Will the SARAH Bill redress the balance in health and safety culture?

Will the SARAH Bill redress the balance in health and safety culture?

The Social Action, Responsibility and Heroism Bill (SARAH Bill) was introduced in the House of Commons on 12 June 2014. The SARAH Bill is part of a number of initiatives, such as the HSE’s myth buster campaign and Red Tape Challenge, to try to get back to a more common sense health and safety approach.

The affectionately nicknamed SARAH Bill has been developed to try to redress the balance in health and safety culture and to stop employers and members of the public being held liable, despite having done the ‘right thing’ to protect others.

The current legal position for someone who causes loss or injury to another person during the course of an activity is that they face being sued for damages (in the tort of negligence) or in certain situations for breach of a statutory duty (such as the duty owned by owner/occupier of land to visitors or trespassers under the Occupiers Liability Acts 1957 and 1984).

For the claimant to be successful they need to prove that they were owed a duty of care and that the defendant’s conduct fell short of the applicable standard of care. This will involve the courts objectively considering whether the defendant acted ‘reasonably’ in all the case’s circumstances.

Will the SARAH Bill change this position? The idea is that the Bill doesn’t actually change the overarching legal framework, discussed above, but that it would instead direct the courts to consider certain factors when deciding whether the defendant took reasonable care. The factors to consider include:

  • the alleged negligence/breach of duty occurred when the defendant was acting for the benefit of society or any of its members (clause 2)
  • in carrying out the activity in the course of which the negligence/breach of statutory duty occurred, the defendant had demonstrated a generally responsible approach towards protecting the safety or other interests of others (clause 3)
  • the alleged negligence/breach of duty occurred when the defendant was acting heroically by intervening in an emergency to assist an individual in danger and without regard to his own safety or other interests (clause 4)

These factors are supposed to give reassurance to people that a court will take full account of the context of their actions in the event that they are sued. But, the SARAH Bill doesn’t tell the court what conclusion it should reach and won’t stop a person from being found negligent if the circumstances of the case warrant it.

Critics are arguing that the SARAH Bill is toothless and a waste of time, given that it makes no changes to the overarching legal framework, doesn’t apply at all to criminal liabilities and that legislation already exists, which arguably deals more precisely with the underlying issue (see section 1 of the Compensation Act 2006).

Given that the Bill will only have an impact once a case reaches the civil courts, it will not help the many cases settled out of court and is unlikely to really deter claimants from bringing claims in the first place.

Some claim that the Bill is a recognition that the culture of excessive health and safety regulations needs to change and that the judiciary needs to stop supporting compensation culture, but that the SARAH Bill won’t help.

Government counters critics by claiming that the Bill is important in obliging the courts to consider whether someone ‘took a generally responsible approach to safety’. The knock on effect of this should be, they claim, the ‘creation of a greater sense of community spirit and happiness for the wider public’, where volunteers feel less inclined to have to take out insurance, employers don’t feel they need to settle damages claims out of court because of a fear of being found negligent and more people passing by will stop to help those in difficulty.

Despite the government’s apparent rosy outlook, their official impact assessment for the Bill admits that claimants will only be ‘slightly less likely’ to bring a claim in negligence, leading to only ‘slightly less compensation in aggregate’ being paid, with a resulting beneficial impact for insurers who will pay out less compensation.

So, despite what they say to counter criticisms of the Bill, the government doesn’t actually seem to hold such high hopes for the impact this Bill will have on negligence type claims. The jury is still out on whether the Bill achieves its other aims of sending a message about the importance of voluntary action and quelling public anxieties about liability.

The Bill, which has just had its third reading in the House of Lords, is expected to receive Royal Assent in early 2015, subject to parliamentary approval and we will continue to monitor its progress.

See also our post on the Dispute Resolution blog which shows the amendment to clause 3.

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About the author:

Simone is an environmental law specialist and is head of LexisPSL Environment.

Simone moved to LexisNexis from Clyde & Co where she trained. Whilst at Clyde & Co Simone gained experience in contentious work, including large scale arbitrations, private claims and regulatory breaches, and a variety of non-contentious issues. Some of her experience includes the EU Emissions Trading System, the domestic Carbon Reduction Commitment Energy Efficiency Scheme, environmental due diligence, Energy Performance Certificates, permitting requirements and contaminated land.

Simone has written a number of articles, which have been published in various journals and is a trustee of the United Kingdom Environmental Law Association (UKELA).