Examination of Witnesses

Social Action, Responsibility and Heroism Bill – in a Public Bill Committee at 2:00 pm on 4 September 2014.

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John Spencer, David Johnson, Simon Dewsbury, and Stuart Henderson gave evidence.

Q 38

Photo of Adrian Sanders Adrian Sanders Liberal Democrat, Torbay

We will now hear oral evidence from John Spencer, president of the Association of Personal Injury Lawyers, David Johnson, president of the Forum of Insurance Lawyers, Simon Dewsbury, solicitor at Thompsons Solicitors, and Stuart Henderson, managing partner of personal injury, Irwin Mitchell. For this session, we have until 4 o’clock. Could the witnesses please introduce themselves, for the record?

John Spencer: John Spencer, president of the Association of Personal Injury Lawyers.

David Johnson: David Johnson, president of the Forum of Insurance Lawyers.

Simon Dewsbury: Simon Dewsbury, solicitor at Thompsons Solicitors.

Stuart Henderson: Stuart Henderson, head of personal injury at Irwin Mitchell.

Q 39

Photo of Chris Evans Chris Evans Labour, Islwyn

Thanks for coming today. Mr Johnson, I see you are a Tottenham Hotspur fan. You look rather upbeat, considering. I was doing some research last night and I came across a case where somebody drowned because the emergency services could not make a decision to cut his leg off when he got stuck in a drain during floods. He drowned in front of them. I think that a lot of people remember that case. Do you think that an ordinary lay member of the public would be deterred from helping that man for fear of being sued, or do you think it is more to do with the emergency services, which have a duty of care to the public? Who is this Bill likely to help? Is it going to be the ordinary person on the street who acts on the spur of the moment, or will it be the emergency services? Who is it directed at?

David Johnson: On the wording there, potentially it has the ability to affect both. There is a particular problem with public perception and, with this Bill addressing heroism, but also acts of social responsibility, having looked at the case law, I think the social responsibility is the predominant point. If you look at some of the case law involved, there are some fairly extreme examples, where decisions by the courts—often fairly senior courts—about what does or does not constitute negligence are, to some extent, out of kilter with public perceptions of culpability. We see the cases in the Court of Appeal and the House of Lords, and the senior courts, reported and getting publicity, but I think that belies a lot of cases in the lower courts that do not necessarily get that publicity but have the same sort of problem. That then steers public perception.

It was interesting to hear the HSE representative talking about the myth-busting pages on their website. In the space of less than four years, there have been some 311 reported incidents on that website. He gave some comical examples about throwing custard pies, and that sort of thing, but there are examples of volunteer work being deterred; for example, people sweeping up glass from Saturday night revellers having their brooms and what have you taken away. There are examples of volunteers to hack back vegetation on public paths to maintain public gardens not being allowed to do so, and nursery school trips to allotments being banned. All of  that stems from the perceptions that come out of those court cases. Moreover, the 311 cases are the ones that got reported. They are dependent on people coming across that sort of thing and knowing that there is an HSE myth-busting website that they can go to. I imagine there are numerous other instances where the HSE is not notified, and I believe that there is genuinely a problem of court decisions that are out of kilter with public thinking then influencing the behaviour of the public to the detriment of society. In that respect, I think there is a problem.

It must be acknowledged that you have got to have rules and regulations to promote health and safety; that is not only sensible, but absolutely essential. However, that has to be balanced with preserving public freedoms that allow people to engage in that sort of socially beneficial activity. As things stand, I think that the balance is somewhat wrong. I can give examples of cases if you want me to do so.

Q 40

Photo of Chris Evans Chris Evans Labour, Islwyn

The Bill will not fundamentally change the law. Would you say that kids have not been able to go on outings because of a lack of—I do not like using this word—common sense on behalf of the judges in the cases that you have mentioned, and that has had a detrimental effect on public perceptions through the media and other outlets?

David Johnson: The decisions often relate to very serious injuries, and we expect judges to sit there in a robotic sense, be entirely detached from that sort of thing and give very objective decisions. I do not think that that is an easy task, and I think that sometimes you get decisions that do not align with public perceptions of common sense. There was a case involving the Scout Association. A young lad playing a game in a scouting hall injured himself, and the Scout Association was found liable for that. In another case—a Scottish case—a golfer hit a bad shot, cried “fore”, and everyone ducked save for one person who turned round and looked for it. That individual was struck in the face and he succeeded in his personal injury claim. It is interesting that in such circumstances the individual gets sued and is found liable, and the club is found liable for not putting signs up around the golf course saying that if you hear the word “fore”, you should duck.

Such cases are out there. The golfer in question lost an eye. One has the impression sometimes that a severe injury like that perhaps drives an outcome that might not have come about if it was a more minor injury, but it has a big effect on society in the terms that we are talking about and also for the people involved. The golf course provides a facility for the public to use for recreation. Assuming it had insurance, the insurance premiums will undoubtedly go up as a result of the incident. The golfer was held 20% liable for an award that amounted to £400,000. I cannot say whether he was insured, but people looking at that sort of situation may feel deterred from getting involved in such activity if that is the consequence that can come out of it.

Q 41

Photo of Chris Evans Chris Evans Labour, Islwyn

I play golf in a fashion. I have a massive six-inch drive. I would not say that hitting a golf ball is particularly heroic. You obviously have a lot of experience, and this is a question for all the panel. Is there a specific case that you can think of where someone has undertaken a heroic act and been sued?

John Spencer: No. I would refer back to the Second Reading in July, where Chris Grayling admitted that the Bill does not rewrite the law in detail or take away the discretion of the courts. It is not a Bill about changing the law; it is seeking to legislate for perception. In my view—I thought the evidence of the firefighter representative was extremely persuasive—this is a two-sided coin: one man’s heroic act is another man’s reckless act. Where do you draw the line? One could point to heroic motivation that is not accompanied by the necessary skill, training and care being incredibly dangerous to encourage. So I would say there is a case for education, but not legislation—you should not be legislating to deal with perception.

Stuart Henderson: May I add to that? That is also where we come from. There is no evidence whatever to suggest that the Bill will change public perception. If you want an historical example of that, just look at the Compensation Act 2006, which the public have no awareness of. It is drafted in virtually an identical format to the Bill, and the courts have largely ignored it. When they have considered it, it has made no difference to the outcome of the case. In some cases—my friend David mentioned this earlier—section 1 of the Act was considered. The scout case, for example, was considered in the Court of Appeal. But it was still felt that, despite the desirable nature of the activity, the defendants had fallen well below the standard expected of them.

So, for us also, time would perhaps be better spent on education and joint initiatives by key organisations to get the message out there. It was interesting to see in some of the papers that the Association of British Insurers had put together a laudable document called “Celebrate! An ABI guide to planning an event”, which gives much more reassurance to the general public than any legislation is likely to about people’s potential liabilities if they decide to volunteer.

David Johnson: I sympathise with some of the points made regarding the Compensation Act, but, fundamentally, it is the decisions of the courts and the publicity around those decisions that drives the behaviours in the public arena. There is a need to change the law in that respect. While you can educate people, if you do not change the law, you are still going to have the same outcomes, and you are still going to have instances where legal decisions are perceived to be out of kilter with the public perception of culpability and common sense.

To come back on your comment about the golf course not being heroic, I accept that there are two aspects to the Bill. In terms of heroic acts, I struggled to find many examples of members of the public being deterred from acting in a heroic way. I came across one anecdotal piece about someone attempting to sue a woman for breaking their ribs during heart massage, but I was not able to find anything beyond that. But the Bill covers socially beneficial activity. Is maintaining a golf course—I ask you this as a golfer—something people should be deterred from doing?

Photo of Chris Evans Chris Evans Labour, Islwyn

You should see the way I play golf these days.

John Spencer: Other cases have been decided differently—a person hit by a cricket ball unsuccessfully claiming in terms of the injury in terms of a defence in terms of the social and public good. My point in raising that is that cases very much turn on their own facts. In fairness, the Minister understands that. He is not seeking  to change the law. The objectives that the Government set out in the Bill are laudable and should be supported. I would simply challenge whether this is the way in which to achieve the objective. David could come up with half a dozen cases, and I could come up with half a dozen cases the other way. These are all decided after a hearing before a judge, considering all the facts.

If we look at myth and reality, I point to Lord Dyson, Master of the Rolls, in his March 2013 lecture at the Holdsworth club on “Compensation culture: Fact or fantasy?”. I will not read out his speech, you will be relieved to hear, but he concluded that the compensation culture was fantasy, not fact—there is not a compensation culture, but there is a perception of it. My fear is that in trying to adjust one perception problem we create another. So we encourage recklessness, carelessness, lack of sufficient care for training and so on in aid of the laudable objectives set out in the Bill.

Q 42

Photo of Chris Evans Chris Evans Labour, Islwyn

The more evidence I hear, the more there seems to be what I would like to describe as a fish that is very slippery to get hold of. We all know the scenarios that people get into, such as people drowning and someone diving in to save them, then the person might get sued, or the one about the heart massage, when someone’s ribs got broken, and there was trouble about that. Would you say that, even though the aims of the Bill are laudable and supportable—I do not think that anyone would disagree with what is in the Bill—what we are looking for are words that are not there? We have not actually got hold of that slippery fish, we have not nailed things down with the Bill. Would you say that?

John Spencer: There is a real danger with this Bill that the arguments start to surround the meaning of words—

John Spencer: Far more than analysing the facts of specific cases. I would support the latter, but I would seek to avoid the former. What does

“the benefit of society or any of its members”

mean? What does “acting heroically” mean? How do we distinguish that from reckless behaviour and so on? This has grown up over centuries—the law of negligence and breaches of various statutory duties. We should halt and pause carefully before passing legislation that rather clumsily interferes with that rather delicate balance, and it is a balance, between not encouraging people to be reckless on the one hand, while not discouraging them from acting heroically and to the benefit of society on the other.

David Johnson: I would concur with that in some respects, in that I do think that the wording is open to interpretation. It leaves an awful lot to judicial discretion. It is appropriate that we should leave some judicial discretion there, on account of the fact that we cannot legislate for every scenario, but it does run the risk that, with too many ambiguities, as I think there are at the moment, we effectively create a piece of legislation that will fall into disuse.

I come back to the point that there is a problem there that needs addressing. As John has quite rightly pointed out, he can quote a good number of cases in which common sense has prevailed, the leading case being the Tomlinson case, which you may have been told about, but the point is that those cases have often been taken  all the way to the House of Lords before sense prevails; they are often pursued all the way to trial, creating significant financial exposure for the claimants, the people who fund their cases, and their lawyers in respect of no win, no fee cases. The fact that those cases are run all the way to the Court of Appeal and to the House of Lords, or the Supreme Court as it is now, belies the fact that the outcome is not clear from the beginning and that there is this potential for those cases to be determined otherwise. The Tomlinson case was ultimately dismissed, but the Court of Appeal allowed it. It should not be overlooked that in that case, which involved a young lad diving into shallow water at a public beach and sustaining life-changing and horrific injuries, he ultimately failed. Some would say that common sense prevailed there, but that beach was still bulldozed. That is what we are talking about; public facilities and socially beneficial activities being swept aside off the back of concerns about health and safety.

Stuart Henderson: The reality is, I am afraid, that new legislation just compounds this problem. Common law is pretty settled at the moment. We all know where we stand on this range of cases and what the common law is. The common law is flexible and fluid, and it develops. It is very fact-sensitive. If you introduce a new piece of legislation, all the lawyers around the country will be looking for opportunities to exploit that and to extend the interpretation of that law. David Johnson acts for insurance companies, which will be looking at how they can limit their liability with any new Act that comes in. What you have is another raft of litigation and developing law all the way up to the House of Lords when, at the moment, the law is reasonably settled.

Just on the social policy point, there is a concern. We all agree that we want to encourage volunteers and more people to commit. We definitely want to educate them about the risks if they do so, but there is also something about the signals that we send out to other communities. Is it right that we should be sending out a signal, for example, to parents whose children are going on a school trip that they are less well protected in law than if the family takes a holiday in Spain? Surely there must be parity there. Surely we do not want the negative social impact of parents saying, “Actually, we do not want to go on that trip, because we are not satisfied that we are sufficiently protected.” There is also a risk that the Bill sends a signal to voluntary organisations that health and safety is no longer as important as it was. We can send out mixed signals with this new legislation and, as I have said, the focus should be on education and working with key stakeholders.

Simon Dewsbury: It certainly should be. David mentioned other legislation going to the House of Lords. The Bill will mean that more cases go through litigation. There are too many things that are uncertain and too many untried definitions, and that is the sort of thing that leads to lawyers having to get judges to make decisions on new points of law. There are all sorts of points in the Bill that will make a significant difference to a number of cases.

In my view, clauses 2 and 4 are not likely to receive a lot of judicial attention, but clause 3, which is on responsibility, seems so widely and vaguely drafted that it will apply to a significant number of cases. Reading the press releases that have come out on that clause, it is apparently an attempt to reduce the perception of onerous  duties on employers, but I do not see that that will be the clause’s only effect. We can see all sorts of unforeseen situations coming from it.

The clause refers to

“the activity in the course of which the alleged negligence or breach of statutory duty occurred”,

and it seems to me that the vast majority of those will be road traffic accidents. Does that mean that when someone is driving and has an accident for which they were negligent, the court has to take account of whether they have acted responsibly for the rest of that journey? Say someone runs a red light and therefore gains a couple of minutes. They are then in an accident a couple of miles down the road. They have not driven responsibly. At the moment, the courts will say that that does not make any difference. They will specifically say that that is a fallacy of proximity. Now, the courts will have to take that into account.

The corollary of that is that in all those cases, it is an extra area of evidence and of law. Certainly in more serious cases, we will see that if the courts have to take account of it, further evidence will have to be taken into account. People’s tachographs will have to be looked at in lorry accidents to check whether or not someone was speeding elsewhere in the journey. You could say that that might inculcate a much more responsible attitude in all motorists; you could say—I suspect other people would—that that was another example of a war on motorists.

It seems to us that the legislation is going to be relevant in all sorts of unforeseen areas. It is certainly going to come up in employment accidents, where employers will have to demonstrate a generally responsible attitude, or it could be taken into account against them. It works both ways. It is going to increase significantly the potential for evidence in every case. It is going to increase the amount of work in litigation, as well as its costs. It could well increase the length of trials because it would have so many unforeseen consequences.

John Spencer: The most important facts around accident numbers come from the Compensation Recovery Unit statistics, which show a 3% reduction in the number of accident claims between 2012-13 and 2013-14. Motor claims have gone down by 5.89%. So claims have gone down, not up.

The other point I would make with regard to the voluntary sector is that last year a Cabinet Office press release made it clear that the steps the Government had taken had increased voluntary activity. I see the Bill as an unnecessary encouragement, bearing in mind the highly successful community engagement that the Government have achieved, and also bearing in mind the background of a very real risk of opening the door to reckless behaviour and people taking insufficient care when acting heroically. You cannot legislate for perception because you start to create another perception and run into an equal and opposite error. The answer to perception problems is education or training, not legislation that seeks to address a problem that self-evidently does not exist in reality, but is believed to do so by the people who form our society.

Stuart Henderson: I agree with my colleagues that clause 3 is the most worrying clause. Sitting here as lawyers, I think we would all say that we see a Pandora’s box of investigation activity in trying to assess its effect on individual cases—

Simon Dewsbury: Without hope coming out at the end.

Photo of Adrian Sanders Adrian Sanders Liberal Democrat, Torbay

May we move on to another question?

Q 43

Photo of Stephen Metcalfe Stephen Metcalfe Conservative, South Basildon and East Thurrock

My question relates to clause 3. I want to go back to our golfer. I am struggling to see how he was held personally liable, so in my view something must have gone wrong. If he acted with responsibility, was not negligent and cried “Fore!”—the standard call on a golf course that people should know means a ball has gone awry—surely that example shows that something has gone wrong. Clause 3 states that the court must take into account whether someone

“carrying out the activity in the course of which the alleged negligence or breach of statutory duty occurred…demonstrated a generally responsible approach towards protecting the safety…of others”.

Surely the general approach there would have been yelling “Fore!” on a golf course. Would the golf course also not have been liable if the court had taken some account of clause 3? It strikes me that the measure would remind people that, since in that particular case neither had acted negligently in my view, people must take some degree of responsibility but cannot cover every single eventually.

David Johnson: Having raised the case, may I come back to you on that? In that case, he was found to have been negligent through taking the shot too early.

I have to concur with what John said about the dangers of the vagaries of some of the Bill’s language, and what Stuart said about it creating courtroom battles and disputes over interpretation. Contrary to some of my colleagues, I feel that there is a definite need for the Bill. It is not sufficient to say that the law is fine as it is, because, as my examples show, there is a problem to be addressed. However, I concur that the language is not robust enough. In particular, the Compensation Act and the Bill both require the courts to “have regard to” the circumstances, whether they are socially beneficial activities, acts of heroism or whatever. As Stuart pointed out, in some of the cases I talked about, the Compensation Act was had regard to, but it had very little effect.

There is a need for the Bill. Parliament should give direction to the courts, which have got this far on common law, but the current position is unsatisfactory. It is appropriate that Parliament, as the legislator, gives direction, but the current language is not robust enough and gives rise to the possibility that the Bill, the intention behind which is worthy, will not have the desired effect when it is considered in courtrooms.

John Spencer: I part company with David in that I do not believe the present case law and the Compensation Act need amending. I can see an argument for amendment in terms of the public concerns about socially beneficial behaviours, and so on; that is a laudable objective. However, I am afraid that I do not agree with David, and nor does the Secretary of State, about changing the law. The Secretary of State does not seek to change the law; he seeks to address issues of perception and, if possible, encourage heroic and socially beneficial behaviours. I go back to what I have said several times: the answer to that is education and training, not legislation. If you accept what David says, which is that the law is wrong, fine. But until I heard David today, I had not heard that argument advanced by anyone.

David Johnson: Mr Grayling talked about sending a message to the courts, which is the worthy intention behind the Bill. A message is necessary, but the Bill must be more robustly worded than it currently is.

Simon Dewsbury: The problem is that most cases do not go to court, and very few cases go before a judge. The practical side of this is that it is going to cause enormous uncertainty in the law for both defendants and claimants. The practical effects will be significant well before it goes before a court. The trouble is that clause 3 takes away the connection between a negligent act and the standard of care. At the moment, you have to have a connection between the breach of duty and the causative act. In the Bill, as long as there is a generally responsible attitude, it can be something unrelated to the act.

At the moment, if somebody who has had an accident comes to me and says, “Mr Dewsbury, there is an awful health and safety culture at our factory. There are accidents all over the place,” I say, “That’s interesting, but I’m interested only in accidents that are just the same as yours, because those are the only ones that are relevant to things such as foreseeability.” If the Bill goes through, I shall say, “Right, I’ll pick up my pen. Tell me about them, because that means there’s a good chance we can show that this company does not have a generally good attitude to heath and safety.” If we can show that—we have been told that it is a strong message to the judges that the courts have to have regard to that—that may turn what was not a good case into a good case. The same will happen for defendants. They will be going back to the employers and saying, “We need as much information from you as possible about your generally responsible attitude, because the law says that you have to demonstrate it.” That is what the Bill says. Unforeseen consequences coming from that are going to make it very difficult for everybody, and that is before it gets to the judges.

David Johnson: I agree that some of the terminology needs clarification. There are vagaries in there that need to be addressed and will be argued over. The suggestion that there is going to be a significant or substantive increase in evidence before the courts, I do not believe to be the case. The suggestion that there will be an increased duration of trial length—I do not think that that is going to be the case. I am not sure that this has any substantial application in most RTA cases. There is a need for clarification, but I do not think that those sorts of problems are going to arise.

Stuart Henderson: The judiciary will say, I am sure, in relation to this Bill, as they have with the Compensation Act 2006, that all these issues are fully covered in the common law. It would be a shame for this Bill to go through and, after a flurry of litigious activity, just fall by the wayside like the Compensation Act—an Act that is there in the background but the judges continue, as they should, to apply the flexible principles of the common law.

David Johnson: Some of the judges and the judgments reflect the fact that there is a problem, and I think the judges would like some direction. Lord Hobhouse, in Tomlinson, said:

“The pursuit of an unrestrained culture of blame and compensation has many evil consequences and one is the interference with the liberty of a citizen.”

That, it seems to me, is exactly the problem that the Bill is looking to address. In the scouting case that I talked about, even the judge Lord Justice Ward, who found the Scout Association liable, made the comment that his decision might be interpreted as:

“an over-protective nanny state robbing youth of fun simply because there was some risk involved in the exercise”,

which

“emasculates those responsible for caring for our children and in so doing, enfeebles the children themselves”.

The rhetorical question “Where do we draw the line?” is asked in one of those cases, and that is the question here. There must be a balance and there must be health and safety rules, but where do you draw the line between prohibitive rules and permitting people to get on and engage in socially beneficial day-to-day activities? It strikes me that Parliament is the body that ought to answer that question of where you draw the line.

Stuart Henderson: How does the Bill ultimately help judges to draw the line? That is the concern. At the moment, they draw the line based on the facts before them and the established principles of negligence. What the Bill asks them to do is to take issues into account, which they do in any event under the current law. I do not see how that solves my friend’s problem.

John Spencer: The point I was going to make is that the quotes that David gave from various judgments demonstrate, in my view, the different judicial opinion expressed from time to time in different cases, which is right and proper and determined by the facts of the case as well as by the judges themselves being drawn from our society. I do not see it as a plea from the judiciary, which I have not heard anywhere, for legislation in this area. Indeed, I think there has been very little support from those in the law for this Bill. Lord Faulks was notably silent, I thought, in the debate I read in Hansard, as someone well versed in defending personal injury cases and an eminent QC.

Q 44

Photo of Andrew Slaughter Andrew Slaughter Shadow Minister (Justice)

I will start with golf, which seems to be the topic for the afternoon. There are two points from what you say, Mr Johnson. I was slightly surprised that you classed a golf course as something that exists for the benefit of society. That suggests to me either that this could be a very subjective judgment or a very broad definition. It seems to me that almost anything could be for the benefit of society if that is the position, and therefore we are in pretty vague territory.

The second and perhaps more important point is that I am not completely clear—I think I am with your colleagues, but not with your view—whether this Bill seeks to alter the law as it stands. It sounds to me that you would like to alter the law as it stands and that you are in a minority in that respect. That is a credit to you in holding your own and you may want to say a bit more about what you would like to see, but the general consensus from legal and non-legal opinion so far—the Secretary of State himself has been quoted—is that this is an exhortation at best. Mr Henderson said it is something the judges are already taking account of, which is usually what they say when they mean ignore. This is the crucial point. If this is a change, it is a significant piece of legislation; if it is not, it is just a confusing piece of legislation, isn’t it?

Stuart Henderson: To come back to some of those points, I agree that there is a real problem with the language. My position is that this is a laudable Bill in  what it is trying to achieve and that there is a problem that needs to be addressed, but I concur with my colleagues that the language used is not clear. A point that illustrates that quite well is that in the Compensation Act 2006 the term used is “socially desirable” activity. In the case of Hopps v. Mott Macdonald Anor, nation building in Iraq was viewed as a socially desirable activity, but I am not sure that that would have been foremost in the legislator’s mind when the legislation was drafted. In terms of whether the Bill is clear enough or will cause confusion, I certainly think it will create debate and I certainly think that better language could be used. In that respect, I think it is a laudable Bill, but it needs redrafting to create what it is trying to create.

Q 45

Photo of Andrew Slaughter Andrew Slaughter Shadow Minister (Justice)

By redrafting, do you mean starting from scratch? Nobody here so far. I think the Law Society said this morning that it is unamendable. From your point of view, is it well intentioned but beyond redemption?

David Johnson: I think you could sit down and come up with better wording. Fundamentally, I think the intention of the Bill—I stand to be corrected on this—and what you are trying to achieve is that when determining what acts or omissions may be said to meet the definition of reasonableness and what acts or omissions would instead constitute negligence, the court will set the threshold of reasonableness at a lower level if what it is considering are acts that have social benefit or are acts of heroism.

Q 46

Photo of Andrew Slaughter Andrew Slaughter Shadow Minister (Justice)

So you think it will do that?

David Johnson: No, I think that is what it is trying to achieve.

Q 47

Photo of Andrew Slaughter Andrew Slaughter Shadow Minister (Justice)

That is what the Secretary of State says it is not trying to achieve. It is not seeking to change the law.

David Johnson: My interpretation of the court having regard to the circumstances when determining issues of negligence is that it is implicit, as in the Compensation Act, that having regard means that it will take these things into account and that that will influence its decision. The question you asked demonstrates the vagaries of the wording that is there. If you substantially redrafted it, you could bring about what it is trying to create, but I think it would need an awful lot of work to achieve that.

Q 48

Photo of Andrew Slaughter Andrew Slaughter Shadow Minister (Justice)

So your answer to my second question is—well, let us leave the golfers aside for a moment and take something less ambiguous: the school trip with teachers giving up their time voluntarily, when a kid falls down a mountain and gets killed, or something of that kind.

David Johnson: Sorry?

Photo of Andrew Slaughter Andrew Slaughter Shadow Minister (Justice)

Let us take the example of clause 2, of a volunteer expedition where a child perhaps dies because they fall down a mountain. Should there be a lower standard in those cases, because there is a socially responsible action, than, say, if a similar thing happened in a commercial setting?

David Johnson: I think if you look at the case law, and Tomlinson in particular, and if you look at the way the cases read, the social benefit of the activity that is  forming the focus of the case is something that the court will take account of when considering what is reasonable or not. You could argue that the current wording may provoke the courts into changing their general approach. That is my interpretation; you talk about common sense coming to prevail.

David Johnson: I am sorry—common sense has been talked about, and its coming to prevail. I think that is what is the driver here, but I think it would require a very specific interpretation of this Bill by the courts in order to achieve that, and I think there are other interpretations that you can put on it that will be argued for, and thus as things stand I do not think you will achieve that result.

Q 49

Photo of Andrew Slaughter Andrew Slaughter Shadow Minister (Justice)

What do the rest of the panel think about that?

Stuart Henderson: As far as the settled common law is concerned, the case of Tomlinson was pretty clear about how the courts would approach these cases. They said that the balance must be drawn between the likelihood of injury, the seriousness of the injury, the social value of the activity which gave rise to the risk, and the cost of preventive measures. There are shifting sands of balance, depending on the facts of the case, that the court will bring to bear in considering the outcome in any common law case.

In a sense, the Act does not add anything at all to the well-established common law, because the social value of the activity is already considered in every case and is already a part of the substantive argument about the outcome that a case should derive. So we could talk about how we could improve this Bill, but it is quite difficult because, as I think you said earlier, Mr Slaughter, it pretty much, for most of its content, repeats an Act that is already in force. So we are going to have two pieces of statute, with lawyers arguing about the differences and which is more relevant to their case, and which should be the dominant piece of statute to determine the outcome of the case.

John Spencer: In my view the two goals are appropriate: one is to encourage socially beneficial activity, but equally and importantly, it has to be in an appropriately safe environment. None of us would want our children going on an unsafe school trip, any more than we would want them prevented from going on a school trip because of perceived lack of safety when in fact there was not a lack of safety. That is the balance that you have got. As was articulated earlier, the courts very carefully weigh up these factors when considering cases in all their facets. The trouble with this Bill is that it just focuses on one area of perception and it is for that reason that I think it is dangerous. It is dangerous because it could encourage unsafe—even reckless—behaviour, while seeking to encourage heroic behaviour, for instance. I think it is the wrong way to do it. As I keep saying, you educate, you do not legislate, when essentially the law is right.

Simon Dewsbury: I think John is right; there is so often a tension between two desirable outcomes. We look back at, say, the fire brigades. The sort of lifting and handling that they would be expected to do in a fire and emergency is quite different to what would be expected in any other environment. That is because of the context that they are saving people’s lives. In hospitals, the sort of lifting that would be done is very different,  because you are lifting human beings, not loads. The law can take that into account. This Bill just does not seem to deal with that. There is a real mix between acts where two clauses do not go very far and will not necessarily make a difference and clause 3, which goes to a very great extent to undermine current law on health and safety, especially in employment situations. For example, there is the very common scenario of a care assistant lifting somebody, has not been trained and has been given the wrong techniques and therefore injures her back, with what is possibly a career-ending injury. At the moment, the issue is whether there has been training. If there has not been training, there is negligence.

Under the Bill, if that care assistant has not been trained but everybody else has been trained, does the employer have a “generally responsible” attitude? If so, does that alter the negligence? If there is no negligence there, you suddenly change from a duty to train everybody just to a duty to train most people. If the person who has not been trained has an accident, they will not be compensated for that. They have gone to work and been injured; they have not been trained and they are not going to get compensation.

Photo of Ben Wallace Ben Wallace Assistant Whip (HM Treasury)

On your last point, you do not mention the consequence of not doing something. Let us say that the carer has not been trained but the consequence of leaving the lady to lie in her bed and not sit her up is that the old lady suffers another type of injury, or is much more uncomfortable. There is an awful Hobson’s choice in the real world where people live. They might say, “I have not been trained; you will just have to lie there and that might make you suffer in a different way.” That is what we are trying to send a message about.

There are two sides to a coin, as you rightly said. I know everyone should be trained but we are getting to a society in which things are layered and layered. I am an ex-soldier. The personal injury lobby on whether we should be able to sue if we are injured in battle is still not resolved. It is a mess that I do not think will be resolved for quite a long time. It is a very difficult area and heroism leads into all that as well.

We do not want people to be have-a-go heroes but we do not want them to feel artificially prevented from relieving suffering or trying to help, when there might not be any other choice. We do hear stories where people say, “I am not going to do that,” and unfortunately someone dies. I think we must all agree that that is a problem. Do you agree?

Simon Dewsbury: No, I do not think so. In the example of the person who is receiving the lifting training and handling, I suspect that more accidents occur where the person who is being lifted is injured due to lack of training than not. The classic unsafe lift is the Australian lift, which was dangerous to carers and those cared for. The issue is to ensure that everybody is trained. If there is a lower level of standard of care, so that it is deemed that most people being trained is adequate, that is going to lead to more risks in that situation for the carers and those being cared for. Those are very complicated situations, which I do not think this Bill would help in any event.

You mentioned the Army. There would be a real problem for the Army with this Bill. If a soldier or a non-military employee of the Army sues, the Army is  going to have to demonstrate a “generally responsible” approach. I can see that that sort of circumstance is going to cause extra work for the Army, because so many more factors which are not relevant to the accident itself, or to the injury itself, are going to be brought into play. This idea of “generally responsible” undermines the whole idea of negligence, because it removes the causative connection between the allegedly negligent act and the standard of care.

Stuart Henderson: Going back to your real-world scenario and the untrained nurse, again I come back to whether this Act is going to cause that nurse to think, “I’ll have a go. I might not be trained, but I am going to try and move this patient”, and what consequences that might lead to. It is one of these situations in which one needs to be careful about what messages one is sending, so that you do not create a new problem and a new injury that would not otherwise happen.

Photo of Ben Wallace Ben Wallace Assistant Whip (HM Treasury)

Let me give you an example. An elderly grandmother has fluid on the lung. The grandmother has to sit up every few hours, otherwise the lung fills with fluid. For whatever reason, you are stuck in a traffic jam and ring your neighbour and say, “Could you just go and sit my mother up, please?”, and the neighbour goes next door and sits the elderly mother up, because if she does not the lung will fill with fluid and become uncomfortable. That person is not a nurse or a carer. If, in lifting up the elderly mother, the neighbour suffers an injury, are we really going to say, “Well, she wasn’t trained and you unreasonably asked her to do it, therefore she would be eligible for compensation”?

Stuart Henderson: My response to that is, first, I do not think any action would be brought in such circumstances and, if it was, it would probably fail. The follow-on point from that is, what difference would it make to have this Bill in place, which most of the general public are not going to know about? Probably, not much.

David Johnson: Knowing about the Bill is not the issue. If you ask the man on the street what has created the current status quo in respect of health and safety, he is not going to give you a list of statutes, nor is he going to give you a list of cases. He is going to read about judicial decisions in the press, and that is what governs people’s perceptions of health and safety, and how they govern their behaviour accordingly. The fact is, the Act is intending to change the law, the way the courts interpret the law, the outcome of these types of cases and, therefore, the press coverage they receive and the public perception of health and safety off the back of that.

Looking at the way the Compensation Act 2006, for example, has been considered in these cases, the requirement to have regard to whether the activities were socially desirable activities has not led to the sweeping away of all other considerations. This is something that is considered alongside the general law. I think it is the same with responsibility. Although the courts may have regard to whether somebody has acted responsibly or not, that is not going to become the sole focus of their attention and all other acts and aspects of negligence will not suddenly be swept away.

Photo of Ben Wallace Ben Wallace Assistant Whip (HM Treasury)

Before I ask a separate question, Mr Spencer, can I just also add that perception is also generated by fishing expeditions? We all have lots of constituents  who run businesses, and so on, who get the lawyers’ letter from a guest who stayed at their bed and breakfast or pub, from a personal injury advertisement the guest has seen on the television. They are often very aggressive and very demanding letters that bear no resemblance to what happened, but they frighten many of our constituents. We all have case woes relating to such matters—not hundreds of cases, but lots of cases. I could mention genuine cases where that has happened in my constituency. That feeds the perception. It is not just the rulings in court, from the very few cases that go to court, but the less regulated, or the less well behaved, personal injury lawyers who give your industry a bad name, I would venture—not you two gentlemen, obviously. That does feed into it.

I want to challenge you, Mr Spencer, on your consistent line that the way to reduce the growth of the compensation culture is through education, not through legislation. You have said that quite a number of times. I sat through the Legal Aid Bill and the Jackson reforms and everything else. We heard from the personal injury lawyers and the associations that our legislative changes would not make a difference. Getting rid of referral fees and the changes to success fees were all unnecessary, and they would not make a difference. I suggest that that legislation helped overnight. The drop of 5.8% in insurance and other claims is, I suggest, directly related to those legislative changes and helped to change the way people come forward and the culture of compensation.

I do not think it should be left just to education. I would challenge the assertion that we do not have a compensation culture. We only have to look at the whiplash claims compared with the rest of Europe to see that there is something wrong with our system. We are all driving European-standard cars but we have an astronomical level compared with everyone else. The law is always involved in trying to shape or have regard to, in this case, a message of what we want in our society. That is what the Bill is trying to do. It is trying to send a message to challenge the perceptions and to ask our judges to have regard to this. You have made plenty of valid points about definition and everything else, and no doubt the parliamentary process will look at that. But we have to have a role in that.

John Spencer: I think I would accept that the Jackson reforms played a part in the reduction in the number of claims which I referred to earlier and you reiterated. The distinction, however, is that we were dealing there with recoverability of costs. We were dealing with the quantum of costs in terms of fixed fees and so on. There are real issues to grapple with such as proportionality and so on. Here we are dealing with a delicate balance. I agree the Bill has a laudable objective—encouraging people to act for the benefit of society without fear of reprisal and to act heroically if the circumstances demand it. On the other hand, I go back to the firefighter representative who gave evidence earlier: there is an equal and opposite and vitally important aspect, which is to do so not in a framework of overbearing bureaucracy but carefully, knowledgeably and according to the circumstances of each case.

My fear is that by emphasising one without the other you interfere with that balance and it is for that reason that I advocate education, not legislation. We are dealing with a different issue which is carefully nuanced and has developed over the years through cases that, by and  large, get these judgments pretty well right. I have appealed with the rest of them, but on average the development of case law has been good in the area of negligence and breach of statutory duty. I distinguish it from the Jackson reforms in that way.

My other concern is about removing protection from volunteers. We all want to see volunteers. We all want to see socially good behaviour. But if it means that our child is subject to an unvetted coaching regime at a local club because it has been decided that that is generally socially beneficial and there is corner cutting in criminal record checks—

Photo of Ben Wallace Ben Wallace Assistant Whip (HM Treasury)

That would be a criminal offence, would it not?

John Spencer: But the legislation as drafted would enable someone to say that they had adopted a generally responsible approach and that they were acting for the benefit of society and that it was not seen as necessary to carry out checks on the safety of those subject to their voluntary activities. I think that there is a danger and we should be careful before—

Q 50

Photo of Ben Wallace Ben Wallace Assistant Whip (HM Treasury)

May I just correct you on that? From my memory of the legislation, it requires people working with young people to have certain levels of checks. They would not be exempted by this legislation. If you did not do that, you would be guilty of a breach of that legislation.

John Spencer: I agree that there could not be a complete disregard, but there could be corner cutting with regard to the vetting of suitability of volunteers, which could put vulnerable people, particularly children, at risk.

Q 51

Photo of Ben Wallace Ben Wallace Assistant Whip (HM Treasury)

I am sorry, but on that example, the legislation is very explicit about who should and should not be checked and at what levels. Having general regard does not allow you to avoid your obligation under other legislation. You cannot just say—

John Spencer: I agree with that. I am just giving an example in which there is undesirable corner cutting or a lack of sufficient vetting. I accept that probably the example that I have given is too extreme, for the reasons that you are stating, but one can see that appropriate vetting, appropriate care and appropriate training are good things. What is not a good thing is overbearing activity in any of those areas; we would all want to discourage that. It is a balance, and what troubles me is that the Bill does not strike that balance in looking only at one angle—the encouragement to volunteer and other socially beneficial activity—with disregard for some of the areas of concern about safety.

Q 52

Photo of Ben Wallace Ben Wallace Assistant Whip (HM Treasury)

This question is to anyone on the panel. Do you think that there is a place in today’s society for amateurism? Is it the case that everyone has to be professionally qualified or professionally trained, or nothing? A lot of volunteers do things in an amateur way—they do not have the time to do all the courses—for the benefit of their society.

David Johnson: I think that goes to the point. John has talked about interfering with the balance. I think there is an imbalance and we demand too much in terms of these standards. It is right to interfere with the balance, because it is not rightly achieved at the moment.

Simon Dewsbury: May I make two points? First, you made a point about the letters that your constituents receive that make allegations. I think the result of the Bill will not be fewer letters. There will be just the same number of letters, but they will contain an extra allegation: “You have failed to demonstrate a generally responsible attitude to health and safety. Please provide all these extra documents as a result.” I think that that will be the practical, on-the-doorstep, on-the-ground effect, as opposed to the general, “Well, maybe if we put this through, there will be a perception, and maybe somehow there will be a few different cases, which somehow will not be reported as irresponsibly by the media, and that will make a difference.” You look at the boots-on-the-ground effect as opposed to the perception, and the two seem to me to be quite different.

Stuart Henderson: May I give a specific example in relation to your amateur point, which may help? A few years ago, I ran a case for a 19-year-old who had suffered a severe spinal cord injury in a colts rugby game. It was an amateur game, but amateur referees receive a certain amount of training and are expected to deliver against certain standards. The crux of the case was whether the referee had said in that game “Touch, pause, engage” at a scrum. The defendants conceded that even though it was an amateur referee, that was expected. It was not the standard of an international referee, but a standard that followed the basic rules of the game. Some of the witnesses said he had said it, and some of the witnesses said he had not. There was no dispute about the fact that a reasonable standard of care is expected from amateur engagement as well as professional engagement. That case ultimately failed, on the basis that the judge preferred the evidence of the witnesses who said he had said it. As personal injury lawyers, we are often put in a situation in which people have suffered the most severe injuries and we have a duty to explore whether there is a right of action that they can pursue. It is not the case that if you are performing a task in an amateur situation, in effect anything goes. There are still rules.

Q 53

Photo of David Rutley David Rutley Conservative, Macclesfield

I am not sure whether you heard the witnesses this morning, but we heard from the National Council for Voluntary Organisations, which represents thousands of often small charities that are struggling to recruit people to lead young people or other groups who need support. I do not hear too much demand from the group except for Mr Johnson, who suggested that there should be some change to the law or at least some clarification. Given the scale of the challenge, however, how would you respond to the charge that most of you sound particularly complacent about the current situation?

John Spencer: Complacent about volunteers?

Photo of David Rutley David Rutley Conservative, Macclesfield

The fact that we are struggling to get volunteers to do a lot of socially good things, because of concerns about this type of activity.

John Spencer: I would challenge whether the evidence of challenge in the voluntary sector is—

Q 54

Photo of David Rutley David Rutley Conservative, Macclesfield

I am sorry. The specific question was—you have all had quite a lot of time to talk—about how you would respond to the charge from those who  are looking in from the outside, and who are concerned about the degree of voluntary activity, that what you have said so far sounds quite complacent.

John Spencer: I do not think that it does in the sense that I in particular have supported the laudable aims of the Bill. I just pointed out that there may be some unintended consequences from the legislation.

I was going to say that the voluntary sector evidence is, as I understand it, from a 2006 survey of 300 people, 47% of whom were not currently volunteering and felt that the worry about risk liability was a reason for not volunteering. More recently, a Cabinet Office press release said last year that the voluntary sector was thriving under this Government, which I find encouraging. I am not saying that more could not be done, but I am saying that it must not be done at the risk of safety of other members of the public. That is my concern. Voluntary activity is a good, socially beneficial activity and we all want more of it, but it must not in any sense come at the cost of care and safe environments for people affected by those activities. If that is complacency, I am complacent as charged, but that is how I would see it.

Stuart Henderson: All of us on the panel are saying that there is a multifaceted approach outside the legislation that could considerably assist with the perception of either a compensation culture or that there is some risk attached to volunteering. David spoke earlier about people getting that perception from the media. Compensation stories are often misreported with hyperbole and the important essence of why a judge found in favour of a particular claimant is missing. Our view is that a multi-agency approach with all stakeholders involved, using education and working with the media, to seek to change that perception is a much more effective way of increasing further the level of volunteering in the community.

Q 55

Photo of David Rutley David Rutley Conservative, Macclesfield

On a number of occasions when giving evidence, Mr Henderson, you have suggested that the law is settled, as if that is a good thing, despite the fact that huge amounts of money and resources have gone into training and education. I do not have the figures in front of me, but all of us know from our experience in business and elsewhere that that funding has increased dramatically, but the problems still exist, as recognised by the voluntary sector. Is it not now time to give a further push, through the law, to help as part of that multi-faceted strategy about which you talk? I do not think that a settled law is a good enough reason to keep things as they are when there are clear challenges outside.

Stuart Henderson: I agree with you, but the settled law fully takes into account the issues that are in the Bill. The cases involving voluntary organisations are few and far between and judges take a very considered view of such cases and of whether they will find in favour of the claimant or the defendant. There is certainly considerable advantage to settled law, and to not unsettling it and making things uncertain for a period of time. My view is that the Bill is not really going to advance the cause of increased volunteering in the future.

Simon Dewsbury: These are not frequent cases. Going back, they stand out. These are not cases from this year normally; these are cases that go back. For example, we referred to the cricket ball case, and I think it was Lord  Denning who gave the lead judgment in that, which shows that it goes back over decades. It is the odd, difficult case. The old legal saying is that “hard cases make bad law”, and that seems to me to be one of the dangers here; that we will get some bad law as a result of things not being thought through, of not thinking through what exactly the Bill means because of the exact wording. We lawyers will look at that. We will not look at the intention behind the Act, except in passing, because that is not what we do. We look at the hard words, at the black-letter law of the words here. I see in the Bill a recipe for all sorts of unintended consequences. I am not at all complacent about this. I do not think it is good for anyone. I think it would be very unfortunate if the Bill were passed in its present form.

John Spencer: You have a point. We need to encourage voluntary activity out there further. In terms of how frequent or infrequent these cases are, we only really see the reported cases—I do not necessarily mean media-reported, but reported in the legal books and volumes around this—and we should listen to the NCVO regarding how frequent theses cases are and how big a problem this is for them.

Q 56

Photo of Andrew Slaughter Andrew Slaughter Shadow Minister (Justice)

I have a few quick questions on wording. We were talking mainly about negligence cases. The Bill deals with negligence or breach of statutory duty. Do you see any distinction that should be made between the way it approaches negligence and statutory duty, in particular in the light of the fact that there has already been restriction through the Enterprise and Regulatory Reform Act 2013 in the way that statutory duty is dealt with in terms of compensation?

Simon Dewsbury: I do not see so at the moment. Section 69 of the enterprise Act, which removed the right to sue for breach of statutory duty, means that it will be negligence, although statutory duty and whether there is an act will feed into the standard of care.

David Johnson: It is right that both are referred to. I cannot immediately think of any reason why there needs to be a distinct approach between the two.

John Spencer: There was not under section 1 of the Compensation Act 2006, which is perhaps some indication that it would apply equally to both. I appreciate that we have had the enterprise Act since, which makes the Bill a little bit more dangerous than it might otherwise be, but—

Q 57

John Spencer: Because it encourages things. In my view, a breach of regulation should be actionable if someone is injured as a result, rather than going back to the law of negligence and having to prove that against the employer in such a scenario. It is regrettable that we took ourselves back to the Victorian era through that Act, by removing that requirement that breach of regulation is an actionable breach of statutory duty. However, I cannot think of an argument of why one would apply the Bill to, say, negligence and not to statutory duty cases.

Photo of Andrew Slaughter Andrew Slaughter Shadow Minister (Justice)

Only perhaps that it is otiose now given what is in the enterprise Act. Whether we like it or not, that Act is now law, therefore it is unlikely—

David Johnson: There will still be the odd case with infants or where the standard three-year limitation, for reasons of capacity or age, does not apply. There may  still be the odd case going forward where statutory duties are relevant.

Q 58

Photo of Andrew Slaughter Andrew Slaughter Shadow Minister (Justice)

You mentioned the Compensation Act 2006. Do you see any distinction between what is said in clause 2 on “benefit of society” and what is said on “desirable activity” in the 2006 Act?

John Spencer: I think there is a distinction in the wording. Section 1 of the Compensation Act, as you say, talks about “desirable activity”. In the Bill, that becomes:

“the benefit of society or any of its members.”

It would be sensible if the Bill proceeded from here to marry the two statutes, rather than introducing different wording. That would ensure that there is some precision over the Bill. The wording is different, so one would presume that it means something slightly different, but I am not sure what that difference is.

Q 59

Photo of Andrew Slaughter Andrew Slaughter Shadow Minister (Justice)

It is a matter for litigation.

John Spencer: I am not sure any of us could say, “This is desirable activity, and this is benefit of society.” It is not an easy distinction to draw.

Stuart Henderson: Lawyers will seek to exploit any difference in wording, but the effect of the content of the Bill is pretty much the same as that of the 2006 Act, apart from clause 3. Sir Edward Garnier said:

“I cannot find, in my head or my heart, a practical difference that the Bill will make to the current law.”—[Official Report, 21 July 2014; Vol. 584, c. 1189.]

I think he is right with regard to clauses 2 and 4, but clause 3, as we have said, is so widely drafted that almost anything could happen through lawyers trying to exploit its content.

Simon Dewsbury: And if anything can happen, it usually will, won’t it?

Q 60

Photo of Andrew Slaughter Andrew Slaughter Shadow Minister (Justice)

I think we have had a good go at clause 3. Is there anything else that you want to add generally on a responsible approach? I share your concerns about the doors that clause 3 opens. If there is nothing more on that, I want to ask one further question on clause 4. The clause does not contain a definition of “acting heroically”. Do you understand what is meant by that term?

David Johnson: I think we would all agree that that is one of the terms that is not defined, and it would form a point of debate in many cases.

Simon Dewsbury: And what is “an emergency”? There are a number of points where judges would have to interpret. That means more litigation. Once again, it is not clear.

John Spencer: One man’s “heroic” is another man’s “reckless”, and vice versa.

Q 61

Photo of Shailesh Vara Shailesh Vara The Parliamentary Under-Secretary of State for Justice

Mr Henderson, when my colleague, Mr Wallace, gave the example of the grandmother and the neighbour going to help her out, you were quite firm that that was something that would not be prosecuted, but that, of course, is not for you to decide as a lawyer; that is for others to decide, and they may take a different view. Mr Dewsbury, you gave the example of the traffic lights, where someone went through red lights and there  were consequences afterwards. If someone had with them a lady who was in labour and was about to give birth and then shot the lights, that changes the circumstances as compared with the person who was going to a meeting, was half an hour early and could happily have waited. Mr Johnson, you spoke of the golf case, and initially there was a comment that it might be something to do with heroism. Then, there was the argument from my colleague, Mr Metcalfe, that it may well fit into the responsibility clause. Where I am going with this is that I would like to think—it has been mentioned—that all the cases depend on their facts. The Bill does not tell the court what decision to arrive at. I think you would all agree that the facts in every single case will be different, and it is for the judge to decide on the facts what decision to come to.

Throughout this session, all of you most of the time have come to a definitive decision as to what a judge would say or do in a particular case, without specifically saying that the judge would decide such and such. You have given examples and said, “This is the example and this is what the consequence would be,” but it is not for you to decide what the consequence will be; it is for the judge to decide. It is important to recognise that the Bill does not tell the judge what to decide. It merely asks the court to take into account certain factors. It is for the court to decide, and I put it to you all that each case will be different. I come back to the traffic light example, which is quite a contrast.

Photo of Adrian Sanders Adrian Sanders Liberal Democrat, Torbay

Order. Perhaps you will make this a question.

Q 62

Simon Dewsbury: That is exactly the point. You say that the judge would come to a decision, and one would expect that in identical circumstances each judge should come to the same decision. There is judicial variation, but let us take that as read. The trouble is that, in an identical situation—

Q 63

Simon Dewsbury: No, but there could be an identical—

Q 64

Photo of Shailesh Vara Shailesh Vara The Parliamentary Under-Secretary of State for Justice

But there are not. History has proven that there no two identical cases.

Simon Dewsbury: In a hypothetical identical case, there could be two different decisions.

Q 65

Photo of Shailesh Vara Shailesh Vara The Parliamentary Under-Secretary of State for Justice

Right. Hypothetical and real are different, so we need to be clear.

Simon Dewsbury: Yes, but there could be, for example, an accident. To go back to the care assistant and the lack of training, in that case there is no training and there is a finding of negligence. There could be exactly identical circumstances of the accident itself, but, because we now have to look at all the circumstances, those are infinitely variable, and in the case where there is a generally responsible approach, an identical case against one employer where exactly the same scenario occurs will result in a finding of negligence. In another one, where there is a background of a generally responsible approach, it will result in a different finding, so I think there is uncertainty there. The judges will be making different decisions in different cases. Instead of the  factors that there are at the moment, there is the huge extra factor of a generally responsible approach, which can mean anything and everything.

Q 66

Photo of Shailesh Vara Shailesh Vara The Parliamentary Under-Secretary of State for Justice

Mr Dewsbury, I am still not clear whether you were speaking hypothetically or really, but I am speaking in the real world. You said that it would be for the judge to decide on the facts, and that is what the Bill says. It is not directing the court to come to any specific decision. Again, you are saying that a court may do this and a court may do that. It may, but it is for the judge to decide. That is why we have the appeal process and so on.

Simon Dewsbury: And—

Q 67

Photo of Shailesh Vara Shailesh Vara The Parliamentary Under-Secretary of State for Justice

The critical thing is to recognise that although everybody has been conclusive with all the examples they have given, it is not for you to decide what the conclusion would be. It is for the courts to decide. The reading of this in Hansard will show that people are being unnecessarily presumptive. They are presuming what a judge would do, but I for one have full confidence in our judiciary. I am sorry that some of you have indicated that you do not have confidence, or at least you given that impression.

Simon Dewsbury: I—

Q 68

David Johnson: I think you are right. It is absolutely right that you leave to judicial discretion the ability to apply this in individual cases, and not to be constrained into making the wrong decision. My only concern is that in merely requiring the court to “have regard to” these issues, the Bill does not go far enough, and that you are at risk of requiring so little of the courts that it will have only a minimal effect. Comparisons have been drawn with section 1 of the Compensation Act, and I think that just as that Act has not been groundbreaking in its effect, the Bill in its current form runs the risk of falling into the same trap.

Stuart Henderson: I hope that the theme of my comments has been that I fully trust the judiciary to deal with this and to take these issues into account, which they did before the Compensation Act and which they have done since the Compensation Act. The theme of my comments is that the judiciary do not need a secondary, very similar statutory prompt to deliver what they are already delivering on these cases.

John Spencer: I would also challenge the idea that the thrust of what I have been saying is a lack of confidence in the judiciary. I think it is the exact reverse. I have been saying that it is a balance of many factors where a judge makes a decision. The concern I have over the Bill is not so much over clauses 2 and 4, which, as has been said several times, do not really change the law that much. The points on clause 3, to introduce a new concept of looking at a demonstrably generally responsible approach in addition, is something new, and Simon has made those points quite strongly. My real fear is to encourage irresponsible or reckless behaviour while encouraging laudable voluntary acts that are socially beneficial. That is my concern. It is not about a distrust of the judiciary.

Photo of Adrian Sanders Adrian Sanders Liberal Democrat, Torbay

There being no further questions from Members, I thank the witnesses, on behalf of the Committee, for their evidence. We will move on to the next panel of witnesses.