Background
One of the measures announced in the queen’s speech was the
Social Action, Responsibility and Heroism bill, from Chris Grayling’s Ministry
of Justice (though conceived before his appointment as Lord Chancellor).
In a piece on Conservative Home (http://www.conservativehome.com/platform/2014/06/chris-grayling-mp-our-bill-to-curb-the-elf-and-safety-culture.html)
, Grayling described it as ‘our bill to end Elf and Safety culture’. Any bill
which is trumpeted with a limp joke stolen straight from Richard Littlejohn is
a worrying sight, and one which needs to be considered carefully.
The Intention of the Bill
As Grayling sees it, the ‘elf and safety’ culture ‘holds
back much of our society’. Clearly he has not read the section on the HSE
website dedicated to consistently and regularly debunking the majority of the
‘elf and safety culture’ myths which appear in the press.
Clearly he has also not read much tort case law either, as
he also gives the following examples (with comment):
“take the responsible employer who puts in place proper training for staff,
who has sensible safety procedures, and tries to do the right thing”
That sounds
almost like a layman’s explanation of the standard of care in employer’s
liability, no? Apparently not…
“And then someone injures
themselves doing something stupid or something that no reasonable person would
ever have expected to be a risk. Common sense says that the law should not
simply penalise the employer for what has gone wrong”.
It is not just common sense that says this; so would the law. ‘Reasonable care’ would not require
protection against a risk that ‘no reasonable person’ would expect.
“or the member of our emergency
services who feels that they can’t come to the rescue of someone in difficulty
because of the fear they will end up in trouble for breaching health and safety
rules.
This seems to be about health and safety regulation, not negligence;
the health and safety culture is often not a result of the regulations but of
their perception.
“or the person who holds back
from sweeping the snow off the pavement outside their house because they are
afraid someone will then slip on the ice and then sue them”
This idea has been around for a considerable time and is as far as I
know is a myth, completely unsupported by authority.
If a duty were to be imposed in those circumstances, assuming there is
no occupiers’ duty as this is the pavement outside the home, it would be under the
Caparo principles and it would have to be ‘fair just and reasonable’ to impose
a duty. Courts are unlikely to think that it is fair to do so. Further,
clearance would not give rise to a duty to continue to clear the snow/ice in
future. At most the duty which would arise would be a duty to take reasonable
care in the first place.
Therefore the act of clearance would have to be done in a negligent way,
which is rather more difficult to prove than the usual failure to clear by a
local authority.
It was also reported by Private Eye that the government’s own DirectGov
website advised, until recently, that there was no reason not to clear snow
outside your home. That advice no longer appears, but is archived here: http://webarchive.nationalarchives.gov.uk/20121015000000/www.direct.gov.uk/en/Nl1/Newsroom/DG_191868?cid=rss
“of course courts do apply common
sense, and very often throw out the most absurd cases. But that’s not before
the individuals involved have been through incredible stresses and strains when
they think they have just done the right thing”
So the law often gets it right, but it should get it right at an earlier
stage. Right at the beginning of a case. It is always easy with hindsight to
say that a case was bound to fail but how is any legislative framework supposed
to fix that?
The answer according to Grayling is by providing a ‘signpost from
parliament to the courts’. Before we consider the actual clauses in the Bill,
we can already see that it cannot transplant the decision making process from
the end to the beginning of litigation. In any event there are already
procedures to deal with such ‘absurd’ cases: strike out and summary judgment.
The Bill
The bill applies to all claims for negligence or breach of statutory
duty, when determining the standard of care (section 1).
The bill requires the courts to have regard to whether the alleged
negligence or breach of statutory duty occurred:
-
When the person (defendant) was acting for the
benefit of society (s.2);
-
Whilst the person was demonstrating a generally
responsible approach towards protecting the safety or other interests of others
(s.3);
-
When the person was acting heroically by
intervening in an emergency situation to assist an individual in danger and
without regard to the person’s own safety (s.3).
Effect of the bill
Firstly, a reminder that civil liability for breach of health and
safety regulations was (largely) abolished by the Enterprise & Regulatory
Reform Act 2013, bringing most workplace health and safety claims back under a
broader ‘negligence’ test.
So in almost all circumstances (‘general’ common law negligence,
occupiers’ liability, employers’ liability), the standard of care is
‘reasonable care’, or words to that effect. What is reasonable care is always
dependant on the circumstances and so there is nothing to stop the court taking
the matters above into account now.
Of course the bill requires them
to be taken into account, but gives no further guidance on the effect they
should have. That will be entirely up to the courts, and will lead to extensive
litigation in the short term.
It remains to be seen what (if anything) the bill would in fact add to
the law on negligence. It is unlikely to change the law significantly enough to
prevent Grayling’s ‘heroes’ having to go through the process of litigation
before succeeding.
The Compensation Act 2006
In any event the same result appears to have been achieved by the
Compensation Act which states:
S 1 Deterrent
effect of potential liability
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.
Conclusion
This appears to be another example of parliament’s time being spent
legislating against a problem which doesn't exist (see also the Saatchi Bill). Time
and resources could be better spent on educating people about the myths of ‘elf
and safety’ law, or perhaps preventing the collapse of the criminal bar.
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