New Bill proposed to protect the good intentioned from civil consequences, but criminal consequences could still result

The Social Action, Responsibility and Heroism Bill

The Social Action, Responsibility and Heroism Bill was introduced on 12 June 2014 and could become law as soon as early 2015.

This Bill is important in that it seeks to re-write the interpretation not only under the common law principle of negligence but also of statutory duties of care to take account of:

  • Whether any breach occurred whilst the person was acting for the benefit of society or any of its members
  • Whether the person demonstrated a generally responsible approach towards protecting the safety or other interests of others
  • Whether the person was acting heroically by intervening in an emergency to assist an individual in danger and without regard to the person’s own safety or other interests.

This seeks to undo the perceived negative effects of “claims culture” on the willingness of people and organisations to involve themselves in socially desirable activities and take action to protect the lives of others (in one infamous case two PCSO’s allegedly failed to intervene to save a child from drowning because they had not been given the proper training to effect a rescue). It also seeks to enshrine a recognition that taking a generally responsible approach should be taken into consideration, which is probably intended to address the concern that technicalities, such as the lack of documentation, will be perceived to be negligent even if proper precautions are in place.

This potential change follows the high profile revision of section 47 of the Health and Safety at Work etc Act 1974 (already implemented by the Enterprise and Regulatory Reform Act) to require claimants to prove negligence when claiming compensation from their employers for alleged breaches of health and safety regulations. Previously, unless the regulation provided otherwise, employers were strictly liable for any breaches, such as latent and undetectable equipment defects.

Whilst these moves have generally been hailed as a recognition of common sense, they do nothing to change the criminal law that imposes strict liability duties, and an obligation to do all that is reasonably practicable on employers to protect their own employees and third parties affected by their activities.

The interpretation of reasonable practicability to require a “gross disproportion” between the costs of taking additional precautions and the improvements in safety that would result has already been brought into question in some quarters as imposing too high a threshold. However it remains a cornerstone of the UK government’s defence of its obligations under the Framework Directive. The new Bill only applies to “a claim that a person was negligent or in breach of statutory duty”, that wording is likely to only apply to civil claims and not to criminal prosecutions.

Employers potential liabilities not just limited to civil claims

This leaves employers in the unpalatable position that whilst they may be able to defend a civil claim following an incident based on a responsible approach, they could be prosecuted and convicted for a criminal breach of the law relating to exactly the same facts, due to the onerous interpretation placed on the duty of the reasonable practicability.

Whilst any prosecution must satisfy the public interest test and there are documents, such as the HSE explanatory note “Striking the balance between operational and health and safety duties in the Police Service”, that give guidance on the duties of organisations in such circumstances, these informal assurances do not necessarily provide the certainty that are essential for businesses and insurers to engage in activities that fall into the categories covered by the Bill.

The approach taken by the Bill makes clear that criminal and civil interpretations of the law on safety are drawing further apart, businesses need to understand that their potential liabilities are not just limited to civil claims when considering what risks they should consider acceptable.

If prosecuted for a health and safety offence, businesses and individuals can face unlimited fines. Individuals can also face prison terms of up to two years. Prosecutions to date include charities, hospitals, police forces and police officers, demonstrating that an overall aim to do public good is not a defence to prosecution and will depend on the specific facts of every case.

This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

Paul Matthews

Partner - Head of Regulatory (Yorkshire and North East)

I am a Partner in the Regulatory team and a corporate defence specialist who provides up-front regulatory compliance advice and representation to businesses and senior managers in relation to investigations and prosecutions by regulatory bodies.