Social Action, Responsibility and Heroism Bill

Written evidence submitted by the Law Reform Committee, City of Westminster and Holborn Law Society (SA 05)

INTRODUCTION 

1 This Society is a voluntary association of lawyers, predominately solicitors working in the area of its name. Uniquely among local law societies it has a Law Reform Committee, which studies and from time to time originates various proposals for law reform, and makes submissions, usually to the Law Commission or the Ministry of Justice. This submission has been prepared by that Committee.

2 We support the aims of the Bill, as detailed in the letter dated 23rd June 2014 from Shailesh Vara MP, Parliamentary Under-Secretary of State for Justice, Ministry of Justice, to the Chairman of the Joint Committee on Human Rights. We proposed last year to the Law Commission that reform along some such lines should be included in its next programme of law reform, but that proposal was not taken up. We have however misgivings about the effectiveness of the Bill in its present form. It is submitted that a modest amendment would meet most of the difficulties.

3. In this paper:

‘mitigation’ is used to mean reduction of damages under the suggested amendment to the Bill – not to be confused with use of the word in any other context.

‘Accident’ usually refers to an unintended incident for which the defendant would but for the Bill be wholly responsible in negligence.

4. The Bill provides only that a court considering claims in negligence or breach of statutory duty must have regard to each of the three matters summarised in the Bill’s short title. However we agree with many other lawyers that those matters must always be considered by the court if relevant to the claim, and it cannot be that the Bill intends to make no change in the law. If the law is to be properly reformed by the Bill the court must be given a new power to give effect to those matters. We suggest that the right method is through a discretionary power exercisable by the courts.

5. The weakness in the Bill is that it addresses only the scope of the defendant’s duty of care. It must, we submit, also extend to certain cases where the defendant has failed in his duty of care. Almost any voluntary activity can cause damage or injury should it go wrong. Under present law the court ascertains only whether the defendant owed a duty of care, and (contributory negligence apart) breach of that duty – negligence – results in full liability by the defendant to the claimant. To avoid liability the defendant must show that he was not negligent, and if he cannot he is fully liable to the claimant.

6. That is not always just. Accidents happen because everybody from time to time unintentionally fails in some way or other to exercise the care he should. It is an inherent risk in every human activity. That is why people do, and for some activities must, insure themselves against the consequences of their own negligence. We submit that, if the defendant’s activity was not for his own benefit and the circumstances included the matters described in clauses 2, 3 and 4 of the Bill, he should be treated broadly as if he had assumed less than 100% of the risk of his own negligence. In the event of an accident he should be liable for that proportion only of the damages that would be otherwise payable. The rest of the loss should lie with the claimant. There is nothing unfair in that, except on the untenable basis that every accident must be compensated by a claim against somebody.

7. Our solution is fairer than that at present proposed in the Bill, which confines the issue to whether or not the defendant had a duty of care. A finding in favour of a defendant under clauses 2, 3 or 4 of the Bill as it now stands might wholly deprive the claimant of any remedy at all. That may be argued to be as unjust as the position under present law, or indeed to be an infringement of the claimant’s human rights. The amendment would meet those difficulties. There are important questions involving insurance, which are dealt with later in this paper.

8. The courts would be well able to exercise their proposed discretion. It would probably be no more difficult than the task of apportioning liability in cases of contributory negligence. The reform, as amended, would not involve any additional public expense.

PROPOSED AMENDMENT TO THE BILL 

9. It is proposed that the Bill should be amended by addition of the passages shown below in italics:-

1 When this Act applies. This Act applies when a court, in considering a claim that a person was negligent or in breach of statutory duty, is determining the steps that the person was required to take to meet a standard of care

[add] and/or determining the amount of damages payable by the person to the claimant.

2 Social action. The court must have regard to whether the alleged negligence or breach of statutory duty occurred when the person was acting for the benefit of society or any of its members.

3 Responsibility. 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.

4 Heroism. The court must have regard to whether the alleged negligence or breach of statutory duty occurred when the person was acting heroically by intervening in an emergency to assist an individual in danger and without regard to the person’s own safety or other interests.

[add new clause]

4A If the court shall find that the person had been acting in one or more of the circumstances mentioned in sections 2 or 4 of this Act and in accordance with the matters set out in section 3, and if it should further appear to the court that it would be unjust in all the circumstances of the case that the person should be held fully liable to the claimant, it may refuse an award of damages or may reduce the award by such amount or proportion as it shall think fit.

5 Extent, Commencement and Short Title. (…………….)

10. The proposed reform will doubtless be invoked comparatively rarely, but it ought not to be rejected on that ground. It should be an important point of principle that the law ought not to require the court to make an order that it would consider unjust.

11. The need for the reform is most obvious where persons carry out selfless tasks individually – without the guidance or support of a charity or other organisation. For example,

(a) A in dangerous conditions rescues a drowning swimmer but negligently injures him as he helps him ashore (heroism);

(b) B clears snow from his neighbour’s doorstep, but negligently fails to inform the neighbour of ice causing the neighbour to slip and suffer injuries (social action); or

(c) C opens his garden to the public for payment to raise funds for a charity. A visitor trips on a dangerous step which C had negligently failed to fence off (social action).

RELEVANCE OF INSURANCE 

12. Existence of Insurance. If the defendant was covered by insurance against the accident it seems impossible that a court could in its discretion apply mitigation which would benefit only the insurer, because

(a) Insurance must clearly be a circumstance to be considered under clause 4A, and in such a case full liability by the defendant could not be said to be unjust.

(b) A primary purpose of effecting the insurance (it should be assumed for this purpose) is to ensure that the victim of any accident would be fully compensated. Mitigation would defeat that purpose.

This meets the argument that the Bill is for the benefit of insurers.

13. Failure to Insure. If the defendant was the voluntary organiser of a substantial public event it may normally be expected that he should have effected insurance against the claim, particularly if funds were available out of which premiums could have been paid. In such case the court would be almost bound to hold that the defendant’s liability ought not to be mitigated. But if insurance had been effected but was insufficient to meet the claim, there could be a stronger case for mitigation, for example by the amount of the uninsured loss.

14. Assuming that in none of the three examples above the defendant had insured, a court might approach the mitigation issue by first considering whether it was normal and reasonable to expect him to have insured. In examples (a) and (b) the answer would doubtless be no, and the court should be ready to consider mitigation. In example (c) the court might think fit to enquire why the property was not insured against the risk under a normal household insurance policy, and perhaps also whether the event was held as part of an organised scheme which could have provided insurance. Questions of that kind would be just some of many matters that might be relevant for consideration under Clause 4A.

CONCLUSION 

15. We submit that with the amendments we have suggested the Bill would create a worthy reform to the law of negligence.

September 2014

Prepared 9th September 2014