SOMETHING MUST BE DONE

Recent Legislative Contributions to the Common Law

Lincoln’s Inn
His Honour Judge Alan Saggerson
County Court at Central London
30 October 2018

1. The following general sources will be helpful. Further sources are given at the
end of this Speaking Note.
 Charlesworth & Percy: Negligence 14th Edition 2018 Chapter 8.
 Clerk & Lindsell: Torts 21st Edition 8-144.
 N v Agrawal (Stuart-Smith LJ) [1999] PNLR 939 at 943.
 Sutherland v Hatton (Hale LJ) [2002] PIQR at P251.
 Donoghue v Stevenson (Lord Macmillan) [1932] AC at 612.
 The Snail and the Ginger Beer: Chapman (Wildy’s) 2013.
 Bad Law: Philip Johnston (Constable) 2010.
 The Rule of Law: Bingham (Penguin) 2011.

2. It may or may not be apparent that the use of the word “contributions” in the
title of this piece is not intended to be complimentary.

3. I am going to focus first on the Standard of Care in Negligence actions. Then

give an example from the criminal law. As I proceed I will introduce you to 3
recent statutory examples of the “Something Must Be Done” variety.

4. These examples illustrate at least 5 things.

 First – the counter-productive dangers of statutory intervention – if it’s

not broken – don’t fix it.
 Secondly, my example, I hope, underline the masterful fluidity of the
common law.
 Thirdly, ignorance on the part of our legislators about the general law
and how it works.
 Fourthly, a law that is ignored, must be a bad law.
 Finally, if different case results are required by legislators to reassure
the public and encourage social participation then they should have the
courage to change the law.

5. Counter-productive? Because (a) a false impression is created that with the

wave of the statutory wand all ills might be cured (and thus bring law-makers
 and laws into disrepute); and (b) uncertainty is created where none previously
existed, or the unintended consequences take us in a direction nobody
wanted.

6. Fluidity? By unnecessary intervention, legislators unwittingly demonstrate

their own powerlessness in the face of the more flexible common law. This
could be a positive thing if the lesson was ever learnt.

7. Ignorance? What is worse? (a) The apparent lack of political knowledge

about how the law functions in cases up and down the country every day or (b)
the use of Parliamentary time and energy to advertise a political point in order
to gain a few tabloid headlines?

8. Ignored? The legislation I am focusing on is routinely ignored.

9. The Standard of Care. Once the existence of a duty of care is

acknowledged; reasonable care must be exercised. So, the next equally
important question is this. What does reasonable care demand in the
circumstances of a particular case or category of cases? The answer lies in
the balancing of a large number of overlapping factors. The comparative
importance of these factors can and does change over time.

 The seriousness or magnitude of the risk

 The likelihood of damage and its gravity
 Cost
 Practicality
 Common practice & common knowledge
 Resources
 Context: Emergency reactions; sports activities; social utility &
desirability
 History

10. Enter stage left: The Social Action, Responsibility & Heroism Act
2015. This piece of legislation is best summed-up in a single four-letter word
used by the Coalition Government’s then recently resigned Attorney General =
“Tosh”. He beat the former Solicitor General in his economy by one letter:
“Silly”. In fact there are two approaches to this legislation – one is that it is
useless and unnecessary; the other is that it is useless because it does not go
far enough.

11. (1) This Act applies when a court, in considering a claim that a person was
negligent or in breach of statutory duty, is determining the steps that the
person was required to take to meet a standard of care. (2) 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. (3) 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. (4) 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.

12. Despite the fact that this Act has been in force for 3 years and is expressed in
mandatory terms I have not yet encountered one pleading that refers to it and
I can find no mention of the Act in any reported case.

 I am not the first to observe that it is difficult to see what this Act is
designed to achieve. What’s the point? Or how is it supposed to work?
 Obviously, the Court MUST have regard to the 3 factors irrespective of
whether any of the parties raise them.
 In what sense must the court “have regard to” these factors? Is there to
be a cut-and-paste mantra in every judgment. Is it the common law’s
equivalent of the Public Sector Equality Duty; or the ridiculous charade
in criminal sentencing where the Judge needs to say: …
 I have devised some templates designed to cover all possibilities. E.g. I
am entirely satisfied that there was nothing heroic about your actions
when you ran over the pensioner on the zebra crossing neither was
there anything responsible (predominantly or otherwise) about your
lack of concentration; and whatever social utility there may be in
reducing the financial burdens on the state given it’s responsibility for
old age pensions I am satisfied this was not your intention.

13. I thought Hansard might provide some answers regarding the purpose aof this
Act and the underlying pollical intentions. The minister (not the Secretary of
State for Justice) responsible for introducing the Bill on its Third Reading
said:

This is an important Bill

It will reassure ordinary hard-working people who have adopted a
generally responsible approach towards the safety of others during the
course of an activity that the courts will always consider the context of their
actions in the event that something goes wrong and they are sued.

The Bill will help all those hard-working individuals, organisations and
small businesses who do the right thing and adopt a responsible approach …
by ensuring that that is taken into account by the court in the event of a
claim … and give confidence to resist [claims].

[It] will help to foster an environment of civic mindedness and promote

volunteering.
 [It will reassure] the public that if they act heroically by selflessly
intervening to provide assistance in an emergency, that will be taken into
account should a claim be brought against them.

14. There are number points of note.

 Apparently (according to the minister), the Act is only intended to
apply if you are ORDINARY.
 Secondly, you must also be HARD-WORKING.
 Mercifully neither of these is a precondition in the Act itself.
 No definition or guidance of what a “responsible approach” is.
 In want way is civic mindedness to be engaged and what is it?
 No definition of heroism.

15. Even at the time, the Bill was not well received in the House. Sir Edward
Garnier (former Solicitor General) said – I have a horrible suspicion that if
the Bill becomes an Act it will be the subject of derision and confusion … or it
will fall into disuse.

16. HM Loyal Opposition was represented by Sadiq Khan MP: This [Bill] treats
the House with utter disrespect. Nevertheless, the Secretary of State will
receive one major accolade: his Bill will join that select club of the most
useless pieces of legislation ever – not an honour to be proud of.

17. Case Studies:

 Social Action (section 2) – if a police dog kills a householder in the

course of a drugs search in the back garden – the police action is
undoubtedly for the benefit of society – but in what way does this Act
assist the court or inform the public of the outcome of any legal action?
If the Guide Hut floor is riddled with splinters, is the Guider absolved
from potential liabilities under the OLA because on the whole running
voluntary groups is of benefit to society? The purpose of this section is
to address the “fire hose” example. How does it engage in clinical
negligence cases?

 Responsibility (section 3) – the court must have regard to whether

the alleged tortfeasor demonstrated a predominantly responsible
approach to the safety of others. This, predominantly speaking, defeats
me. A driving example? You ran over the child on the pavement but on
the whole your driving was predominantly responsible that day, so you
are no liable. Or, you ran over … but you tried very hard not to.
  Heroism (section 4) – Note the difference between intervening in an
emergency (not covered by the Act) and those circumstances where the
Act applies, namely, HEROICALLY intervening in an emergency. One
of the dictionary explanations of heroism is “lionheartedness”. I wish
Parliament had used that instead. But substituting alternatives (valour;
courage) does not take us much further. The line between heroism and
recklessness (if it exists at all) is a very thin one; but if one acts with
courage to save one person and in the process one damages someone
else, that “someone else” cannot surely be deprived of a remedy simply
because the first person was saved – and if that is not the inevitable
result, then what is the point of section 4?

18. In the interests of balance. Consider what has been said in support of the Bill.

Generally, the laudable intentions underpinning passage of the Act appear to

be succinctly articulated by Lord Faulks as follows:
“This Bill will contribute to an increasing reassurance which I hope the
public has and that volunteers have in approaching life, which inevitably has
many risks. ... This debate has divided roughly—only roughly— between
lawyers who are hostile to the Bill and nonlawyers who seem rather more,
with exceptions, in favour of it. We, as lawyers, should reflect a little on the
occasional disconnect that exists not only between politicians and the public
but sometimes between lawyers and the public. Should Parliament be
legislating in this fashion at all if it is simply sending a message? I entirely
accept what my noble friend Lord Hurd said about the fact that one should
be very cautious indeed before legislating simply to send a message. But, on
the other hand, I suggest that it would be idle to pretend that part of what we
do is not conveying an important message”.

One aim of the Act was to reassure volunteer sports coaches, social group
organisers & supervisors and first aiders.
Significantly, section 1 of the CA 2006 was also intended to send a strong
message to encourage volunteering, and although perhaps well intentioned,
on balance, the Act is unlikely – at least from a strict legal perspective – to
better safeguard amateur or professional sports coaches and instructors from
the emerging prospects of legal liability.

19. It is also worth considering what other jurisdictions have achieved in this
context. See Part III of the Civil Liability (Miscellaneous Provisions) Act 2011
(Republic of Ireland). This Act covers the actions of “Good Samaritans”
(defined) and “Volunteers” (also defined). It confers immunity – Good
 Samaritans and Volunteers “shall not be personally liable” when they
intervene.

 Note: immunity extends only to personal liability.

 None exhaustive examples are given – first aid; using a defibrillator &
transporting someone for medical attention.

20. It’s time to introduce the Big Sister of the 2015 Act – the Compensation Act
2006.
A Court considering a claim in negligence or breach of statutory duty MAY,
in determining whether the defendant should have taken particular steps to
meet the standard of care (whether by taking precautions or otherwise) have
regard to whether a requirement to take steps might –
(a) Prevent a desirable activity from being undertaken, or
(b) Discourage persons from undertaking functions in connection with a
desirable activity.

21. This legislation shares many of the inherited characteristics of its younger
sister. Their parents are: the Compensation Culture and the tabloid press.
Both misfire badly for much the same reasons. The 2006 Act is optional.
Many considered it an unnecessary solution to a non-existent problem.

22. The 2006 Act, being older, has featured in reported cases (on standard of
care) once or twice. See: Hopps, (n 11); Uren v Corporate Leisure (UK)
Limited [2010] EWHC 46 (QB); Uren v Corporate Leisure (UK)
Limited [2013] EWHC 353 (QB); Wilkin-Shaw (n 2); Blair-Ford(n
8); Humphrey v Aegis Defence Services Ltd [2014] EWHC 989 (QB).

23. Scout Association v Barnes [2010] EWCA Civ 1476 [34] (Smith & Ward LJJ;
Jackson LJ dissenting). Injury sustained during a game played in the dark.
The Association was liable in negligence – so held the trial judge the majority
in the Court of Appeal. The focus of the trial judge and the majority in the
Court of Appeal was on the particular activity engaged in that gave rise to the
accident (not an especially desirable social activity in itself, or so the majority
thought), rather than the broader benefits of the desirability of social clubs for
children and teenagers.

24. Neil Partington (Liverpool Law Review) deals with the issue of “focus” in this
way. “When Uren v Corporate Leisure (UK) Limited was initially heard at
first instance, the ‘It’s a Knockout’ type relay race in which the claimant was
seriously injured, involving an inflatable pool and, part of an RAF Health
and Fun day, was described by Field J as ‘an enjoyable game, in part because
of the physical challenges it posed to contestants. The risk of serious injury
was small. In my judgement, neither CL nor the MOD, was obliged to neuter
the game of much of its enjoyable challenge by prohibiting head first entry.
In contrast, when considered by the Court of Appeal, Smith LJ made clear
that she ‘personally would not have assessed the social value of this game in
quite such glowing terms as did the judge’. When conducting the re-trial,
 Foskett J’s sensitivity and regard for the socially desirable merits of the
particular activity, and importantly, an awareness and appreciation of the
wider implications for activities that may be regarded as socially valuable,
generated a more glowing assessment of the social value of the game than
Field J. Foskett J highlighted that:
The focus of the question is upon the particular game in which the
Claimant was injured. I will, of course, address that, but it does
seem to me that the issue needs to be seen in a slightly wider
context. As to that wider context, I would think that there would
be no disagreement from any quarter: it is that an event such as
the event in which this tragic accident occurred is of great social
value, not just in a Services setting, as this one was, but in other
settings too. Whilst not every individual might enjoy every aspect
of a “Fun day”, there is undoubtedly an opportunity on such an
occasion for fun and laughter, often at the expense of others, for
letting go and losing inhibitions and bonding with other
colleagues, friends and possibly strangers in a light-hearted, but
competitive setting. Since the day with which this case is
concerned was in a Services setting, the value is enhanced in a
number of ways.

In short, the setting of the standard of care for defendants delivering or

organising an activity of ‘great social value’, ‘immense social value’, or
viewed as ‘obviously desirable’, may justifiably be less demanding than an
equivalent activity regarded by the court as merely ‘a source of fun’. This
seems reasonable. Nonetheless, there appears considerable difficulty and
uncertainty in the weight attached to desirable activities by the courts.
Arguably, some judges may be responding to section 1’s tacit invitation to
heighten the breach barrier in the affirmative. Others in the negative.”

25. The fact of the matter is that the solutions to the perceived, so-called
compensation culture probably lie in other areas (and Parliament has its role
to play). These approaches involve changes to the law – not merely
exhortations to apply the law in a particular way.

 Adopting the Irish solution

 Substituting a different standard (gross negligence?)
 Claimants should have a costs stake in litigation.
 Fundamental dishonesty in qualified one-way costs shifting
 Increase in the small claims track limit for personal injury cases –
making it more cost-effective to defend claims.

26. The answer also lies partly in the hands of the insurance industry. Fighting
more cases (irrespective of costs consequences); and also in the hands of the
judiciary – be less demanding on the standard of care. A study of comparative
outcomes nationwide might be instructive. A bigger role for early neutral
evaluation has never been satisfactorily anchored into the system.
 27. Some early neutral evaluation examples: Holiday Jetty; Marble Arch.

28. The legitimate aim of the 2006 and 2015 Acts? First Aid in Schools. One
legitimate aim is to reassure the public – the problem is that such reassurance
is completely absent.

29. Finally – an example in the context of the criminal law. Self Defence. The
Crime and Courts At 2013 (section 43) altered the common law of self defence
(now codified in the Criminal Justice & Immigration Act 2008).

 Previously self defence demanded that a person who honestly believed

themselves to be under attack or threat of attack could use reasonable
and proportionate force to repel the honestly perceived threat.
 Now, where the defence is raised by a defendant arising out of action
taken against burglars, the force used does not have TO BE
REASONABLE provided the force is not grossly disproportionate.

30. One of the parents of this statutory intervention is the tabloid press. Multiple
stories about defendants being convicted of serious assaults BY JURIES. The
circumstances were often retaliation or punishment beatings – not self
defence.

31. The issue is the same as that which arises under the 2006 and 2015 Acts.
What in all the circumstances does reasonable behaviour demand of an
individual in a particular set of circumstances when looked at in the context of
a broader social setting.

32. Juries can always be trusted to get it right. Example: Self Defence in
Woolwich.

33. Drawing the threads together.

Some comparative examples from Ireland & Australia

The Irish Model

Part III – Civil Liability Act 2011
The Act (Part III) provides for amendments to provisions of the Civil Liability Act
1961. The main provisions of the Act include those intended to amend the law
relating to civil liability for acts of “good Samaritans” and “volunteers”. It addresses
recommendations of the Irish Law Reform Commission to place the civil liability of
"good Samaritans", volunteers and volunteer organisations on a statutory footing
and to provide legal clarity for persons who assist in an accident or emergency and
those who engage in voluntary work for the benefit of society. Section 4 (Liability for
negligence of good Samaritans, volunteers and volunteer organisations) inserts a new
Part IVA (sections 51A to 51G) into the Civil Liability Act 1961 to provide for the civil
liability of good Samaritans, volunteers and volunteer organisations.
Section 51A provides for the interpretation of key terms in this Part. Subsection (1)
includes a definition of a "good Samaritan", as a person who provides assistance,
advice or care to another person in an emergency and without expectation of
payment or other reward. "Voluntary work" means work done for a charitable
purpose; or for the purpose of providing assistance, advice or care during or in
prevention of an emergency; or for the purpose of sport or recreation. A "volunteer"
is a person who does work authorised by a volunteer organisation, with no
expectation of payment other than reimbursement for expenses. A "volunteer
organisation" is a body formed not for profit, whose purpose includes, but is not
confined to, the doing of voluntary work. Subsection (2) provides a definition of
"assistance, advice or care" which includes, but is not limited to, the administration
of first-aid; the use of an automated external defibrillator (AED); and the
transportation of persons from the scene of an emergency to a medical facility.
Section 51B provides that the provisions in this Part will apply only to causes of
action accruing after the commencement of the Part. Section 51C provides that the
provisions in this Part are not applicable to the negligent use of a mechanically
propelled vehicle in a public place within the meaning of the Road Traffic Act 1961 to
the effect that this liability will continue to be covered by motor insurance. Section
51D provides for the protection of persons acting as good Samaritans from personal
liability for negligence in giving assistance, advice or care. Persons who are the cause
of an emergency may be considered good Samaritans where they offer assistance,
advice or care thereafter. Persons who act in bad faith or with gross negligence, as
well as persons with an existing duty of care, are excluded from legal protection from
liability.
Section 51E provides for the protection of persons carrying out voluntary work
from personal liability for negligence. Protection from liability is not 3 available to
those who act in bad faith or with gross negligence or to those who act outside the
scope of the work authorised by the volunteer organisation or contrary to the
instructions of the volunteer organisation concerned. A volunteer organisation is
prevented from gaining the protection of an indemnity given by a volunteer against a
liability it might otherwise incur as a result of the negligent actions of its volunteers.
Section 51F provides that the protections made available in this Act are additional
to any protections existing in common or statutory law. Section 51G provides that
while the Act sets out an ordinary standard of care for volunteer organisations, the
courts shall take into account the benefits accruing to society as a result of the
organisation's work in determining whether it is just and reasonable to find that the
organisation owes a duty of care.
Other jurisdictions have ventured into this territory before.
Australia – New South Wales

CIVIL LIABILITY ACT 2002 - Section 57

Protection of good Samaritans
(1) A good Samaritan does not incur any personal civil liability in respect of any
act or omission done or made by the good Samaritan in an emergency when
assisting a person who is apparently injured or at risk of being injured.
(2) This section does not affect the vicarious liability of any other person for the
acts or omissions of the good Samaritan.

These provisions were introduced following the Ipp Review (2002) into the Law of
Negligence even though the Review did not recommend that any such legislation was
necessary.

Australia – Victoria

WRONGS ACT 1958 - Section 31B

Protection of good Samaritans

(1) A good Samaritan is an individual who provides assistance, advice or care

to another person in relation to an emergency or accident in circumstances in
which—

(a) he or she expects no money or other financial reward for providing the
assistance, advice or care; and

(b) as a result of the emergency or accident the person to whom, or in

relation to whom, the assistance, advice or care is provided is at risk of death or
injury is injured …

(2) A good Samaritan is not liable in any civil proceeding for anything done,
or not done, by him or her in good faith—

(a) in providing assistance, advice or care at the scene of the emergency or

accident; or

(b) in providing advice by telephone or by another means of

communication to a person at the scene of the emergency or accident.

(3) Subsection (2) applies even if the emergency or accident was caused by an
act or omission of the good Samaritan.

(4) Subsection (2) does not apply to any act or omission of a good Samaritan
that occurs before the assistance, advice or care is provided by the good Samaritan.

South Australia enacted similar provisions in 1936.

 FURTHER SOURCES & CASE LAW

1. Social Action, Responsibility and Heroism HC

2015, https://www.legislation.gov.uk/ukpga/2015/3/introduction/enacted.
2. Ministry of Justice, ‘Courts to recognise good intentions of volunteers and small
businesses’, 12 February 2015, at: https://www.gov.uk/government/news/courts-to-
recognise-good-intentions-of-volunteers-and-small-busineses
3. Ministry of Justice, ‘Grayling: law must protect everyday heroes’, 2 June 2014,
available at: https://www.gov.uk/government/news/grayling-law-must-protect-
everyday-heroes
4. Aimee Meade, ‘Jo Pavey: “Volunteers enabled me to fulfil my dream in athletics”’, 17
October 2014, theguardian.com, at: https://www.theguardian.com/voluntary-sector-
network/2014/oct/17/-sp-jo-pavey-volunteers-enabled-me-to-fulfil-my-dreams-in-
athletics
5. Sport England homepage: https://www.sportengland.org/sport-you/volunteers-and-
coaches/
6. Sport and Recreation Alliance: https://www.sportandrecreation.org.uk/lobbying-
and-campaigning/sport-research/UK-fact-figures
7. UK Parliament, Social Action, Responsibility and Heroism Bill (HC Library Research
Paper s 14/38, 2014), available at: https://www.parliament.uk/briefing-
papers/RP14-38/social-action-responsibility-and-heroism-bill
8. S Greenfield, ‘Law’s impact on youth sport: should coaches be “concerned about
litigation”?’ (2013) 2(2) Sports Coaching Review 114, 121.
9. J Anderson, Modern Sports Law: A Textbook (Hart, 2010) 249; R Heywood and P
Charlish, ‘Schoolmaster Tackled Hard Over Rugby Incident’ (2007) 15 Tort Law
Review 162, 171.
10. Compensation Act
2006: https://www.legislation.gov.uk/ukpga/2006/29/pdfs/ukpga_20060029_en.
pdf.
11. Hansard HL vol 756 col 1545 (4 November 2014), per Lord Faulks, available at
https://www.publications.parliament.uk/pa/ld201415/ldhansrd/lhan51.pdf
12. N Poole, ‘Heroes and Villains’, 3 July 2014, available
at: https://nigelpooleqc.blogspot.co.uk/2014/07/heroes-and-villains.html?spref=tw
13. Bolton v Stone [1951] AC 850.
14. Tomlinson v Congleton BC [2003] UKHL 47.
15. Scout Association v Barnes [2010] EWCA Civ 1476 at [29] per Jackson LJ.
16. Sutton v Syston RFC Limited [2011] EWCA Civ 1182 at [13].
17. Blair-Ford v CRS Adventures Limited [2012] EWHC 2360.
18. See https://www.tentors.org.uk/thechallenge/aboutthechallenge/
19. Wilkin-Shaw v Fuller [2012] EWHC 1777. Importantly, although Owen J found
section 1 of the Compensation Act 2006 to be engaged, he continued (at [46]), “but it
does not seem to me that section 1 adds anything to the common law. Some risk is
inherent in many socially desirable activities. The Ten Tors event, and the training
that those who participate must undergo, is a classic example”
20. Watson v British Boxing Board of Control [2001] QB 1134. Michael Watson
successfully sued the British Boxing Board of Control for providing inadequate
medical equipment and assistance at ringside when he fought Chris Eubank on 21
September 1991 for the World Boxing Organisation Super-Middleweight title at
Tottenham Hotspur Football Club in London.
21. See generally, J Anderson, ‘Symptom Free: Will the Law Strike a Knockout Blow on
Concussion in Rugby?’, LawInSport, 5 March
2015,at https://www.lawinsport.com/articles/item/symptom-free-will-the-law-
strike-a-knockout-blow-on-concussion-in-rugby?category_id=112
22. Uren v Corporate Leisure (UK) Limited [2013] EWHC 353 at [195] per Foskett J
recognising the “great social value” of an RAF “Fun day”; Scout Association v
Barnes [2010] EWCA Civ 1476 at [32] per Jackson LJ (dissenting). Also see, M Lee,
‘Safety, regulation and Tort: Fault in Context’ (2011) 74(4) Modern Law Review 555.
23. litigationfutures, ‘Government reforms receive Royal Assent but implementation
timetable kept under wraps’, 13 February 2015, available
at: https://www.litigationfutures.com/news/government-reforms-receive-royal-
assent-implementation-timetable-kept-wraps
24. Explanatory Notes to the Social Action, Responsibility and Heroism HC Bill (2014-
15) [9] para 5, making plain that the Bill does not change the overarching framework
of the law of negligence.
at: https://www.publications.parliament.uk/pa/bills/cbill/2014-
2015/0009/en/15009en.htm
25. Law Reform Commission of Ireland, Civil Liability of Good Samaritans and
Volunteers (LRC 93, 2009), para
 4.81.at: https://www.lawreform.ie/_fileupload/Reports/Report%20Good%20Samar
itan.pdf (last visited 17 March 2015).
26. N Partington, ‘Legal liability of coaches: a UK perspective’ (2014) 14(3-
4) International Sports Law Journal 232.