By introducing the legislation, the Government hopes to dispel fears around the UK’s compensation culture, however this is a contentious issue in itself as it is somewhat debatable that we actually have a compensation culture; statistics show that workplace claims have reduced by half over the last decade (183,342 claims in 2002-2003 compared to 91,115 claims in 2012-2013), although the public’s perception of a compensation culture certainly still exists. Lord Young, in his ‘Common sense Common Safety’ report stated, The problem of the compensation culture prevalent in society today is one of perception rather than reality.
The Act is made up of just four short clauses setting out how the courts should consider ‘context’ in negligence and statutory duty of care claims. It requires that the courts give consideration to the following factors:
- Was the person acting for the benefit of society?
- Has the person demonstrated a predominantly responsible approach towards protecting the safety of others?
- Was the person acting heroically by intervening in an emergency to assist a person in danger?
The Act is vague and does not actually change the overarching legal framework; instead it simply directs the court to consider the above factors in assessing whether or not a defendant has demonstrated reasonable duty of care. Furthermore, the requirement is for judges to give ‘consideration’ to those factors; there is no indication as to what weight, if any, will be placed on them.
The Bill has been subject to much ridicule by MPs and Lords during its journey through Parliament and has been subjected to various amendment proposals:
- Lord Pannick launched a scathing attack on the Bill saying that in 40 years of studying law he could not remember, a more pointless, indeed fatuous, piece of legislation than clause 2 of this Bill, with the possible exception of clauses 3 and 4 of this Bill.
- Labour called for the removal of the responsibility clause but were unsuccessful;
- Peers called for the withdrawal of the heroism and responsibility clauses but their proposals were defeated;
- Lord Lloyd of Berwick proposed that the Bill be withdrawn because it is of no importance at all as three of the clauses are already covered by Section 1 of the Compensation Act 2006.
The Government agreed to tweak the Bill by changing the wording of the responsibility clause from generally responsible approach to predominantly responsible approach and also removed part of the heroism clause referring to a person acting without regard to their own safety following concerns expressed by St John’s Ambulance and the Fire Brigades Union.
Lord Lloyd of Berwick also challenged the Government on using legislation in order to change public perception. The purpose of legislation is to make law that can be enforced in the courts. It is not to send out Government messages, however well intentioned.
Potential issues in practice
There is the potential for courts to face some difficult questions due to the Act being so brief and somewhat vague. Judges will have to interpret the factors and what they mean, for instance what do they include and exclude? The factors potentially have a very wide scope and could lead to confusion, E.G. Does clause 2 ‘for the benefit of society’ include the public sector? Does clause 3 ‘predominantly responsible’ apply to employers that introduce some health and safety measures, and how is ‘predominantly’ measured? How do we determine clause 4 ‘heroism’, what actions or situations define a hero(ine)? We will have to wait for these issues to pan out, but there is the potential for future judicial interpretations to vary greatly.