Social Action, Responsibility and Heroism Bill
The Committee consisted of the following Members:
Matthew Hamlyn, Committee Clerk
† attended the Committee
Matt Wrack, General Secretary of the Fire Brigades Union
Kevin Myers, Acting Chief Executive of the Health and Safety Executive
John Spencer, President of the Association of Personal Injury Lawyers
David Johnson, President of the Forum of Insurance Lawyers
Simon Dewsbury, Solicitor at Thompsons Solicitors
Stuart Henderson, Head of Personal Injury at Irwin Mitchell
Amanda Brown, Assistant General Secretary for Advice, Policy and Campaigns at the NUT
Tracey Harding, Head of Health and Safety at UNISON
Social Action, Responsibility and Heroism Bill
Examination of Witnesses
Q 2323 The Chair: We will now hear oral evidence from Kevin Myers, acting chief executive at the Health and Safety Executive, and Matt Wrack, general secretary of the Fire Brigades Union. Before calling the first Member to ask a question, I should like to remind all Members that questions should be limited to matters within the scope of the Bill and we must stick to the timings in the programme motion that the Committee has agreed. For this sitting we have until 2.45. Will the witnesses please introduce themselves for the record?
Q 24 Mr Andy Slaughter (Hammersmith) (Lab): In this morning’s session we heard from two witnesses who took different views as to whether the Bill was good or bad—if I can paraphrase them—but they agreed on one thing: the Bill addresses a perception rather than a reality. It is a perception that people may be subject to litigation if they volunteer or act heroically. What are your views on the problem that the Bill seeks to address, and does the Bill address it?
Matt Wrack: I am not sure what the problem is that the Bill seeks to address. It is somewhat unclear. The issue of heroism, for example, is something that we have to discuss in detail in the fire and rescue service. We have had discussions with other stakeholders in the service—with the Health and Safety Executive, for example—and it takes considerable effort to reach a conclusion as to what heroism actually is. To be honest, we find the Bill unnecessary and unclear in its intent.
Kevin Myers: It is not for me to comment on the first part of your question, because this is not a policy matter for HSE. We do not deal with civil matters. The Ministry of Justice deals with those. On the second point, I am not sure a debate about whether the Bill addresses a perception or a reality sheds much light on the matter. I have been in the Health and Safety Executive since the mid-70s, just after the Health and Safety at Work etc Act 1974 was enacted. There has been a growing awareness and a break in the apathy in respect of health and safety issues, but it would be delusional for me to say that there is not an issue about approaches to health and safety within our society. We will all
Kevin Myers: I am not keen on commenting. The Ministry of Justice has asked us whether we have a problem with the Bill. We do not think it impacts on our criminal enforcement responsibilities. In some respects it articulates some of the considerations we take into account in our enforcement role in terms of considering what is reasonable and practicable in given circumstances.
Matt Wrack: I have an understanding of what is meant. One of the strengths of the health and safety system and the Health and Safety at Work etc Act is that it is goal setting and risk based, so it covers lots of scenarios, as opposed to having prescriptive rules about what to do in certain situations. For some parts of society, that is straightforward. For other parts, such as the fire services and the police, their assessment of their risks needs to be dynamic. They need to take decisions in changing circumstances, and they might take decisions to do something to save somebody’s life that you would not take if you were doing that in a workshop or somewhere like that. I think that is the area that the Bill looks at in terms of heroism.
Kevin Myers: It does not bear on what we do, because it deals with civil rather than criminal matters. The activities of the fire brigades and the police are an issue. We have worked with them to develop guidance and understanding as to how we should interpret the Health and Safety at Work etc Act in the context of their business and what they do dynamically. There is broad stakeholder support for the guidance that we have developed in partnership with them to clarify those issues. So I do not see the Bill, which deals with civil matters, bearing on that at all.
“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 generally responsible approach towards protecting the safety or other interests of others.”
I am not entirely sure what that means. However, it seems to mean that in the case of health and safety at work, say, the court would be invited to look at the overall conduct of the employer, rather than the conduct in relation to the specific acts.
Matt Wrack: I think that is an important point. These are matters that are not abstract newspaper issues. These are real live issues that we deal with every week. We have cases currently where we are dealing with the fatalities of firefighters, and the matter of the behaviour of the employer is extremely important to the outcome of those cases. For us, the question of how an employer deals with those situations is not a matter of the general perception of their responsibility. For example, have they properly taken into account all the risks and conditions when they send firefighters to deal with situations? And have they planned properly for that? Firefighters are used to attending hazardous situations, whether it is fires or other incidents. They are happy to do that—that is their profession—but to do so requires planning, training, equipment and resources. As long as sufficiently trained firefighters attend an incident, we believe that we should be able to make proper decisions based on experience, technical expertise and so on, and that should minimise the risks. The question of the employer’s general responsibility therefore comes down to the specifics of how they have planned, prepared and resourced the particular incident.
Q 32 Mr Slaughter: Do you have any other concerns about the Bill? We were discussing clause 3 specifically; I think that the intention of clause 4 is to give additional protection to persons—I assume that that includes the emergency services—acting heroically, and your members act heroically every day. Do you think that that clause is necessary? What effect do you think it will have?
Matt Wrack: I think it is potentially a very dangerous clause. Throughout my career in it, the fire service has had a simple message for people. There is the question of what firefighters do in these situations and the question of what other people do in these situations. The fire and rescue service—or the fire brigade, as we used to call it—has for the past 20 or 30 years given very simple advice to people in the event of fire: get out, stay out and dial 999. That message is based on the best technical evidence and professional expertise available. We would not want to give to the public mixed messages about how they should respond in those sorts of situations. That is the experience of the fire service and it is a clear message. I would hope that central Government, for example, do not contradict that central message that firefighters have been giving for a long time.
The question of individuals acting heroically has been discussed quite a lot, both within the service generally and, for example, with the Health and Safety Executive. What one person might perceive as acting heroically can also be, in certain situations, reckless. Someone who acts in a certain way at a fire or other emergency might not only place themselves at risk, but because of their actions require other participants to take actions that put them at risk as well. For us it comes back to the question of professionalism, planning and properly resourcing incidents.
In terms of people outside the fire service, take the idea that someone walks past a fire, pushes the door open and goes in to try to save people from a fire. Firefighters are trained in how to deal with such situations and that there are specific risks related to that scenario. We can give examples of firefighters who have been killed in such circumstances because of the reaction of fire in certain situations when oxygen is introduced. For example, in 1996 two firefighters were killed in Blaina in south Wales. The fire service had to take a whole series of steps as a result of that and we learned lessons from it. I must say that we would not necessarily expect the public to have learned the same lessons that we have.
Q 33 Mr Slaughter: You anticipated my next question. This morning, we were hearing about volunteering. Voluntary organisations were saying that they hope that the Bill will encourage more people to get involved or stay involved in volunteering because they would be less worried about the consequences. By analogy, in your situation that would mean that members of the public might be more likely to get involved in a dangerous situation, and you think that that could place your members at risk.
Matt Wrack: Each case is clearly different. Very recently we had a case in Essex where two workmen intervened in a fire and had subsequently to be rescued by firefighters. They put themselves at further risk and potentially put firefighters at risk. It is complex. From our perspective there are differences between people who may wish to volunteer in other walks of life and the idea that that same approach could apply to the fire and rescue service. It is unique. Apart from some small parts of Scotland, we do no have volunteer firefighters in the UK. So it is recognised as a professional role. It takes a great deal of training and expertise to deal with fires and other emergencies safely and effectively.
Q 34 Stephen Metcalfe (South Basildon and East Thurrock) (Con): I want to pick up on a couple of points. Realistically the last thing on the mind of anyone acting in a heroic way by rushing in to save people trapped by a fire will be the contents of the Bill. So to conflate the two issues of whether someone will act heroically and the contents of the Bill is slightly misleading. However, it sends a signal that we touched on right at the beginning with you, Mr Myers, when you talked about the myth that has grown up around how health and safety works. The National Council for Voluntary Organisations told us earlier that people cite the consequences of things going wrong as a reason for not volunteering. The contents of the Bill remind them that
Kevin Myers: In terms of law, I am not sure, but anything that tries to add to the debunking, having conversations about this sort of issue is good. We set up a myth-busters challenge panel to try to get on the front foot in dealing with this. We invite people to write in to the myth-busters challenge panel to tell us about situations where they have been told that they must do something for health and safety reasons or they must not do it for health and safety reasons. More than 300 cases have been submitted to us. Very few have anything to do with health and safety. They are often excuses for poor customer service or anything like that. There are misapplications and misunderstandings, which are sometimes disingenuous and sometimes over-egged by the media. They know that they can get easy copy with another bonkers health and safety story. People are told that they cannot have a custard pie competition because of insurance reasons, they cannot take pets to a pet show and their children cannot use the toilet in a shoe shop. If they buy shoes in a shoe shop they are told they have to take the box away for health and safety reasons. You could not make them up. We are trying to do something about it. This issue is multifactorial. As I understand it, the Bill is designed to help to reinforce that message.
Q 35 Stephen Metcalfe: Mr Wrack, in one of your earlier answers you talked about your fear that this Bill would dilute protection for firefighters. Can you expand a little on why you think it would do that?
I used the example of a fire service where firefighters have been killed. Tomorrow, for example, is the 15th anniversary of another death of one of members, Paul Metcalf, who died in Bury in Greater Manchester attempting to rescue someone from open water. He had not been trained to do that. He did not have adequate equipment to do that. He did it, you might say heroically, and the fire and rescue service has had to learn many lessons from that.
It raises questions about how the employer should deal with situations like that. Should the employer put an individual into those circumstances and ask someone to effectively perform an impossible task for which they were not trained, resourced or equipped? Our concern is what is meant by
and how clearly Mr Metcalf was acting in such a way. Nobody is suggesting that he should have been criticised in any way, but criticisms could be levelled at the employer in such situations. If that becomes muddied in any way, the fire service will not improve. Unfortunately, the general way in which we have improved is by learning from tragedies over many years.
Matt Wrack: For us, addressing those pretty deep questions would need a great deal of thought. I am unsure whether that can be done by means of this Bill. As I said, we had dialogue with Lord Young at the time of his review of health and safety, and it was certainly reported that Lord Young had said that health and safety was so out of control that firefighters might refuse to respond to calls because they were concerned about their safety. By the way, there is no evidence that that has ever happened, and when we met Lord Young the picture that emerged was quite different. Part of the result of that was precisely the sort of discussion that various stakeholders within the fire and rescue service have had around such issues, including with the Health and Safety Executive. Our concern is that we do not see what is added by the Bill that is in front of us.
Q 37 Grahame M. Morris (Easington) (Lab): It is instructive to give some practical examples. I have been following the case surrounding the deaths of the two firefighters from the East Sussex fire and rescue brigade at Marlie farm and the compensation that has been denied to relatives of the firefighters who sadly lost their lives. Does the advice that the union has received from solicitors suggest that the Bill would improve that situation or make it worse?
Matt Wrack: I do not think that we have had any advice specifically on the question of the Bill in relation to that case, but our point is that it does nothing to improve that situation. We have a case in which two employees of the fire service were killed in a fireworks explosion and something like 18 other firefighters were seriously injured. Seven or eight years down the line, liability is being denied, despite an initial ruling in court that the employer was liable. That is pretty appalling. We would be interested in a dialogue with the Ministry of Justice or Ministers or whatever about how to avoid such horrific treatment of fire service employees, which is being fought tooth and nail by that employer. I do not see that the Bill does anything to improve the situation for those people. That is one of the frustrations.
Mr Myers referred to debunking some of the risks about health and safety and so on, and it was suggested that this might be one of the purposes of the Bill. For us, health and safety is a life and death matter, and we object strongly to people trivialising it and turning it into a joke or headline-grabbing stories. We deal with such matters every day of our working lives. We deal with the aftermaths of deaths and serious injuries, some of which go on for years and years. We would like a strengthening of protection for workers put into those positions by society, rather than anything that might possibly weaken it.
Examination of Witnesses
Q 38 The Chair: We will now hear oral evidence from John Spencer, president of the Association of Personal Injury Lawyers, David Johnson, president of the Forum of Insurance Lawyers, Simon Dewsbury, solicitor at Thompsons Solicitors, and Stuart Henderson, managing partner of personal injury, Irwin Mitchell. For this session, we have until 4 o’clock. Could the witnesses please introduce themselves, for the record?
Q 39 Chris Evans (Islwyn) (Lab/Co-op): Thanks for coming today. Mr Johnson, I see you are a Tottenham Hotspur fan. You look rather upbeat, considering. I was doing some research last night and I came across a case where somebody drowned because the emergency services could not make a decision to cut his leg off when he got stuck in a drain during floods. He drowned in front of them. I think that a lot of people remember that case. Do you think that an ordinary lay member of the public would be deterred from helping that man for fear of being sued, or do you think it is more to do with the emergency services, which have a duty of care to the public? Who is this Bill likely to help? Is it going to be the ordinary person on the street who acts on the spur of the moment, or will it be the emergency services? Who is it directed at?
David Johnson: On the wording there, potentially it has the ability to affect both. There is a particular problem with public perception and, with this Bill addressing heroism, but also acts of social responsibility, having looked at the case law, I think the social responsibility is the predominant point. If you look at some of the case law involved, there are some fairly extreme examples, where decisions by the courts—often fairly senior courts—about what does or does not constitute negligence are, to some extent, out of kilter with public perceptions of culpability. We see the cases in the Court of Appeal and the House of Lords, and the senior courts, reported and getting publicity, but I think that belies a lot of cases in the lower courts that do not necessarily get that publicity but have the same sort of problem. That then steers public perception.
It was interesting to hear the HSE representative talking about the myth-busting pages on their website. In the space of less than four years, there have been some 311 reported incidents on that website. He gave some comical examples about throwing custard pies, and that sort of thing, but there are examples of volunteer work being deterred; for example, people sweeping up glass from Saturday night revellers having their brooms and what have you taken away. There are examples of volunteers to hack back vegetation on public paths to maintain public gardens not being allowed to do so, and nursery school trips to allotments being banned. All of
It must be acknowledged that you have got to have rules and regulations to promote health and safety; that is not only sensible, but absolutely essential. However, that has to be balanced with preserving public freedoms that allow people to engage in that sort of socially beneficial activity. As things stand, I think that the balance is somewhat wrong. I can give examples of cases if you want me to do so.
Q 40 Chris Evans: The Bill will not fundamentally change the law. Would you say that kids have not been able to go on outings because of a lack of—I do not like using this word—common sense on behalf of the judges in the cases that you have mentioned, and that has had a detrimental effect on public perceptions through the media and other outlets?
David Johnson: The decisions often relate to very serious injuries, and we expect judges to sit there in a robotic sense, be entirely detached from that sort of thing and give very objective decisions. I do not think that that is an easy task, and I think that sometimes you get decisions that do not align with public perceptions of common sense. There was a case involving the Scout Association. A young lad playing a game in a scouting hall injured himself, and the Scout Association was found liable for that. In another case—a Scottish case—a golfer hit a bad shot, cried “fore”, and everyone ducked save for one person who turned round and looked for it. That individual was struck in the face and he succeeded in his personal injury claim. It is interesting that in such circumstances the individual gets sued and is found liable, and the club is found liable for not putting signs up around the golf course saying that if you hear the word “fore”, you should duck.
Such cases are out there. The golfer in question lost an eye. One has the impression sometimes that a severe injury like that perhaps drives an outcome that might not have come about if it was a more minor injury, but it has a big effect on society in the terms that we are talking about and also for the people involved. The golf course provides a facility for the public to use for recreation. Assuming it had insurance, the insurance premiums will undoubtedly go up as a result of the incident. The golfer was held 20% liable for an award that amounted to £400,000. I cannot say whether he was insured, but people looking at that sort of situation may feel deterred from getting involved in such activity if that is the consequence that can come out of it.
Q 41 Chris Evans: I play golf in a fashion. I have a massive six-inch drive. I would not say that hitting a golf ball is particularly heroic. You obviously have a lot of experience, and this is a question for all the panel. Is there a specific case that you can think of where someone has undertaken a heroic act and been sued?
John Spencer: No. I would refer back to the Second Reading in July, where Chris Grayling admitted that the Bill does not rewrite the law in detail or take away the discretion of the courts. It is not a Bill about changing the law; it is seeking to legislate for perception. In my view—I thought the evidence of the firefighter representative was extremely persuasive—this is a two-sided coin: one man’s heroic act is another man’s reckless act. Where do you draw the line? One could point to heroic motivation that is not accompanied by the necessary skill, training and care being incredibly dangerous to encourage. So I would say there is a case for education, but not legislation—you should not be legislating to deal with perception.
Stuart Henderson: May I add to that? That is also where we come from. There is no evidence whatever to suggest that the Bill will change public perception. If you want an historical example of that, just look at the Compensation Act 2006, which the public have no awareness of. It is drafted in virtually an identical format to the Bill, and the courts have largely ignored it. When they have considered it, it has made no difference to the outcome of the case. In some cases—my friend David mentioned this earlier—section 1 of the Act was considered. The scout case, for example, was considered in the Court of Appeal. But it was still felt that, despite the desirable nature of the activity, the defendants had fallen well below the standard expected of them.
So, for us also, time would perhaps be better spent on education and joint initiatives by key organisations to get the message out there. It was interesting to see in some of the papers that the Association of British Insurers had put together a laudable document called “Celebrate! An ABI guide to planning an event”, which gives much more reassurance to the general public than any legislation is likely to about people’s potential liabilities if they decide to volunteer.
David Johnson: I sympathise with some of the points made regarding the Compensation Act, but, fundamentally, it is the decisions of the courts and the publicity around those decisions that drives the behaviours in the public arena. There is a need to change the law in that respect. While you can educate people, if you do not change the law, you are still going to have the same outcomes, and you are still going to have instances where legal decisions are perceived to be out of kilter with the public perception of culpability and common sense.
To come back on your comment about the golf course not being heroic, I accept that there are two aspects to the Bill. In terms of heroic acts, I struggled to find many examples of members of the public being deterred from acting in a heroic way. I came across one anecdotal piece about someone attempting to sue a woman for breaking their ribs during heart massage, but I was not able to find anything beyond that. But the Bill covers socially beneficial activity. Is maintaining a golf course—I ask you this as a golfer—something people should be deterred from doing?
John Spencer: Other cases have been decided differently—a person hit by a cricket ball unsuccessfully claiming in terms of the injury in terms of a defence in terms of the social and public good. My point in raising that is that cases very much turn on their own facts. In fairness, the Minister understands that. He is not seeking
If we look at myth and reality, I point to Lord Dyson, Master of the Rolls, in his March 2013 lecture at the Holdsworth club on “Compensation culture: Fact or fantasy?”. I will not read out his speech, you will be relieved to hear, but he concluded that the compensation culture was fantasy, not fact—there is not a compensation culture, but there is a perception of it. My fear is that in trying to adjust one perception problem we create another. So we encourage recklessness, carelessness, lack of sufficient care for training and so on in aid of the laudable objectives set out in the Bill.
Q 42 Chris Evans: The more evidence I hear, the more there seems to be what I would like to describe as a fish that is very slippery to get hold of. We all know the scenarios that people get into, such as people drowning and someone diving in to save them, then the person might get sued, or the one about the heart massage, when someone’s ribs got broken, and there was trouble about that. Would you say that, even though the aims of the Bill are laudable and supportable—I do not think that anyone would disagree with what is in the Bill—what we are looking for are words that are not there? We have not actually got hold of that slippery fish, we have not nailed things down with the Bill. Would you say that?
mean? What does “acting heroically” mean? How do we distinguish that from reckless behaviour and so on? This has grown up over centuries—the law of negligence and breaches of various statutory duties. We should halt and pause carefully before passing legislation that rather clumsily interferes with that rather delicate balance, and it is a balance, between not encouraging people to be reckless on the one hand, while not discouraging them from acting heroically and to the benefit of society on the other.
David Johnson: I would concur with that in some respects, in that I do think that the wording is open to interpretation. It leaves an awful lot to judicial discretion. It is appropriate that we should leave some judicial discretion there, on account of the fact that we cannot legislate for every scenario, but it does run the risk that, with too many ambiguities, as I think there are at the moment, we effectively create a piece of legislation that will fall into disuse.
I come back to the point that there is a problem there that needs addressing. As John has quite rightly pointed out, he can quote a good number of cases in which common sense has prevailed, the leading case being the Tomlinson case, which you may have been told about, but the point is that those cases have often been taken
Stuart Henderson: The reality is, I am afraid, that new legislation just compounds this problem. Common law is pretty settled at the moment. We all know where we stand on this range of cases and what the common law is. The common law is flexible and fluid, and it develops. It is very fact-sensitive. If you introduce a new piece of legislation, all the lawyers around the country will be looking for opportunities to exploit that and to extend the interpretation of that law. David Johnson acts for insurance companies, which will be looking at how they can limit their liability with any new Act that comes in. What you have is another raft of litigation and developing law all the way up to the House of Lords when, at the moment, the law is reasonably settled.
Just on the social policy point, there is a concern. We all agree that we want to encourage volunteers and more people to commit. We definitely want to educate them about the risks if they do so, but there is also something about the signals that we send out to other communities. Is it right that we should be sending out a signal, for example, to parents whose children are going on a school trip that they are less well protected in law than if the family takes a holiday in Spain? Surely there must be parity there. Surely we do not want the negative social impact of parents saying, “Actually, we do not want to go on that trip, because we are not satisfied that we are sufficiently protected.” There is also a risk that the Bill sends a signal to voluntary organisations that health and safety is no longer as important as it was. We can send out mixed signals with this new legislation and, as I have said, the focus should be on education and working with key stakeholders.
Simon Dewsbury: It certainly should be. David mentioned other legislation going to the House of Lords. The Bill will mean that more cases go through litigation. There are too many things that are uncertain and too many untried definitions, and that is the sort of thing that leads to lawyers having to get judges to make decisions on new points of law. There are all sorts of points in the Bill that will make a significant difference to a number of cases.
In my view, clauses 2 and 4 are not likely to receive a lot of judicial attention, but clause 3, which is on responsibility, seems so widely and vaguely drafted that it will apply to a significant number of cases. Reading the press releases that have come out on that clause, it is apparently an attempt to reduce the perception of onerous
and it seems to me that the vast majority of those will be road traffic accidents. Does that mean that when someone is driving and has an accident for which they were negligent, the court has to take account of whether they have acted responsibly for the rest of that journey? Say someone runs a red light and therefore gains a couple of minutes. They are then in an accident a couple of miles down the road. They have not driven responsibly. At the moment, the courts will say that that does not make any difference. They will specifically say that that is a fallacy of proximity. Now, the courts will have to take that into account.
The corollary of that is that in all those cases, it is an extra area of evidence and of law. Certainly in more serious cases, we will see that if the courts have to take account of it, further evidence will have to be taken into account. People’s tachographs will have to be looked at in lorry accidents to check whether or not someone was speeding elsewhere in the journey. You could say that that might inculcate a much more responsible attitude in all motorists; you could say—I suspect other people would—that that was another example of a war on motorists.
It seems to us that the legislation is going to be relevant in all sorts of unforeseen areas. It is certainly going to come up in employment accidents, where employers will have to demonstrate a generally responsible attitude, or it could be taken into account against them. It works both ways. It is going to increase significantly the potential for evidence in every case. It is going to increase the amount of work in litigation, as well as its costs. It could well increase the length of trials because it would have so many unforeseen consequences.
John Spencer: The most important facts around accident numbers come from the Compensation Recovery Unit statistics, which show a 3% reduction in the number of accident claims between 2012-13 and 2013-14. Motor claims have gone down by 5.89%. So claims have gone down, not up.
The other point I would make with regard to the voluntary sector is that last year a Cabinet Office press release made it clear that the steps the Government had taken had increased voluntary activity. I see the Bill as an unnecessary encouragement, bearing in mind the highly successful community engagement that the Government have achieved, and also bearing in mind the background of a very real risk of opening the door to reckless behaviour and people taking insufficient care when acting heroically. You cannot legislate for perception because you start to create another perception and run into an equal and opposite error. The answer to perception problems is education or training, not legislation that seeks to address a problem that self-evidently does not exist in reality, but is believed to do so by the people who form our society.
Stuart Henderson: I agree with my colleagues that clause 3 is the most worrying clause. Sitting here as lawyers, I think we would all say that we see a Pandora’s box of investigation activity in trying to assess its effect on individual cases—
Q 43 Stephen Metcalfe: My question relates to clause 3. I want to go back to our golfer. I am struggling to see how he was held personally liable, so in my view something must have gone wrong. If he acted with responsibility, was not negligent and cried “Fore!”—the standard call on a golf course that people should know means a ball has gone awry—surely that example shows that something has gone wrong. Clause 3 states that the court must take into account whether someone
Surely the general approach there would have been yelling “Fore!” on a golf course. Would the golf course also not have been liable if the court had taken some account of clause 3? It strikes me that the measure would remind people that, since in that particular case neither had acted negligently in my view, people must take some degree of responsibility but cannot cover every single eventually.
I have to concur with what John said about the dangers of the vagaries of some of the Bill’s language, and what Stuart said about it creating courtroom battles and disputes over interpretation. Contrary to some of my colleagues, I feel that there is a definite need for the Bill. It is not sufficient to say that the law is fine as it is, because, as my examples show, there is a problem to be addressed. However, I concur that the language is not robust enough. In particular, the Compensation Act and the Bill both require the courts to “have regard to” the circumstances, whether they are socially beneficial activities, acts of heroism or whatever. As Stuart pointed out, in some of the cases I talked about, the Compensation Act was had regard to, but it had very little effect.
There is a need for the Bill. Parliament should give direction to the courts, which have got this far on common law, but the current position is unsatisfactory. It is appropriate that Parliament, as the legislator, gives direction, but the current language is not robust enough and gives rise to the possibility that the Bill, the intention behind which is worthy, will not have the desired effect when it is considered in courtrooms.
John Spencer: I part company with David in that I do not believe the present case law and the Compensation Act need amending. I can see an argument for amendment in terms of the public concerns about socially beneficial behaviours, and so on; that is a laudable objective. However, I am afraid that I do not agree with David, and nor does the Secretary of State, about changing the law. The Secretary of State does not seek to change the law; he seeks to address issues of perception and, if possible, encourage heroic and socially beneficial behaviours. I go back to what I have said several times: the answer to that is education and training, not legislation. If you accept what David says, which is that the law is wrong, fine. But until I heard David today, I had not heard that argument advanced by anyone.
David Johnson: Mr Grayling talked about sending a message to the courts, which is the worthy intention behind the Bill. A message is necessary, but the Bill must be more robustly worded than it currently is.
Simon Dewsbury: The problem is that most cases do not go to court, and very few cases go before a judge. The practical side of this is that it is going to cause enormous uncertainty in the law for both defendants and claimants. The practical effects will be significant well before it goes before a court. The trouble is that clause 3 takes away the connection between a negligent act and the standard of care. At the moment, you have to have a connection between the breach of duty and the causative act. In the Bill, as long as there is a generally responsible attitude, it can be something unrelated to the act.
At the moment, if somebody who has had an accident comes to me and says, “Mr Dewsbury, there is an awful health and safety culture at our factory. There are accidents all over the place,” I say, “That’s interesting, but I’m interested only in accidents that are just the same as yours, because those are the only ones that are relevant to things such as foreseeability.” If the Bill goes through, I shall say, “Right, I’ll pick up my pen. Tell me about them, because that means there’s a good chance we can show that this company does not have a generally good attitude to heath and safety.” If we can show that—we have been told that it is a strong message to the judges that the courts have to have regard to that—that may turn what was not a good case into a good case. The same will happen for defendants. They will be going back to the employers and saying, “We need as much information from you as possible about your generally responsible attitude, because the law says that you have to demonstrate it.” That is what the Bill says. Unforeseen consequences coming from that are going to make it very difficult for everybody, and that is before it gets to the judges.
David Johnson: I agree that some of the terminology needs clarification. There are vagaries in there that need to be addressed and will be argued over. The suggestion that there is going to be a significant or substantive increase in evidence before the courts, I do not believe to be the case. The suggestion that there will be an increased duration of trial length—I do not think that that is going to be the case. I am not sure that this has any substantial application in most RTA cases. There is a need for clarification, but I do not think that those sorts of problems are going to arise.
Stuart Henderson: The judiciary will say, I am sure, in relation to this Bill, as they have with the Compensation Act 2006, that all these issues are fully covered in the common law. It would be a shame for this Bill to go through and, after a flurry of litigious activity, just fall by the wayside like the Compensation Act—an Act that is there in the background but the judges continue, as they should, to apply the flexible principles of the common law.
That, it seems to me, is exactly the problem that the Bill is looking to address. In the scouting case that I talked about, even the judge Lord Justice Ward, who found the Scout Association liable, made the comment that his decision might be interpreted as:
The rhetorical question “Where do we draw the line?” is asked in one of those cases, and that is the question here. There must be a balance and there must be health and safety rules, but where do you draw the line between prohibitive rules and permitting people to get on and engage in socially beneficial day-to-day activities? It strikes me that Parliament is the body that ought to answer that question of where you draw the line.
Stuart Henderson: How does the Bill ultimately help judges to draw the line? That is the concern. At the moment, they draw the line based on the facts before them and the established principles of negligence. What the Bill asks them to do is to take issues into account, which they do in any event under the current law. I do not see how that solves my friend’s problem.
John Spencer: The point I was going to make is that the quotes that David gave from various judgments demonstrate, in my view, the different judicial opinion expressed from time to time in different cases, which is right and proper and determined by the facts of the case as well as by the judges themselves being drawn from our society. I do not see it as a plea from the judiciary, which I have not heard anywhere, for legislation in this area. Indeed, I think there has been very little support from those in the law for this Bill. Lord Faulks was notably silent, I thought, in the debate I read in Hansard, as someone well versed in defending personal injury cases and an eminent QC.
Q 44 Mr Slaughter: I will start with golf, which seems to be the topic for the afternoon. There are two points from what you say, Mr Johnson. I was slightly surprised that you classed a golf course as something that exists for the benefit of society. That suggests to me either that this could be a very subjective judgment or a very broad definition. It seems to me that almost anything could be for the benefit of society if that is the position, and therefore we are in pretty vague territory.
The second and perhaps more important point is that I am not completely clear—I think I am with your colleagues, but not with your view—whether this Bill seeks to alter the law as it stands. It sounds to me that you would like to alter the law as it stands and that you are in a minority in that respect. That is a credit to you in holding your own and you may want to say a bit more about what you would like to see, but the general consensus from legal and non-legal opinion so far—the Secretary of State himself has been quoted—is that this is an exhortation at best. Mr Henderson said it is something the judges are already taking account of, which is usually what they say when they mean ignore. This is the crucial point. If this is a change, it is a significant piece of legislation; if it is not, it is just a confusing piece of legislation, isn’t it?
Stuart Henderson: To come back to some of those points, I agree that there is a real problem with the language. My position is that this is a laudable Bill in
Q 45 Mr Slaughter: By redrafting, do you mean starting from scratch? Nobody here so far. I think the Law Society said this morning that it is unamendable. From your point of view, is it well intentioned but beyond redemption?
David Johnson: I think you could sit down and come up with better wording. Fundamentally, I think the intention of the Bill—I stand to be corrected on this—and what you are trying to achieve is that when determining what acts or omissions may be said to meet the definition of reasonableness and what acts or omissions would instead constitute negligence, the court will set the threshold of reasonableness at a lower level if what it is considering are acts that have social benefit or are acts of heroism.
David Johnson: My interpretation of the court having regard to the circumstances when determining issues of negligence is that it is implicit, as in the Compensation Act, that having regard means that it will take these things into account and that that will influence its decision. The question you asked demonstrates the vagaries of the wording that is there. If you substantially redrafted it, you could bring about what it is trying to create, but I think it would need an awful lot of work to achieve that.
Q 48 Mr Slaughter: So your answer to my second question is—well, let us leave the golfers aside for a moment and take something less ambiguous: the school trip with teachers giving up their time voluntarily, when a kid falls down a mountain and gets killed, or something of that kind.
Mr Slaughter: Let us take the example of clause 2, of a volunteer expedition where a child perhaps dies because they fall down a mountain. Should there be a lower standard in those cases, because there is a socially responsible action, than, say, if a similar thing happened in a commercial setting?
David Johnson: I think if you look at the case law, and Tomlinson in particular, and if you look at the way the cases read, the social benefit of the activity that is
David Johnson: I am sorry—common sense has been talked about, and its coming to prevail. I think that is what is the driver here, but I think it would require a very specific interpretation of this Bill by the courts in order to achieve that, and I think there are other interpretations that you can put on it that will be argued for, and thus as things stand I do not think you will achieve that result.
Stuart Henderson: As far as the settled common law is concerned, the case of Tomlinson was pretty clear about how the courts would approach these cases. They said that the balance must be drawn between the likelihood of injury, the seriousness of the injury, the social value of the activity which gave rise to the risk, and the cost of preventive measures. There are shifting sands of balance, depending on the facts of the case, that the court will bring to bear in considering the outcome in any common law case.
In a sense, the Act does not add anything at all to the well-established common law, because the social value of the activity is already considered in every case and is already a part of the substantive argument about the outcome that a case should derive. So we could talk about how we could improve this Bill, but it is quite difficult because, as I think you said earlier, Mr Slaughter, it pretty much, for most of its content, repeats an Act that is already in force. So we are going to have two pieces of statute, with lawyers arguing about the differences and which is more relevant to their case, and which should be the dominant piece of statute to determine the outcome of the case.
John Spencer: In my view the two goals are appropriate: one is to encourage socially beneficial activity, but equally and importantly, it has to be in an appropriately safe environment. None of us would want our children going on an unsafe school trip, any more than we would want them prevented from going on a school trip because of perceived lack of safety when in fact there was not a lack of safety. That is the balance that you have got. As was articulated earlier, the courts very carefully weigh up these factors when considering cases in all their facets. The trouble with this Bill is that it just focuses on one area of perception and it is for that reason that I think it is dangerous. It is dangerous because it could encourage unsafe—even reckless—behaviour, while seeking to encourage heroic behaviour, for instance. I think it is the wrong way to do it. As I keep saying, you educate, you do not legislate, when essentially the law is right.
Simon Dewsbury: I think John is right; there is so often a tension between two desirable outcomes. We look back at, say, the fire brigades. The sort of lifting and handling that they would be expected to do in a fire and emergency is quite different to what would be expected in any other environment. That is because of the context that they are saving people’s lives. In hospitals, the sort of lifting that would be done is very different,
Under the Bill, if that care assistant has not been trained but everybody else has been trained, does the employer have a “generally responsible” attitude? If so, does that alter the negligence? If there is no negligence there, you suddenly change from a duty to train everybody just to a duty to train most people. If the person who has not been trained has an accident, they will not be compensated for that. They have gone to work and been injured; they have not been trained and they are not going to get compensation.
Mr Ben Wallace (Wyre and Preston North) (Con): On your last point, you do not mention the consequence of not doing something. Let us say that the carer has not been trained but the consequence of leaving the lady to lie in her bed and not sit her up is that the old lady suffers another type of injury, or is much more uncomfortable. There is an awful Hobson’s choice in the real world where people live. They might say, “I have not been trained; you will just have to lie there and that might make you suffer in a different way.” That is what we are trying to send a message about.
There are two sides to a coin, as you rightly said. I know everyone should be trained but we are getting to a society in which things are layered and layered. I am an ex-soldier. The personal injury lobby on whether we should be able to sue if we are injured in battle is still not resolved. It is a mess that I do not think will be resolved for quite a long time. It is a very difficult area and heroism leads into all that as well.
We do not want people to be have-a-go heroes but we do not want them to feel artificially prevented from relieving suffering or trying to help, when there might not be any other choice. We do hear stories where people say, “I am not going to do that,” and unfortunately someone dies. I think we must all agree that that is a problem. Do you agree?
Simon Dewsbury: No, I do not think so. In the example of the person who is receiving the lifting training and handling, I suspect that more accidents occur where the person who is being lifted is injured due to lack of training than not. The classic unsafe lift is the Australian lift, which was dangerous to carers and those cared for. The issue is to ensure that everybody is trained. If there is a lower level of standard of care, so that it is deemed that most people being trained is adequate, that is going to lead to more risks in that situation for the carers and those being cared for. Those are very complicated situations, which I do not think this Bill would help in any event.
You mentioned the Army. There would be a real problem for the Army with this Bill. If a soldier or a non-military employee of the Army sues, the Army is
Stuart Henderson: Going back to your real-world scenario and the untrained nurse, again I come back to whether this Act is going to cause that nurse to think, “I’ll have a go. I might not be trained, but I am going to try and move this patient”, and what consequences that might lead to. It is one of these situations in which one needs to be careful about what messages one is sending, so that you do not create a new problem and a new injury that would not otherwise happen.
Mr Wallace: Let me give you an example. An elderly grandmother has fluid on the lung. The grandmother has to sit up every few hours, otherwise the lung fills with fluid. For whatever reason, you are stuck in a traffic jam and ring your neighbour and say, “Could you just go and sit my mother up, please?”, and the neighbour goes next door and sits the elderly mother up, because if she does not the lung will fill with fluid and become uncomfortable. That person is not a nurse or a carer. If, in lifting up the elderly mother, the neighbour suffers an injury, are we really going to say, “Well, she wasn’t trained and you unreasonably asked her to do it, therefore she would be eligible for compensation”?
Stuart Henderson: My response to that is, first, I do not think any action would be brought in such circumstances and, if it was, it would probably fail. The follow-on point from that is, what difference would it make to have this Bill in place, which most of the general public are not going to know about? Probably, not much.
David Johnson: Knowing about the Bill is not the issue. If you ask the man on the street what has created the current status quo in respect of health and safety, he is not going to give you a list of statutes, nor is he going to give you a list of cases. He is going to read about judicial decisions in the press, and that is what governs people’s perceptions of health and safety, and how they govern their behaviour accordingly. The fact is, the Act is intending to change the law, the way the courts interpret the law, the outcome of these types of cases and, therefore, the press coverage they receive and the public perception of health and safety off the back of that.
Looking at the way the Compensation Act 2006, for example, has been considered in these cases, the requirement to have regard to whether the activities were socially desirable activities has not led to the sweeping away of all other considerations. This is something that is considered alongside the general law. I think it is the same with responsibility. Although the courts may have regard to whether somebody has acted responsibly or not, that is not going to become the sole focus of their attention and all other acts and aspects of negligence will not suddenly be swept away.
I want to challenge you, Mr Spencer, on your consistent line that the way to reduce the growth of the compensation culture is through education, not through legislation. You have said that quite a number of times. I sat through the Legal Aid Bill and the Jackson reforms and everything else. We heard from the personal injury lawyers and the associations that our legislative changes would not make a difference. Getting rid of referral fees and the changes to success fees were all unnecessary, and they would not make a difference. I suggest that that legislation helped overnight. The drop of 5.8% in insurance and other claims is, I suggest, directly related to those legislative changes and helped to change the way people come forward and the culture of compensation.
I do not think it should be left just to education. I would challenge the assertion that we do not have a compensation culture. We only have to look at the whiplash claims compared with the rest of Europe to see that there is something wrong with our system. We are all driving European-standard cars but we have an astronomical level compared with everyone else. The law is always involved in trying to shape or have regard to, in this case, a message of what we want in our society. That is what the Bill is trying to do. It is trying to send a message to challenge the perceptions and to ask our judges to have regard to this. You have made plenty of valid points about definition and everything else, and no doubt the parliamentary process will look at that. But we have to have a role in that.
John Spencer: I think I would accept that the Jackson reforms played a part in the reduction in the number of claims which I referred to earlier and you reiterated. The distinction, however, is that we were dealing there with recoverability of costs. We were dealing with the quantum of costs in terms of fixed fees and so on. There are real issues to grapple with such as proportionality and so on. Here we are dealing with a delicate balance. I agree the Bill has a laudable objective—encouraging people to act for the benefit of society without fear of reprisal and to act heroically if the circumstances demand it. On the other hand, I go back to the firefighter representative who gave evidence earlier: there is an equal and opposite and vitally important aspect, which is to do so not in a framework of overbearing bureaucracy but carefully, knowledgeably and according to the circumstances of each case.
My fear is that by emphasising one without the other you interfere with that balance and it is for that reason that I advocate education, not legislation. We are dealing with a different issue which is carefully nuanced and has developed over the years through cases that, by and
My other concern is about removing protection from volunteers. We all want to see volunteers. We all want to see socially good behaviour. But if it means that our child is subject to an unvetted coaching regime at a local club because it has been decided that that is generally socially beneficial and there is corner cutting in criminal record checks—
John Spencer: But the legislation as drafted would enable someone to say that they had adopted a generally responsible approach and that they were acting for the benefit of society and that it was not seen as necessary to carry out checks on the safety of those subject to their voluntary activities. I think that there is a danger and we should be careful before—
Q 50 Mr Wallace: May I just correct you on that? From my memory of the legislation, it requires people working with young people to have certain levels of checks. They would not be exempted by this legislation. If you did not do that, you would be guilty of a breach of that legislation.
John Spencer: I agree that there could not be a complete disregard, but there could be corner cutting with regard to the vetting of suitability of volunteers, which could put vulnerable people, particularly children, at risk.
Q 51 Mr Wallace: I am sorry, but on that example, the legislation is very explicit about who should and should not be checked and at what levels. Having general regard does not allow you to avoid your obligation under other legislation. You cannot just say—
John Spencer: I agree with that. I am just giving an example in which there is undesirable corner cutting or a lack of sufficient vetting. I accept that probably the example that I have given is too extreme, for the reasons that you are stating, but one can see that appropriate vetting, appropriate care and appropriate training are good things. What is not a good thing is overbearing activity in any of those areas; we would all want to discourage that. It is a balance, and what troubles me is that the Bill does not strike that balance in looking only at one angle—the encouragement to volunteer and other socially beneficial activity—with disregard for some of the areas of concern about safety.
Q 52 Mr Wallace: This question is to anyone on the panel. Do you think that there is a place in today’s society for amateurism? Is it the case that everyone has to be professionally qualified or professionally trained, or nothing? A lot of volunteers do things in an amateur way—they do not have the time to do all the courses—for the benefit of their society.
David Johnson: I think that goes to the point. John has talked about interfering with the balance. I think there is an imbalance and we demand too much in terms of these standards. It is right to interfere with the balance, because it is not rightly achieved at the moment.
Simon Dewsbury: May I make two points? First, you made a point about the letters that your constituents receive that make allegations. I think the result of the Bill will not be fewer letters. There will be just the same number of letters, but they will contain an extra allegation: “You have failed to demonstrate a generally responsible attitude to health and safety. Please provide all these extra documents as a result.” I think that that will be the practical, on-the-doorstep, on-the-ground effect, as opposed to the general, “Well, maybe if we put this through, there will be a perception, and maybe somehow there will be a few different cases, which somehow will not be reported as irresponsibly by the media, and that will make a difference.” You look at the boots-on-the-ground effect as opposed to the perception, and the two seem to me to be quite different.
Stuart Henderson: May I give a specific example in relation to your amateur point, which may help? A few years ago, I ran a case for a 19-year-old who had suffered a severe spinal cord injury in a colts rugby game. It was an amateur game, but amateur referees receive a certain amount of training and are expected to deliver against certain standards. The crux of the case was whether the referee had said in that game “Touch, pause, engage” at a scrum. The defendants conceded that even though it was an amateur referee, that was expected. It was not the standard of an international referee, but a standard that followed the basic rules of the game. Some of the witnesses said he had said it, and some of the witnesses said he had not. There was no dispute about the fact that a reasonable standard of care is expected from amateur engagement as well as professional engagement. That case ultimately failed, on the basis that the judge preferred the evidence of the witnesses who said he had said it. As personal injury lawyers, we are often put in a situation in which people have suffered the most severe injuries and we have a duty to explore whether there is a right of action that they can pursue. It is not the case that if you are performing a task in an amateur situation, in effect anything goes. There are still rules.
Q 53 David Rutley (Macclesfield) (Con): I am not sure whether you heard the witnesses this morning, but we heard from the National Council for Voluntary Organisations, which represents thousands of often small charities that are struggling to recruit people to lead young people or other groups who need support. I do not hear too much demand from the group except for Mr Johnson, who suggested that there should be some change to the law or at least some clarification. Given the scale of the challenge, however, how would you respond to the charge that most of you sound particularly complacent about the current situation?
John Spencer: I do not think that it does in the sense that I in particular have supported the laudable aims of the Bill. I just pointed out that there may be some unintended consequences from the legislation.
I was going to say that the voluntary sector evidence is, as I understand it, from a 2006 survey of 300 people, 47% of whom were not currently volunteering and felt that the worry about risk liability was a reason for not volunteering. More recently, a Cabinet Office press release said last year that the voluntary sector was thriving under this Government, which I find encouraging. I am not saying that more could not be done, but I am saying that it must not be done at the risk of safety of other members of the public. That is my concern. Voluntary activity is a good, socially beneficial activity and we all want more of it, but it must not in any sense come at the cost of care and safe environments for people affected by those activities. If that is complacency, I am complacent as charged, but that is how I would see it.
Stuart Henderson: All of us on the panel are saying that there is a multifaceted approach outside the legislation that could considerably assist with the perception of either a compensation culture or that there is some risk attached to volunteering. David spoke earlier about people getting that perception from the media. Compensation stories are often misreported with hyperbole and the important essence of why a judge found in favour of a particular claimant is missing. Our view is that a multi-agency approach with all stakeholders involved, using education and working with the media, to seek to change that perception is a much more effective way of increasing further the level of volunteering in the community.
Q 55 David Rutley: On a number of occasions when giving evidence, Mr Henderson, you have suggested that the law is settled, as if that is a good thing, despite the fact that huge amounts of money and resources have gone into training and education. I do not have the figures in front of me, but all of us know from our experience in business and elsewhere that that funding has increased dramatically, but the problems still exist, as recognised by the voluntary sector. Is it not now time to give a further push, through the law, to help as part of that multi-faceted strategy about which you talk? I do not think that a settled law is a good enough reason to keep things as they are when there are clear challenges outside.
Stuart Henderson: I agree with you, but the settled law fully takes into account the issues that are in the Bill. The cases involving voluntary organisations are few and far between and judges take a very considered view of such cases and of whether they will find in favour of the claimant or the defendant. There is certainly considerable advantage to settled law, and to not unsettling it and making things uncertain for a period of time. My view is that the Bill is not really going to advance the cause of increased volunteering in the future.
Simon Dewsbury: These are not frequent cases. Going back, they stand out. These are not cases from this year normally; these are cases that go back. For example, we referred to the cricket ball case, and I think it was Lord
John Spencer: You have a point. We need to encourage voluntary activity out there further. In terms of how frequent or infrequent these cases are, we only really see the reported cases—I do not necessarily mean media-reported, but reported in the legal books and volumes around this—and we should listen to the NCVO regarding how frequent theses cases are and how big a problem this is for them.
Q 56 Mr Slaughter: I have a few quick questions on wording. We were talking mainly about negligence cases. The Bill deals with negligence or breach of statutory duty. Do you see any distinction that should be made between the way it approaches negligence and statutory duty, in particular in the light of the fact that there has already been restriction through the Enterprise and Regulatory Reform Act 2013 in the way that statutory duty is dealt with in terms of compensation?
Simon Dewsbury: I do not see so at the moment. Section 69 of the enterprise Act, which removed the right to sue for breach of statutory duty, means that it will be negligence, although statutory duty and whether there is an act will feed into the standard of care.
John Spencer: There was not under section 1 of the Compensation Act 2006, which is perhaps some indication that it would apply equally to both. I appreciate that we have had the enterprise Act since, which makes the Bill a little bit more dangerous than it might otherwise be, but—
John Spencer: Because it encourages things. In my view, a breach of regulation should be actionable if someone is injured as a result, rather than going back to the law of negligence and having to prove that against the employer in such a scenario. It is regrettable that we took ourselves back to the Victorian era through that Act, by removing that requirement that breach of regulation is an actionable breach of statutory duty. However, I cannot think of an argument of why one would apply the Bill to, say, negligence and not to statutory duty cases.
David Johnson: There will still be the odd case with infants or where the standard three-year limitation, for reasons of capacity or age, does not apply. There may
Q 58 Mr Slaughter: You mentioned the Compensation Act 2006. Do you see any distinction between what is said in clause 2 on “benefit of society” and what is said on “desirable activity” in the 2006 Act?
It would be sensible if the Bill proceeded from here to marry the two statutes, rather than introducing different wording. That would ensure that there is some precision over the Bill. The wording is different, so one would presume that it means something slightly different, but I am not sure what that difference is.
Stuart Henderson: Lawyers will seek to exploit any difference in wording, but the effect of the content of the Bill is pretty much the same as that of the 2006 Act, apart from clause 3. Sir Edward Garnier said:
Q 60 Mr Slaughter: I think we have had a good go at clause 3. Is there anything else that you want to add generally on a responsible approach? I share your concerns about the doors that clause 3 opens. If there is nothing more on that, I want to ask one further question on clause 4. The clause does not contain a definition of “acting heroically”. Do you understand what is meant by that term?
Q 61 The Parliamentary Under-Secretary of State for Justice (Mr Shailesh Vara): Mr Henderson, when my colleague, Mr Wallace, gave the example of the grandmother and the neighbour going to help her out, you were quite firm that that was something that would not be prosecuted, but that, of course, is not for you to decide as a lawyer; that is for others to decide, and they may take a different view. Mr Dewsbury, you gave the example of the traffic lights, where someone went through red lights and there
Throughout this session, all of you most of the time have come to a definitive decision as to what a judge would say or do in a particular case, without specifically saying that the judge would decide such and such. You have given examples and said, “This is the example and this is what the consequence would be,” but it is not for you to decide what the consequence will be; it is for the judge to decide. It is important to recognise that the Bill does not tell the judge what to decide. It merely asks the court to take into account certain factors. It is for the court to decide, and I put it to you all that each case will be different. I come back to the traffic light example, which is quite a contrast.
Simon Dewsbury: That is exactly the point. You say that the judge would come to a decision, and one would expect that in identical circumstances each judge should come to the same decision. There is judicial variation, but let us take that as read. The trouble is that, in an identical situation—
Simon Dewsbury: Yes, but there could be, for example, an accident. To go back to the care assistant and the lack of training, in that case there is no training and there is a finding of negligence. There could be exactly identical circumstances of the accident itself, but, because we now have to look at all the circumstances, those are infinitely variable, and in the case where there is a generally responsible approach, an identical case against one employer where exactly the same scenario occurs will result in a finding of negligence. In another one, where there is a background of a generally responsible approach, it will result in a different finding, so I think there is uncertainty there. The judges will be making different decisions in different cases. Instead of the
Q 66 Mr Vara: Mr Dewsbury, I am still not clear whether you were speaking hypothetically or really, but I am speaking in the real world. You said that it would be for the judge to decide on the facts, and that is what the Bill says. It is not directing the court to come to any specific decision. Again, you are saying that a court may do this and a court may do that. It may, but it is for the judge to decide. That is why we have the appeal process and so on.
Q 67 Mr Vara: The critical thing is to recognise that although everybody has been conclusive with all the examples they have given, it is not for you to decide what the conclusion would be. It is for the courts to decide. The reading of this in Hansard will show that people are being unnecessarily presumptive. They are presuming what a judge would do, but I for one have full confidence in our judiciary. I am sorry that some of you have indicated that you do not have confidence, or at least you given that impression.
David Johnson: I think you are right. It is absolutely right that you leave to judicial discretion the ability to apply this in individual cases, and not to be constrained into making the wrong decision. My only concern is that in merely requiring the court to “have regard to” these issues, the Bill does not go far enough, and that you are at risk of requiring so little of the courts that it will have only a minimal effect. Comparisons have been drawn with section 1 of the Compensation Act, and I think that just as that Act has not been groundbreaking in its effect, the Bill in its current form runs the risk of falling into the same trap.
Stuart Henderson: I hope that the theme of my comments has been that I fully trust the judiciary to deal with this and to take these issues into account, which they did before the Compensation Act and which they have done since the Compensation Act. The theme of my comments is that the judiciary do not need a secondary, very similar statutory prompt to deliver what they are already delivering on these cases.
John Spencer: I would also challenge the idea that the thrust of what I have been saying is a lack of confidence in the judiciary. I think it is the exact reverse. I have been saying that it is a balance of many factors where a judge makes a decision. The concern I have over the Bill is not so much over clauses 2 and 4, which, as has been said several times, do not really change the law that much. The points on clause 3, to introduce a new concept of looking at a demonstrably generally responsible approach in addition, is something new, and Simon has made those points quite strongly. My real fear is to encourage irresponsible or reckless behaviour while encouraging laudable voluntary acts that are socially beneficial. That is my concern. It is not about a distrust of the judiciary.
Examination of Witnesses
Q 69 The Chair: We will now hear evidence from Amanda Brown, the assistant general secretary for advice, policy and campaigns at the National Union of Teachers, and Tracey Harding, head of health and safety at Unison. For this sitting, we have until 4.30 pm. Could the witnesses please introduce themselves for the record?
Amanda Brown: I am Amanda Brown, assistant general secretary for advice, policy and campaigns at the NUT. We have around 350,000 members, who are qualified teachers working both in schools and in colleges.
Q 70 Pat Glass (North West Durham) (Lab): Amanda and Tracey, before coming here in 2010, I spent 25 years working in education in schools and local authorities, regionally, nationally and all over the country. I have yet to come across a case of a teacher or a support assistant failing to intervene when a child was in an emergency situation. In non-emergency situations, I know that there can be concerns, but in my experience good risk assessment, good medical and psychological advice and training generally mean that staff feel quite happy about intervening, whether it is administering drugs or physical restraint. Have I been asleep on the job, or is there a desperate need out there that I am not aware of?
Tracey Harding: A need for this legislation, you mean? In those circumstances, I do not believe that there is. My concern with the Bill is whether it will cover employees in the workplace as well as in the public domain. For instance, our members regularly, as part of their job, do things that are for social benefit or could be classed as acting in an emergency or heroically. Will the Bill affect them while they are doing their work in an occupational capacity? If it does, that may have some unintended consequences for them and their liability or how their liability is perceived.
Tracey Harding: For instance, we have paramedics as part of our membership. If a paramedic were to give cardiopulmonary resuscitation to a member of the public and accidentally broke their rib while doing that—as it happens, that is not unusual—and the patient felt that they needed to sue because of that, at the moment they would sue the employer. That person would be covered under vicarious liability with their employer taking responsibility for their acts at work. With the Bill in place, an employer could say, as I believe someone said earlier, “We trained everyone but this person may have missed the training and we have generally shown a good approach to health and safety so we do not take responsibility.” Does that liability now stand with that paramedic?
Tracey Harding: I think it could impact on the paramedic, the teaching assistant and the sports recreation assistant all in similar ways if they have to intervene in an emergency. What happens if everyone is trained, but they missed that training and would not allow an emergency situation to go on without intervention and something goes wrong? Can that employer say that they had a generally good approach to health and safety and therefore that negates their liability so that it falls on the person who is doing that job?
Amanda Brown: I would agree broadly with what Tracey is saying. We certainly do not see that there is any reluctance on the part of teachers, particularly in emergency situations. Of course, people go into teaching because they want to participate in the public good and education for that purpose and to assist and help with the development of children and their education. Obviously, if there is an emergency, people’s immediate response is to react, to help and to try to protect the children in their care. In a less emergency situation people have a bit of an opportunity to think about it and to consider it, we can imagine that there might be some of those, but again that is not the driver for people in those occupations. They want to do the best for children and young people in their care and they will try to respond.
What they do look for, as Tracey said, is good training, and good discussion in advance with employers about the sorts of situations that might arise and how to avoid them. Our main thrust in terms of health and safety, problems at work and health and safety at work is to do all we can to assist employers to make sure their workplaces are safe. You can never remove all risk, but you can consider the likely foreseeable reasonable risks and do what you can to avoid them. That comes from discussion between people on the ground doing the work and those who have the management of that.
Q 74 Pat Glass: It is not my area of expertise, but I have a perception that over the years there are fewer outdoor activities and that teachers take children away less than they did. How much of that is to do with concerns about being sued, and how much is to do just with general work load? That used to contribute to promotion, but not any longer.
Amanda Brown: We very much support out-of-school activities, school trips and adventurous activities—again, as long as the risks are assessed and there is some sort of proper but not overbearing avoidance of risk. We very much support that. I think there probably has been some reduction in the amount of adventurous and out-of-school activities. School trips can be anything from a week away to primary schoolchildren walking up the road to the library or swimming pool. It covers a vast number of different types of situation. It is not our experience that the reduction has to do with risk. It has more to do with other things: cost, resourcing, the availability of staff to undertake those activities.
Q 75 Mr Wallace: Thank you for coming today. Can I use the point about care in the hospital and the paramedic, or perhaps even a less highly trained individual? Paramedics, as you know, are incredibly highly trained. If you were sitting in the room, you may have heard the example of
That is the problem. Human beings do not all say, “I haven’t got all my boxes ticked; I’m going to stand aside. I’m not going to intervene in a fight in a school, because I haven’t done the course on separating children in a fight.” People do that. By not doing something, they could cause something, and by doing something, they might hurt themselves, but often people do not put themselves before other people, especially in distress. Do you not think that the Bill, in that sense, gives them a defence and not just the employer? Your worry is that the employer will sidestep their employer liability, but if you accept that sidestep, based on this Bill, a similar defence is available for your member. Do you see what I mean? It could also protect your member individually.
Q 76 Mr Wallace: In the example that you used of the paramedic, the paramedic could say to the court, “Could you have regard to the fact that I am doing it under clause 2, ‘Social action’, to benefit society and people, or that I was generally responsible? I have done my training. I have done as much training as I could do, sometimes. I haven’t done everything. I am not perfect, but no one in court ever is perfect.” That defence will be available for an individual as well as an employer.
Tracey Harding: But at the moment, the individual does not have to go through that litigation themselves. It would go to their employer in the first instance. So, although it is slight support for them if it were to get to that point, at the moment, they do not need to think in those terms; they need to think, “This is my job, this is what I need to do. If something unfortunately goes wrong while I am doing my job and I am doing it to the best of my ability, I will not be the person in the dock at that point in time; it will be my employer. If my employer feels that I have done less than I should have done, they will take internal action towards me.” At the moment, that person does not need to think about being in court.
Amanda Brown: Just to add to that, we have had a very small number of cases where pupils or parents have decided to try to take legal action against the employer, and perhaps also against the individual, but it is a very small number. But we have also found that the current law has protected them equally, so there has been no issue about that. Because all the circumstances had been taken into account by the judiciary and the courts, liability has been covered already within existing law.
Q 77 Mr Wallace: On that point, maybe I can get a note or some clarification for the Committee. I am not sure that being employed by someone automatically removes them from their own liabilities. It is not a default setting that they are exempt from negligence just because they work for somebody, or maybe they are.
Tracey Harding: No, you do not have that. However, you would not be the first port of call. If you are doing this activity in the line of your work duty it would default to your employer and then work its way back to you, if that were the case.
Q 79 Mr Slaughter: I am intrigued by your answers so far, because I think the Government may say that your members are exactly the sort of people this Bill is designed to help. If you are engaged in teaching or voluntary activities outside school hours, or indeed in the course of ordinary employment, that should be more taken into consideration, as a consequence of the Bill. You seem to be saying that you are concerned that it will create a less safe environment in the workplace or outside. Could you tell us more about that?
Tracey Harding: I think it would be a more confusing state as opposed to a less safe one. I do not believe that it would possibly change the actions of people in emergencies. However, the consequences of those actions would be more confusing for them. They really do not know, if they intervene in that capacity in their working role, whether it is going to end up on their head. At the moment they have some level of protection inasmuch that they are in their working role. If something happens by accident—not deliberate negligence—they will not be the first person who is called to answer to that. It would be the employers and they would need to answer to their employers as to why they did what they did.
Amanda Brown: I agree with that completely. In addition, when I first looked at the Bill—and I am by background a lawyer, though an employment lawyer not a personal injury one—I was not clear what this was intended to achieve or how it would do it. There is also the wording. I came in just at the end of the previous session and I agree that the wording is very vague. One particular thing that concerns me is in clause 2, the social action clause. It is not clear about the link between the injury or activity that happens and the notion of somebody acting for the benefit of society.
I would be concerned in an employer’s liability situation that, if a teacher falls over or hurts themselves because there is a pothole in the playground, the school could say that it is acting for the benefit of society, therefore it is no longer liable for an injury in which it has been negligent. That is the concern; that there would be a lot of confusion about the legal situation and different arguments about what the benefit to society or any of its members means.
There is also the situation I mentioned before of a parent or in another situation—not employer’s liability—somebody suing a local authority school and perhaps a teacher, where there would be confusion about how the different clauses might apply to a hero teacher and a local authority or school that might be seen to be acting for the benefit of society. There could be a tension there and that would need some looking into. It became more unclear the more I thought about it, which meant it
Q 80 Mr Slaughter: So it is not that you think this will put less responsibility. I was asking, “Do you think this would put less responsibility on your members and, if it did, would that be good or bad?” You seem to be saying that you are just not sure what the effect of it will be.
Tracey Harding: We are just not sure what it is going to do. If it does—obviously, if the Bill goes through and it applies to our members when they are in the work situation—could that be a point at which it puts people off doing the kinds of jobs that they do, which are generally looked at as to the benefit of the social good? We work as teaching assistantss, police community support officers, paramedics, in general service and not particularly highly paid, and now they would be in a position where this Bill could make them more confused. If you wanted to become a paramedic and do something for the social good, but thought, “If I hurt someone while saving their life and I could be sued, do I want to take that risk?”
Amanda Brown: Sorry to butt in again, but in addition to that, in the employer’s liability situation, if somebody who is employed in the public sector thinks that their employer might have an additional defence because they were acting in the public good and for the public benefit, does that mean that those who are in the public sector, who we want to encourage to join the public sector and work for the public good, are going to be put off because they think that they will be more vulnerable than somebody in the public sector, if they were to get injured, because their employer will have an additional defence.
Q 81 David Rutley: Thanks for coming along today and particularly for giving your thoughts on the impact this will have on employees. I do not have the same experience of work in schools as the hon. Member for North West Durham has, which is clearly quite extensive, but I was taken by the evidence given by the NCVO and the impact that current environment has on volunteering. That was mentioned in other evidence sessions. As a parent with four kids, I am also cognisant of the fact that parents play a huge role in facilitating activities outside of school, including some of the trips that we talked about. Are you seeing any evidence of the engagement of parents on the decline, perhaps by primary school or by secondary school, in light of the culture that we find outside? The NCVOs clearly are and I wondered whether that was true across schools.
Amanda Brown: It is fair to say that we have not looked into that, specifically, but I have not heard any anecdotal evidence of that. We have heard—what was also mentioned earlier—about the safeguarding aspects, and we have heard that some parents might feel slightly put off by having lots of forms to fill in on safeguarding issues. However, I have not had any notifications of any kind about people being worried about risk and those sorts of things.
Q 83 Mr Wallace: I would just like to clarify both your assertions about why you think it makes your members more vulnerable, not less. Are you saying that this Bill removes from employers—your view—their responsibilities and is more likely to put it on the individual members and it is for that reason they might be deterred? Is that what you are saying?
Tracey Harding: I do not believe it removes it, but it may give the perception that their duty of care is lessened and, in turn, give that perception to the people who are working there that they become more vulnerable, because the perception would be that the employer’s duty of care is lessened.
Amanda Brown: I agree, and I think that it will give opportunities for all sorts of arguments about what those clauses mean. Therefore there will be the danger of more litigation about it—more threats of litigation about it. I do not think it changes the position much, on the face Bill, but I do think that it could give the perception. People will assume that it is intended to do something, which presumably would be something along those lines. Again, the Compensation Act was mentioned, and people will assume that it is intended to do something different to that.
Q 84 Pat Glass: Can I clarify the current position? You talked about vicarious liability of the employer. My understanding is that if an employee does precisely what they have been trained for, and what fits in with the employer’s policies and a child gets injured, then the employee is covered by the employer’s vicarious liability insurance. But if the employee steps outside of that and does something that would not be covered by the policy of the authority or the school, or if they do something that they have not been trained to do, it would necessarily open up the employee to being sued. That is the current position. Is that right?
Q 85 Pat Glass: Right. On the subject of Mr Wallace’s old lady, I was involved with the case of a child who had breathing difficulties and brittle bones. The child needed exercise to clear the lungs, but by giving the child exercise bones were very likely to be broken, and were broken. In that situation, the tipping point is the medical advice that says, “On balance, you must give the child exercise, knowing that bones will be broken.” Employees are covered in that kind of situation, but if the employee does something that does not fit in with that, they would open themselves up. What is there in the Bill that will change that?
Amanda Brown: I have a slightly different view on the last question. If an employee deliberately and clearly acts against the instructions, advice, et cetera, that they have been given by their employer, the employer might well say, “We are not responsible. We’ve done all we possibly could.” In my experience, things are not normally that clear. There are normally shades of grey between doing what you are instructed to do. There are all sorts of things. Was the training sufficient? Was it given? Had the situation ever been talked about? Situations sometimes arise that have not been talked about.
I do not agree that it is quite as clear-cut as you express, although perhaps you did not intend it in that way. I do not think the Bill particularly changes that, but, again, it goes back to perception. I believe that people will think that the Bill could change it. Even though the Bill says,
it, the Bill does not say in what way the court should have regard to it. The Bill does not tell you what to do; it just says to treat it as part of the circumstances, which, as far as I am aware, courts already do. There is a danger of a lack of clarity about what acting for the benefit of society means for employers, because I would say that a school or a hospital is always acting for the benefit of society. So how does that relate to a particular accident that an individual has in their employment? Does it give them carte blanche?
Tracey Harding: Yes. Lots of wording is unclear, which is what makes it difficult for us to interpret the consequences for our members. That, in itself, is an issue because, at the moment, we are quite clear about what we have to do. If we are trained to do a particular thing, we go with our training and something unfortunate happens, we have done what we need to do within the scope of our job. The Bill is bringing in a layer of uncertainty.