Social Action, Responsibility and Heroism Bill

Written evidence submitted by the Association of Personal Injury Lawyers (SA 02)

About APIL

The Association of Personal Injury Lawyers (APIL) was formed by claimant lawyers to represent the interests of personal injury victims. APIL is a not-for-profit organisation with 24 years’ history of campaigning for changes in the law to help injured people gain the access to justice they need. APIL currently has around 4,000 members, comprising solicitors, barristers, legal executives and academics whose interest in personal injury work is predominantly on behalf of claimants.

The aims of the Association of Personal Injury Lawyers (APIL) are:

· to promote full and just compensation for all types of personal injury;

· to promote and develop expertise in the practice of personal injury law;

· to promote wider redress for personal injury in the legal system;

· to campaign for improvements in personal injury law;

· to promote safety and alert the public to hazards wherever they arise; and

· to provide a communication network for members

Executive Summary

1. The Social Action, Responsibility and Heroism Bill is legislation which is not needed, as it will not change the law. It is simply an unnecessary use of parliamentary time. The Bill adds nothing to the law which isn’t already dealt with under the Compensation Act 2006, which already provides a direction to the courts to consider desirable activities when making a decision in a personal injury claim.

2. If the Government wishes to send a message to volunteers and "heroes" to reassure them, it should do this by means of education , and not legislation.

3. While not adding anything new to the current law, the Bill does have unintended consequences. As a result of the Bill, and especially the publicity it has generated, people will have the mistaken belief that they have protection under the law when they attempt to help people but cause injury , when this may not necessarily be the case. The Bill may also encourage people to cut corners, and could leave vulnerable people at even more risk.

The current law

4. APIL welcomes the opportunity to submit written evidence to the public bill committee as part of its scrutiny of the Social Action, Responsibility and Heroism Bill. It is disappointing that in the last Queen’s Speech before the general election, the Government chose to include a Bill which is an unnece ssary use of parliamentary time, and one which will not help people injured through no fault of their own.

5. During the second reading debate on the Bill in July, Chris Grayling admitted that the Bill "does not rewrite the law in detail or take away discretion from the courts…". The Bill simply re-states the current law, and we question the need for it.

6. According to the impact a ssessment of the Bill, the aim of the Bill is "to reassure the public that if they participate in activities which benefit society, adopt a generally responsible approach towards protecting the safety of others in the course of a particular activity, or intervene to help somebody in an emergency, the court will always take the context of their actions into account in the event they are sued".

7. This is already the case. Section one of the Compensation Act 2006 gives the court the power to have regard to the activity that was taking place. The section says

" Deterrent effect of potential liability

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

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

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

Education, not legislation

8. If the Government wishes to send out signals or messages, but not rewrite the law, then it should do this by means of education and guidance, and not legislation. On the Government’s own website, guidance is already provided for those who wish to clear snow from a road, path or cycle way . The guidance includes five points of advice, and says that, "you can clear snow and ice from pavements yourself. It’s unlikely that you’ll be sued or held responsible if someone is injured on a path or pavement if you’ve cleared it carefully [1] ".

False protection

9. An unintended consequence of this legislation will be the confusion that it will cause about who is protected from the law, and to what degree. With the way the Bill is being championed by the Government, it is entirely likely that people will feel encouraged to wade in to help others and risk injuring them in the process, or making their injuries worse. It is commendable that people will want do this based on a genuine desire to help . We are concerned , however, that those people will be under the mistaken belief that they are protected by the law as a result of the Bill, should anything go wrong when, in fact, the courts will probably be just as likely to find them negligent (if their actions are, indeed, negligent) as they are now.

10. T he "hero" will have no more protection under this Bill than he already has under the current law. The "hero" should always be aware that his actions may have adverse consequences, and this Bill should not be an invitation for volunteers not to pr ovide proper care and attention, or to cut corners.

Removing protection

11. As well as providing a false protection for "heroes" and volunteers, the Bill may actually unwittingly remove protection that already exists. Those who "employ" volunteers may be under the mistaken belief that they can be less rigorous in their risk assessments, thereby leaving those in their care more vulnerable to harm. A chairman of a local football club, for example, may be tempted to cut corners in vetting the suitability of his volunteers in the mistaken belief that they are protected by the law because they are ‘acting for the benefit of society’, should anything go wrong. In this kind of environment children are particularly vulnerable to predatory adults, and need more protection, rather than less.

Protecting employees

12. Speaking during the second reading debate , Chris Grayling said that clause three of the B ill "has a particular importance in ensuring we provide proper protection for small business es ", as he says that "the compensation culture is tying their business is knots". Firstly , it is important to note that every report on the issue of a "compensation culture", including a report by Lord Young of Graffham, conducted on behalf of the Prime Minister, has found that it is merely a perception than a reality.

13. Secondly, an employer can only be sued successfully if the injured employee can prove the employer has been negligent, and not if the employee effectively injured himself by doing ‘something stupid’. This protects both the employee and the employer.

14. An employer has a duty to provide a safe working environment, and to ensure there are systems in place and adequate training provided to ensure workers are competent. He is considered to be responsible for the conduct of his employees while they are at work (otherwise known as ‘vicarious liability’). He is also responsible for ensuring the employee knows that if does ‘something stupid’ and someone is injured needlessly, the consequences will be serious. Legislation introduced more than 40 years ago made it compulsory for an employer to have insurance in case an injured employee can prove the employer has injured him through negligence and claims compensation.

15. Public pronouncements made when the Bill was published suggest that an employer who ‘tries to do the right thing’ should not be penalised by the law if someone is injured. This is broadly reflected in clause thre e of the Bill, although the word ing is vague. This is, surely, an open invitation to the employer to take risk assessment less seriously, provided he can be considered to be ‘doing his best’. But his ‘best’ may not be good enough, and if an employee is injured because his employer or another employee is negligent or incompetent, where is he to turn for the compensation he may need to be able to go back to work quickly?

16. The wording of clause 3 is currently vague, and is already causing discussion and debate as to who the clause will and will not protect, and to what extent that protection is either given or taken away. One possible implication this clause is that w orkers could be forced to take out personal insurance to protect themselves, if they no longer have the protection of their employers’ compulsory insurance, if they are injured at work. This would undoubtedly be a gift to the insurance industry .

September 2014


Prepared 5th September 2014