP, agrees with APIL’s views: “We, like APIL and many others working in the fields of personal injury and health and safety,  do not believe that this Bill will either reduce compensation claims or protect ‘heroes’. Our view is that employers will cut corners when it comes to safety and there will be less protection for the  vulnerable, potentially leading to tragic consequences and putting more people at risk.

“The Government’s focus appears to be on reassuring the public. For example: “… 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”. However, the ‘hype’ around the Bill forgets the basic principles of a negligence claim which are that a claim will only rest when an individual has acted in a way that no reasonable person would act and in a way that was foreseeable would put others in danger of injury. This is a high  bar. When determining whether an individual (or entity) has been negligent, the court already considers all the surrounding circumstances when determining what was and was not reasonable action by the defendant.

“The SARAH Bill sets out criteria for claims which are already considered by the courts. However, the Bill ignores the fundamental principle that bringing a claim is about compensating an individual or individuals for injuries suffered. It is not about punishing a defendant  who is often indemnified by insurance in any event. If the Bill is simply designed to reassure the public, our concern is that those who either carelessly or deliberately cause harm to others may regard the Bill as a licence to act as they wish with less risk of consequences.”

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