Dear Colleagues;
I would be very interested to know from UK colleagues whether there is any academic comment yet on the provisions of the Social Action, Responsibility and Heroism Act 2015
(UK, 2015 No 3) which I see received assent on 12 Feb 2015 (but has not yet commenced). See http://www.legislation.gov.uk/ukpga/2015/3/contents/enacted . This odd little Act purports
to lay down "matters to which a court must have regard in determining a claim in negligence or breach of statutory duty” according to the long title, and provides
- In s 2, that 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";
- In s 3, that 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 predominantly responsible approach towards protecting the safety or other interests of others”; and
- In s 4, that 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”.
Basically I have now given you the whole Act. It seems fairly obvious that this is a piece of “theatre” designed to deal with issues raised by the popular press. I did have a very quick look (thanks to a heads-up from Frank Cranmer at http://www.lawandreligionuk.com/2015/02/15/religion-and-law-round-up-15th-february/
) to the debate at Second Reading stage in the House of Lords where Lord Pannick QC makes some very amusing comments (including :
the Bill puts me in mind of what Basil Fawlty says of his wife Sybil in the celebrated television programme, “Fawlty Towers”. I hope that noble Lords will excuse this unparliamentary language. He said: “She should be a contestant on ‘Mastermind’. Special subject: the bleedin’ obvious”. )
But despite its obvious nature, and one would hope the courts would treat it in
that way, there seem to be some traps. Take, just because we’ve recently noted it here, the swimming
teacher case of Woodland. In an action against the swimming teacher, would they have
a defence because teaching swimming is “for the benefit of society”?
Suppose that most of the time they kept a proper lookout for the children, but on the day in question the lifeguard
was careless. Can the company claim they were “predominantly responsible”?
The “Good
Samaritan” provision in s 4 seems similar to the provisions introduced into NSW law with Part
8 of the Civil Liability Act 2002 (NSW), which as far as I am
aware have never been used. S 57 provides an immunity (http://www5.austlii.edu.au/au/legis/nsw/consol_act/cla2002161/s57.html )
but then s 58 deals with some situations where the immunity ought not apply (eg the “good samaritan” was drunk or else caused the situation from which the rescue was needed), neither of which is discussed in s 4 of the SARAH Act.
Regards
Neil
neil foster
T: +61 2 49217430
E: neil.foster@newcastle.edu.au
MC177 (McMullin Building)
The University of Newcastle (UON)
University Drive
Callaghan NSW 2308
Australia
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Associate Professor
Newcastle Law School
Faculty of Business and Law
Faculty of Business and Law
T: +61 2 49217430
E: neil.foster@newcastle.edu.au
Further details: http://www.newcastle.edu.au/profile/neil-foster
My publications: http://works.bepress.com/neil_foster/ , http://ssrn.com/author=504828
The University of Newcastle (UON)
University Drive
Callaghan NSW 2308
Australia
CRICOS Provider 00109J
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