There are divergent assessments of what the effect of the Social Action, Responsibility and Heroism Bill (SARAH) will be, but any practical impacts on social action, responsibility and heroism are generally regarded as unlikely. With four headings, four operative clauses and totaling 13 lines, that is some achievement. And therein is the nub. It is simply so short that it is imprecise and uncertain.
SARAH is engaged in every case where a standard of care in negligence, or breach of a statutory duty and the steps defining the duty, are in focus. Those thinking that SARAH was just about personal injury cases should think again. The extent of application is frankly awesome. Moreover, in all engaged cases the court is mandated to have regard to three things, each with its own heading.
First, social action. The court has to consider whether when the cause of action occurred the alleged wrongdoer was acting for the benefit of society or any of its members. Presumably, the benefit of its members is also intended, but what might that be and how does either intention influence consideration of the steps required and with what consequence? And what is the relationship, indeed if any, between ‘the benefit of any members’ and social action?
Second, responsibility. This is also not defined, but the court has to consider whether, when the (relevant) activity (giving rise to the cause of action) was undertaken, the alleged wrongdoer had ‘demonstrated a predominantly responsible approach to protecting the safety or other interests of others’. Extraordinarily, the word ‘predominantly’ was a late amendment accepted after it was conceded that the predecessor wording ‘generally responsible’ was too uncertain.
Third, heroism. The court must consider whether, when the cause of action occurred, the alleged wrongdoer was ‘acting heroically by intervening in an emergency to assist an individual in danger’. That must mean dealing with something beyond the normal call of duty, and so cannot refer to emergency services staff as that is the very job they are employed to. And it cannot be first aid volunteers as they are trained, and are expected, to intervene.
So, what are we left with but legislation that requires the court to look at whether an alleged tortfeasor was doing something socially useful and can show that they were usually risk conscious?
Fraser Whitehead, partner, Slater & Gordon, London
