New Heroism Bill to protect employers from risk takers a gesture

New legislation that aims to reassure “good samaritans”, such as voluntary youth workers and first aiders, that they will not be successfully sued for accidents that happen while they are acting “for the common good” has been unveiled in today’s Queen’s Speech (4 June).

The changes are also intended to help protect small businesses with good health and safety procedures when an employee is injured through their own actions.

The Heroism Bill, which is expected to come into effect in 2015 and will apply in England and Wales, will require judges to give weight to three factors in negligence cases: first, whether the defendant was doing something “for the good of society”, such as volunteering, leading a school trip, or clearing snow from a path; second, whether they were acting in a “generally responsible way” and had planned the activity carefully; and third, whether they were “acting in an emergency”.

To be found negligent under existing law, a defendant must be shown to have breached a duty of care. The court looks at whether the defendant took reasonable care in the circumstances against an objective test (“the ordinary and reasonable person”).

Under the Compensation Act 2006, in deciding whether the defendant took reasonable care, the courts can already consider the social value of the activity and the need not to discourage others from undertaking similar actions.

The Heroism Bill will not change this framework but, the government said, will reinforce to the courts that they must consider the wider context of the defendant’s actions before reaching a conclusion on negligence.

Writing on the ConservativeHome website, justice minister Chris Grayling said where an employer has proper training and safety procedures and an employee injures themselves by a “stupid” action, “common sense says that the law should not simply penalise the employer for what has gone wrong”.

Mark Tyler, of law firm Salutaris Legal, said the change looked like a “gesture” by the government, pointing out that the Compensation Act’s changes had not swayed any judgments as the judiciary already consider context under common law.

Tyler said the Bill “won’t have any leverage”, and would not deter lawyers from bringing negligence claims against employers.

“If the government really wanted to make a change in the law it would have to do something drastic like redefining the duty of care,”  he added.