Health and safety update

The justice secretary, Chris Grayling introduced a new bill, the Social Action, Responsibility and Heroism Bill (SARAH), in June 2014.

The Ministry of Justice (MoJ) preamble to SARAH reads as follows: “The Bill has been developed in response to concerns that people may be put off from taking part in voluntary activities, helping others, or intervening in an emergency due to worries about risking liability. The government
also wants to make sure that when people such
as employers have been taking a responsible approach towards the safety of others trying activity and something goes wrong, the courts
will take account of the circumstances.

“The Bill therefore contains measures to
reassure people that if they are acting for the benefit of society, intervening, in an emergency,
or demonstrating a generally responsible approach towards the safety of others during an activity, then if something goes wrong and they are sued for negligence or for certain breach of statutory duty, the court will take account of the full context to their actions.”

At first instance, the title of the Bill would not suggest that the proposed legislation would have anything to do with health and safety, however, the MoJ preamble and introduction of the Bill provided by Grayling indicate that SARAH has more to do with eroding health and safety legislation than it does with helping the hero.

The true purpose of SARAH can be understood by the fact that the measures will provide no further protection to the Good Samaritan or
hero than current common law and legislation.

To be found negligent under existing
common law, a defendant must be shown
to have breached a duty of care. The court looks
at whether the defendant took reasonable care
in the circumstances against an objective test
(the ordinary and reasonable person).

Civil claims for breach of regulations are
based on the common law duty of negligence
and therefore factors such as: are people carrying out a good deed; had they been acting in a ‘generally responsible way’; and if they were ‘acting in emergency’, are already accounted for, albeit
in a non-prescriptive manner, and they are also covered by the compensation Act.

In deciding whether a defendant took reasonable care, the courts under the Compensation Act consider the social value of an activity and the need not to discourage others from undertaking similar actions when making a ruling.

The Enterprise Act also recently removed civil liability for breach of health and safety regulations, therefore civil claims for breach of regulations are now based on the common law duty of negligence and the protection that SARAH provides is no different to the protections afforded under
current law. So what is SARAH really all about?

Compensation culture?

When introducing the Bill, the justice secretary stated that SARAH would be set to tackle a ‘perception’ that people are at risk of being sued and he also talked about the ‘perception’ of the health and safety culture. However, is perception enough of a premise on which to base legislation, especially when it is arguable that the wrongful perception of current health and safety laws has been perpetrated by the government who are proposing the legislation?

The introduction of SARAH adds nothing to
the current health and safety landscape and is a continuation of government posturing against
a compensation culture that does not actually exist. The government remains focused on instilling fear and mistrust of health and safety laws, causing the public to believe that they are a burden to individuals and businesses alike rather than a form of protection.

Grayling, during the second reading of SARAH
in July 2014, pointed out that daytime television advertisements were fuelling a rise in personal injury claims, and insisted that society is becoming “increasingly litigious” and that
SARAH would bring “balance to the health
and safety culture”.

The shadow justice secretary, Sadiq Khan, labelled the Bill “pathetic” and highlighted that “nothing in this Bill reduces the prospect of >> >> being sued”. He emphasised to the government that “instead of your Bill, your energies and those
of your officials would have been better spent rebutting some of the myths around negligence and health and safety”.

There are many other dissenting voices to
the Bill. Sir Edward Garnier, the former attorney general, has said he was not persuaded that the Bill covered any new territory or that it would achieve its objective in terms of reducing the so-called health and safety culture.

I believe that SARAH is being used to introduce further health and safety legislation through the back door both as a ‘vote winner’, with the impending general election, and as a further
move to appease the insurance industry.

The government has made much of stating that it is trying to reduce and streamline legislation. The chancellor, George Osborne, took the opportunity when making his 2012 budget speech to confirm that the government will “unashamedly back business” and continue with their intention to “scrap or improve 84 per cent of health and safety legislation”.

The 84 per cent figure accounts for feedback received from businesses to a government ‘Red Tape Challenge’ which reviewed health and safety legislation. The Treasury reported that following the Red Tape Challenge, 167 of 199 measures considered would be ‘scrapped’.

Perpetuating myths

It is farcical that the government, who on the one hand say they wish to streamline the law and cut
red tape, are proposing a new law that is entirely superfluous but plays well to the public gallery
less than 12 months before an election.

Additionally, the introduction of SARAH simply serves to perpetuate the misconception that
a compensation culture exists. The Better Regulation Task Force report from 2004 found
that compensation culture was, in fact, a myth.
Therefore a decade on, why is the government
still insisting that the culture exists?

The Health and Safety Executive’s statistics for 2009/10, show that over a ten-year period from 1999/2000 to 2009/2010 there was a 22 per cent
fall in fatal or serious injuries and a 33 per cent reduction in injuries resulting in workers having more than three days off work and a 30 per cent reduction in work days lost.

The UK boasts an enviable safety record due to its health and safety laws. There is no logical reason for the government to weaken these laws under the guise of protecting the Good Samaritan at the expense of the safety of many thousands more, except to advance its mission to reduce protection of the individual for the benefit of businesses, such as the insurance industry.

It is clear that the government’s real intention for introducing SARAH is to make it more difficult for an injured person to claim compensation from their employer. Grayling has commented that SARAH will be used to protect employers. Employees who do “something dumb” and hurt themselves will no longer be awarded damages if their bosses have taken sensible steps to keep staff safe. He continued to say that there is a need to “slay the health and safety culture”.

The language used to describe injured people as ‘having done something dumb’ is perpetuating the myth that someone will receive compensation when they are the author of their own misfortune. The reality is, if we take a responsible employer who implements proper staff training, utilises sensible safety procedures, and tries to do the right thing, but despite this someone injures themselves doing something that no reasonable person would ever have expected, a negligence claim would fail.

Economic impact

Once again it seems that rather than targeting perception the government are choosing to alter reality at the expense of vulnerable individuals
and are continuing to trample on the protections afforded to injured individuals who will find it increasingly difficult, even where they are not at fault, to bring a successful claim.

No thought has been given by this government to the effect that an injured employee will have on public services when they are prevented in bringing a claim due to the erosion of their ability to bring a claim even when their employer can been shown to have breached health and safety legislation.

The economy at large will be impacted through unrecoverable time off work which will result in the payment of less tax and an increased reliance on public services, for example the NHS and the benefits system.

SARAH affords yet another opportunity for insurers to continue to reap the benefit of receiving premiums, but without having to indemnify a claim because liability is not as
easily proven despite clear breaches of regulations. Ultimately, it will be the taxpayer who will be left picking up the pieces for the injured person. SJ

 

Zahra Nanji is a solicitor at Leigh Day