|From:||Neil Foster <firstname.lastname@example.org>|
|To:||Robert Stevens <email@example.com>|
|Date:||16/02/2015 23:05:39 UTC|
|Subject:||Re: SARAH Act 2015|
when a court, in considering a claim that a person was negligent or in breach of statutory duty, is determining the steps that the
person was required to take to meet a standard of care.
In the case of a statutory liability which can be breached without fault, then the court will not even need to embark on an enquiry about a “standard of care” and so the whole Act will not apply.
I just issue a mild protest at your suggestion that the BSD action doesn’t usually need to be taken into account since the ridiculous Enterprise and Regulatory Reform Act 2013 section 69 was enacted. I have already suggested briefly on this list that there is at least an arguable case that part of that abolition of actions (as it relates to UK government bodies) may be in breach of EU obligations and invalid. And in any event there are areas other than the workplace where the BSD action is still alive and well.
Like section 1 of the Compensation Act 2006, I don't think these provisions do anything at all to the existing common law position for negligence. There are some theorists who argue that in determining negligence it is impermissible to look to whether the defendant's actions are of wider social benefit, but that has not been arguable as a proposition of positive law in my lifetime.The more difficult question is how these factors are to be taken into account (eg is it just a utilitarian cost/benefit exercise? A - No.). This Act, like the Compensation Act before it, says nothing about that.
One mystery is the reference to "breach of statutory duty". Historically, where an Act created a duty that was actionable by an individual, the question of whether liability depended upon proof of fault was determined by its construction. Usually as legislation makes no mention of fault, merely instructing people to do things ("fence off drilling machinery") proof of fault was unnecessary. However breach of statutory duty primarily applied in cases of health and safety at work regulations, and has been abolished in that context by the Enterprise and Regulatory Reform Act 2013 section 69. In practical terms, this Act therefore probably doesn't matter much.
One view is that its only consequence of SARAH is to create uncertainty, enabling unmeritorious arguments of the form Neil makes. Arguably however it serves the useful function of signalling to a judge where the merits lie. Anyone relying on the Act is so obviously desperate that alarm bells should ring.
It could have been worse. The NSW legislation creates a genuine immunity for foolish officious intermeddlers who, acting on a misguided good Samaritan impulse, injure strangers. We haven't had that.
Hopefully now that this government and the last have passed empty symbolic legislation like this to placate the Daily Mail that will satisfy beast. I doubt it though.R
From: Neil Foster [firstname.lastname@example.org]
Sent: 16 February 2015 05:46
Subject: ODG: SARAH Act 2015
Dear Colleagues;I would be very interested to know from UK colleagues whether there is any academic comment yet on the provisions of the Social Action, Responsibility and Heroism Act 2015 (UK, 2015 No 3) which I see received assent on 12 Feb 2015 (but has not yet commenced). See http://www.legislation.gov.uk/ukpga/2015/3/contents/enacted . This odd little Act purports to lay down "matters to which a court must have regard in determining a claim in negligence or breach of statutory duty” according to the long title, and provides
- In s 2, that the court must "have regard to 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";
- In s 3, that the court "must have regard to whether the person, in carrying out the activity in the course of which the alleged negligence or breach of statutory duty occurred, demonstrated a predominantly responsible approach towards protecting the safety or other interests of others”; and
- In s 4, that the court "must have regard to 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”.Basically I have now given you the whole Act. It seems fairly obvious that this is a piece of “theatre” designed to deal with issues raised by the popular press. I did have a very quick look (thanks to a heads-up from Frank Cranmer at http://www.lawandreligionuk.com/2015/02/15/religion-and-law-round-up-15th-february/ ) to the debate at Second Reading stage in the House of Lords where Lord Pannick QC makes some very amusing comments (including :
the Bill puts me in mind of what Basil Fawlty says of his wife Sybil in the celebrated television programme, “Fawlty Towers”. I hope that noble Lords will excuse this unparliamentary language. He said: “She should be a contestant on ‘Mastermind’. Special subject: the bleedin’ obvious”. )
But despite its obvious nature, and one would hope the courts would treat it in that way, there seem to be some traps. Take, just because we’ve recently noted it here, the swimming teacher case of Woodland. In an action against the swimming teacher, would they have a defence because teaching swimming is “for the benefit of society”? Suppose that most of the time they kept a proper lookout for the children, but on the day in question the lifeguard was careless. Can the company claim they were “predominantly responsible”?
The “Good Samaritan” provision in s 4 seems similar to the provisions introduced into NSW law with Part 8 of the Civil Liability Act 2002 (NSW), which as far as I am aware have never been used. S 57 provides an immunity (http://www5.austlii.edu.au/au/legis/nsw/consol_act/cla2002161/s57.html ) but then s 58 deals with some situations where the immunity ought not apply (eg the “good samaritan” was drunk or else caused the situation from which the rescue was needed), neither of which is discussed in s 4 of the SARAH Act.
neil fosterAssociate ProfessorNewcastle Law School
Faculty of Business and Law
T: +61 2 49217430
Further details: http://www.newcastle.edu.au/profile/neil-fosterMC177 (McMullin Building)
The University of Newcastle (UON)
Callaghan NSW 2308
CRICOS Provider 00109J