What’s the point of the Social Action, Responsibility and Heroism Act?

Further to our previous post on the Social Action, Responsibility and Heroism Act 2015, David Gabell of Tees Law’s medical negligence team and a member of the Association of Personal Injury Lawyers, discusses the main features of the much-maligned act and argues it is likely to ‘muddy the waters’ for judges when they are required to apply the legal tests of duty of care, liability and causation.

 

What is the significance of SARHA 2015?

The significance, in my view, is largely a negative one. It essentially provides more shades of grey where there really isn’t any need. The Act means that those people who may otherwise have been the defendant in a claim for personal injury are now potentially safe from alleged liability, assuming they can convince a court that they were:

 

  1. acting for the benefit of society, and/or
  2. demonstrating a predominantly responsible approach towards protecting the safety or interest of others, and/or
  3. acting heroically by intervening in an emergency to assist an individual

The purpose of the Bill was to reassure people, including employers, that if they demonstrate a predominantly responsible approach towards the safety of others, during a particular activity, the courts will take this into account in the event that proceedings are issued against them.

The scope of the word ‘predominantly’ is staggering. Does it mean, for example, that an employer can be irresponsible to a degree that an employee suffers an injury, but get away with it on the basis that they are responsible most of the time? In my view that is a peculiar way to administer justice for the injured party.

SARHA 2015 has received a great deal of criticism from lawyers, are there any redeeming features?

You have to appreciate the sentiment of an Act, which seemingly tries to afford protection to the brave passer-by who risks life and limb to ‘rescue’ someone in peril—but in reality that is not really what this Act achieves. All it does is muddy the waters for judges who already need to grapple with the often complex legal tests of duty of care, liability and causation.

Are there concerns around the definition of heroism?

The word ‘hero’ conjures up all sorts of ideas about what a hero really is. A man in a cape and tights wearing their underpants over the top, or burly firemen running into a burning building to rescue the occupier. Both of which probably fit the bill for being a typical ‘hero’, but just what is heroic heavily depends on the circumstances and context of the case.

Take the following example. A surgeon performing surgery on a child discovers, during the procedure, a life threatening tumour. To remove it would be hugely risky and the chances of success are typically less than 50%, but if successful it would save this child’s life. The surgeon could close up and discuss the findings with the child and the parents and discuss the options and risks, but to do so would waste valuable time and mean a further risky operation for the child. In this case the surgeon presses on, against the odds, and attempts to remove the tumour. In doing so the condition of the child deteriorates and she dies on the operating table.

Some may say the surgeon acted ‘heroically’ and therefore any claim that the family try to bring for clinical negligence ought to be defended on that basis. Indeed, in principle, such a defence would apparently be available to the surgeon under SARHA 2015.

Others may say, not least the parents, that the surgeon’s actions fell far below a reasonable standard and that he/she was negligent in failing to stop the procedure and discuss the risks and options with the parents.

Defining ‘heroism’ is a difficult task when the context is such that the hero has seemingly caused significant harm or loss to another.

Does SARHA 2015 create any enforceable duties or obligations?

Not on individuals, per se. There is no legal duty for passers-by to now intervene in order to protect someone else from apparent harm.

However, now that the Bill has achieved Royal Assent, courts will be obliged to consider the provisions of SARHA 2015 when/if defendants seek to use its provisions in order to protect themselves from liability.

To what extent must the court have regard to the provisions in SARHA 2015?

In my view the court will, of course, have a duty to consider the provisions of the SARHA 2015 where applicable—but in practice I expect the court will still ultimately be guided by the established legal principles of negligence (ie duty of care, liability and causation). I cannot realistically see a court finding in favour of a defendant where they have been shown to have breached their duty of care and caused harm, regardless of whether they were predominantly responsible in their approach and/or acting heroically.

That said, stranger things have happened in our courts of late, so anything is possible.

Interviewed by Hannah Giles.

The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.

First published on Lexis®PSL Personal Injury. Click here for a free trial of Lexis®PSL.

Filed Under: Personal Injury

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