Is SARAH heroic at all?

June 12, 2018

The Social Action, Responsibility and Heroism Act 2015 (SARAH)[1] is a piece of legal reform enacted with the political sentiment of offering  ‘legal assurances’[2] [3] for individuals who might have conducted themselves negligently whilst carrying out or participating in a socially desirable activity. Potential defendants thus could rely on SARAH to demonstrate they were not ‘negligent or in breach with a statutory duty’. This essay intends to examine the utility and significance of the Act. It will be contended that SARAH brought ‘no substantive change to the law’[4] because it is indeed only a mere restatement of common law principles. In fact, the Act had created more confusion for both the court and public when considering if someone is negligent. More importantly, it is the central claim of this essay to suggest the enactment of SARAH is overall regrettable because it is based on mere ‘political sloganeering’ which ignores the reality of Tort Law.

 

Legal impacts of SARAH

 

SARAH, along with the Compensation Act 2013[5], and Defamation Act 2013[6], reflects the broader  legislative trend of ‘merely reiterating’[7] principles laid by common law cases. In the exact wordings of SARAH, in determining a claim of negligence or breach of duty of care, judges “must” regard to the considerations of whether a defendant’s act is ‘for the benefit of society’ (Section 2), or if it has ‘demonstrated a responsible approach’ in protecting the safety and interests of others (Section 3), or whether it was anyhow a ‘heroic intervention’ during a danger (Section 4).

 

There were little legal changes brought by SARAH. Firstly, traditional analysis of negligence already sufficiently considers the social utility which Section 2 is concerned with. The Act did not explicitly quantify what is meant by ‘social benefits’ at all, nor did it state what kind of social initiatives should be included[8].  Thus, courts would have referred to precedents rather than SARAH to consider the precautionary steps a defendant could have taken. In Tomlinson[9], the court held that there were sufficient precautions, and the risk of harms did not unjustifiably outweigh the social benefits of recreation facilities. Courts have also held that the organisers for youth’s outdoor activities[10], or emergency services[11] should not bear onerous legal or economic burdens when carrying out their activities. Furthermore, Section 2 is redundant because its purpose to compel courts to take into account of standard of care was already stipulated by s1 of the Compensation Act of 2006[12]. Similar problems arises for Section 3. It may be argued that a greater protection is offered by SARAH to defendants in cases which claims of negligence is brought against them, because it created a mandatory legal requirement which obliges courts’ to thoroughly take into account of the quality and duration of defendant’s act. However, one must notice Section 3 creates no substantive legal changes, it merely operates as a ‘rule of evidence’[13], which is already a common practice for courts when considering the standard of care. As for Section 5, as Lord Pannick[14] rightly pointed out, the statutory language is not clear enough to show what degree of proximity or sacrifice is required of the defendant to sufficiently demonstrate their actions constitute ‘heroism’ in a particular instance. Moreover, on a practical level, it can be doubted whether there is even a need to enact Section 5, as ‘law’ would probably be the “last thing that is likely to enter one’s mind”[15] for those who would choose to act ‘heroically’ in an emergency. It would not have altered the role of emergency services as well[16][17]. Finally, the spirit of both Section 3 and Section 4 is in odd contrast with English law. As Rachael Mulheron noted[18], the emphasis on the need to be ‘predominantly responsible’ or the proof of being ‘heroic’  is plainly contrary English common law’s ‘bad samaritan rule’.

 

 

Wider influence of SARAH?

 

Provided SARAH has extremely limited legal impacts, the government passed SARAH to deliver an extrajudicial political message. It is contended that the messages that SARAH aims to deliver to the public are just as problematic. It was clear from the outset that the government enacted this legislation with the ambition of tackling a growing ‘compensation culture’ which stemmed from the notion of fault-based liability established in common law[19]. This was indicated by the government in legislative stages, when it was claimed that SARAH was enacted to deter “speculative and opportunistic claims”[20]. However, this symbolic message exacerbates the misconception that there is even a ‘compensation culture’ to begin with. In other words, the enactment of SARAH is premised upon an increasing number of individuals who abuse the legal procedures on a massive scale by pursuing legal claims based on tortious liability frivolously, e.g. personal injury claims. Two refutations can be provided to tackle such entrenched belief. Firstly, empirically there has been no real increase of personal injury claims since 2006[21]. Secondly, even on a wider historical context, the ‘increase propensity’ of compensation  is principally justified, and in no way indicates it is a ‘damaging’ form of legal culture. It is indeed a positive legal development that more individuals are aware of their legal rights for compensations, and thus are willing to advance such claims[22]. As Lord Sumption said[23], Tort Law itself has been developed and legitimately expanded by judges in accordance with the “collective instincts and values of the public at large”, and it would be “absurd to complain about a culture of blame” if it is a culture of legally vindicated rights.

 

In conclusion, SARAH lacks legal clarity and offers no substantive legal changes. Instead, it creates greater confusion, and its provisions were proven to be ‘very worrying’[24].  Additionally, it falsely characterises modern state of Tort Law to be in the throes of  a ‘compensation culture’. Fundamentally, to truly combat the popular misconception of “when there is blame, there is a claim”[25], what should be endorsed are legal dialogues and communication on “the basics of tort law to the wider community”[26], and not an abuse of legislative process as epitomised by SARAH.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Bibliography

 

Legislation

Compensation Act, 2006

 

Compensation Act 2013

 

Defamation Act 2013

 

The Social Action, Responsibility and Heroism Act 2015

 

Cases

 

Daborn v Bath Tramways Motor Co Ltd  [1946] 2 All E.R. 333

 

Tolley v Carr [2010] EWHC 2191 (QB)

 

Tomlinson v Congleton Borough Council [2003] UKHL 47

 

Watt v Hertfordshire County Council [1954] 1 WLR 835

 

Wilkin-Shaw v Fuller [2013] EWCA CIV 410

 

 

Journal Articles

 

Adaeze Okoye, ‘The UK Social Action, Responsibility and Hero-ism (SARAH) Act 2015 and Corporate Social Responsibility (CSR): Potential Connections’ [2015] 26 ICCLR 373

 

James Goudkamp, ‘Restating the common law? The Social Action, Responsibility and Heroism Act 2015’ (2017) Leg. Stud. Vol. 37

 

Rachael Mulheron ‘Legislating Dangerously: Bad Samaritans, Good Society, and the Heroism Act 2015’ (2017) 80(1) MLR, 105

 

Richard Lewis, Annette Morris, and Ken Oliphant, Tort Personal Injury Claims Statistics: Is There a Compensation Culture in the United Kingdom? (2006) Torts Law Journal 158

 

 

Speeches

 

Lord Dyson, ‘Compensation Culture: Fact or Fantasy?’ (Speech at Holdsworth Club Lecture, London, 13 March 2013)

 

 Lord Sumption, ‘Abolishing Personal Injuries Law - A project’ (Speech at Personal Injuries Bar Association Annual Lecture, London, 16 November 2017

 

Press Releases

 

Chris Grayling, Press Release, 2 June 2014 ‘Grayling: law must protect everyday heroes’, 2 June 2014

 

Ministry of Justice Press Release, ‘Courts to recognise good intentions of volunteers and small businesses’ 12 Feburary 2015

 

 

Parliamentary Debates

 

House of Commons Debates Vol 566

 

House of Lords Debates col 1563

 

House of Lords Debates Vol 589

 

 

 

 

 

 

[1]The Social Action, Responsibility and Heroism Act 2015

 

[2] Ministry of Justice Press Release, ‘Courts to recognise good intentions of volunteers and small busineses’ 12 Feburary 2015

 

[3] Chris Grayling, Press Release, 2 June 2014 ‘Grayling: law must protect everyday heroes’, 2 June 2014

 

[4] A Dugdale (ed) Clerk & Lindsell on Torts (London: Sweet & Maxwell, 21st edn, 2014) [8- 174D].

 

[5] “.. introduced as a response to the perception of the growth of a ‘compensation culture’ . . . [then] it is somewhat difficult to see why it was felt necessary to enact it, and why, as enacted, it was couched in discretionary terms” as per Owen J in Wilkin-Shaw v Fuller [2013] EWHC 353 (QB) [75]

 

[6]  James Goudkamp ‘Restating the common law? The Social Action, Responsibility and Heroism Act 2015’ (2017) Leg. Stud. Vol. 37, 578

 

[7] Rachael Mulheron ‘Legislating Dangerously: Bad Samaritans, Good Society, and the Heroism Act 2015’ (2017) 80(1) MLR, 91

 

[8] Adaeze Okoye, ‘The UK Social Action, Responsibility and Hero-ism (SARAH) Act 2015 and Corporate Social Responsibility (CSR): Potential Connections’ [2015] 26 ICCLR 373

 

[9] Tomlinson v Congleton Borough Council [2003] UKHL 47

 

[10] Wilkin-Shaw v Fuller [2013] EWCA CIV 410

 

[11] Watt v Hertfordshire County Council [1954] 1 WLR 835

 

[12] Compensation Act, 2006. s1.

 

[13] James Goudkamp ‘Restating the common law? The Social Action, Responsibility and Heroism Act 2015’ (2017) Leg. Stud. Vol. 37, 592

 

[14] David Pannick QC, HL Deb col 1563, 4 November 2014.

 

[15] James Goudkamp ‘Restating the common law? The Social Action, Responsibility and Heroism Act 2015’ (2017) Leg. Stud. Vol. 37, 577-598

 

[16] Tolley v Carr [2010] EWHC 2191 (QB)

 

[17] Daborn v Bath Tramways Motor Co Ltd  [1946] 2 All E.R. 333

 

[18] Rachael Mulheron ‘Legislating Dangerously: Bad Samaritans, Good Society, and the Heroism Act 2015’ (2017) 80(1) MLR, 105

 

[19] Chris Grayling, HC Deb vol 566  col 1187,  21 July 2014

 

[20] Chris Grayling, HC Deb, vol 566  col 1190, 21 July 2014

 

[21] Richard Lewis, Annette Morris, and Ken Oliphant, Tort Personal Injury Claims Statistics: Is There a Compensation Culture in the United Kingdom? (2006) Torts Law Journal 158

 

[22]  ibid.

 

[23] Lord Sumption, ‘Abolishing Personal Injuries Law - A project’ (Speech at Personal Injuries Bar Association Annual Lecture, London, 16 November 2017) <https://www.supremecourt.uk/docs/speech-171116.pdf> accessed 30th April, 2018

 

[24] Lord Woolf, HL Deb, vol 589, col 33, 15 December 2014,

 

[25]Lord Dyson, ‘Compensation Culture: Fact or Fantasy?’ (Speech at Holdsworth Club Lecture, London, 13 March 2013) <https://www.judiciary.gov.uk/wp-content/uploads/JCO/Documents/Speeches/mr-speech-compensation-culture.pdf > accessed 30th April, 2018

 

[26] Ken Oliphant, ‘Rationalising Tort Law for the Twenty-First Century’ in K. Barker, K. Fairweather, & R. Grantham (Eds.), Private Law in the 21st Century (2017: Hart Publishing), 48

Please reload

Our Recent Posts

Please reload

Archive

Please reload

Tags

Please reload

 

Bristol, UK

©2017 BY BRISTOL LAW REVIEW. PROUDLY CREATED WITH WIX.COM