Protection for the ‘have-a-go hero’.
A paramedic arrives at the scene of a motorcycle crash. The other emergency services have not yet arrived. The paramedic sees that the rider’s leg is trapped under the motorbike, which is on fire, and he is screaming in pain. Acting quickly the paramedic risks injuring himself by lifting the burning bike off the rider. Fearing that the bike will explode at any moment, the paramedic drags the rider away to a safe distance, before providing emergency treatment.
Several weeks later the NHS Trust responsible for the paramedic in question receives a letter from a firm of solicitors representing the rider. The letter explains that the rider had actually suffered a broken back in the crash and is now paralysed from the waist down. Furthermore, it is alleged that the fracture of the spine was worsened by the paramedic dragging him across the road. It is alleged that had he been moved more carefully, with the correct technique and equipment, his spinal injury would not have been worsened and he would not have lost the use of his legs. The letter sets out a claim for a significant amount of damages.
To serve and protect
To some people the above scenario seems incredibly unjust and inappropriate given that, at the time, the paramedic was genuinely acting to protect the rider from further injury or death.
Regardless of how unjust and improbable such situations might sound, the government has proposed the Social Action, Responsibility and Heroism Bill. The Bill proposes to protect ‘have-a-go heroes’, the emergency services and responsible employers from the threat of a damages claim where reasonable and appropriate action had been taken to protect an individual.
The pre-amble to the Bill sets out the key objectives:
"The Bill has been developed in a response to concerns that people may be put off from taking part in voluntary activities, helping others or intervening in emergency due to worries about risking liability. The Government also wants to make sure that when people such as employers have been taking a responsible approach towards the safety of others trying activity and something goes wrong, the Courts will take account of the circumstances.
The Bill therefore contains measures to reassure people that if they are acting for the benefit of society, intervening in emergency or demonstrating a generally responsible approach towards the safety of others during an activity, then if something goes wrong and they are sued for negligence or for certain breach of statutory duty, the Court will take account of the full context to their actions."
From this pre-amble we can see that the Bill seeks to set out 2 key points that a Court should apply to ensure that all the circumstances of the case have been considered, thus avoiding unjust claims. The 2 key points are:
- Was the ‘hero’ acting for the benefit of society?
- Did they demonstrate a generally responsible approach?
A third point which is made within the body of the Bill is that courts must also consider whether the individual was acting heroically in an emergency situation.
It should be clarified that neither the Bill, nor any existing legislation, imposes a legal duty on members of the general public to assist people who are in peril.
What about clinical negligence?
When one considers the implications of this proposed Bill in a clinical context, in particular clinical negligence, there are some genuine concerns that deserve discussion.
It may be argued that this Bill places too much emphasis on the potential ‘hero’ and insufficient consideration is given to the potential implications for the patient/victim in the scenario. Some may argue that the Bill is an attempt to change the law of negligence by looking more closely at the intentions of the ‘hero’ rather than the reasonable standard of care by which he/she is judged. It may also be said that such a Bill would give medical professional more freedom and scope to take risks where they would otherwise have not.
In particular, if we look at the Bill in the context of medical negligence claims, it seems likely that Defendants will try to argue that a surgeon or doctor was acting heroically for the good of the patient and society and therefore should be exonerated from any subsequent claim, should that patient suffer additional harm as a result of said ‘heroism’.
There is also some over lap here with the Saatchi bill regarding innovation in medical practice; where a defence would be that the doctor was acting "responsibly" even if no other doctor would have acted in that way.
Arguably then, between these two proposed Bills, an injured patient may be entirely without a legal remedy; can that be right?
Is the Bill necessary?
There is arguably validity to a Bill which seeks to reassure society that people can attempt to help others in emergency situations without fear of being sued if things go wrong.
So far as the emergency services are concerned, it may be reassuring for them to know that they could act more freely in their duties to serve and protect without fear that they will be held to account if things go wrong.
That said, one should also give credit to the predominant values, both in the legal sector and also in wider society at large. If a member of the public is thought to be in peril and another member of the public rushes to his/her aid with nothing but good intentions, it could well be the view of the majority that very few ‘victims’ would subsequently try and sue that person if things went wrong. If that person had acted wholly disproportionally and recklessly then the situation might be different and the courts would deal with that accordingly and likely find in favour of the Claimant.
Some commentators have argued that the Bill may have a detrimental affect on employer health and safety liability cases, where employers may try and argue they had ‘tried their best’. This is valid concern given that the Bill has not really sought to define what is meant by "acting for the benefit of society" and a "generally responsible approach". These terms are rather vague at best.
What do other jurisdictions do?
It is interesting to see what duties are placed on people in rescue situations in other countries. Two countries which present good examples of entirely different approaches on this issue are Canada and Germany.
In the Canadian legal system there is a legal doctrine (not statute) which provides that where one person helps another who is in peril, that person cannot be held accountable if something goes wrong. This is a very simplified summary, but it demonstrates the same values as those presented in the Social Action, Responsibility and Heroism Bill.
In Germany it is a criminal offence not to act in an emergency first aid situation. Failure to provide first aid to a person in need is punishable under their penal system. However, German law is such that the volunteer/rescuer is then protected from being sued should things go wrong.
From a legal point of view, the Social Action, Responsibility and Heroism Bill does raise some very interesting issues. Whilst one can see some logic and the apparent good intentions behind the Bill, it cannot be said that the proposed Bill is not without flaws.
So is the proposed Bill necessary? Not in my view. There is already a very clear and well defined legal test for negligence and whether someone has breached their ‘duty of care’. Without considering the proposals of the recent Bill, a court would already seek to establish whether the accused owed the Claimant a duty of care, whether that duty had been broken and whether harm occurred as a result. It is certainly arguable, therefore, that the courts do not need this new Bill to clarify matters because the current legal tests are adequate and suitable in determining which claims are just those that are not – that is after all one of the key roles of the court. Perhaps the provisions of the new Bill will simply water down, rather than distil, the legal tests already applied by the courts in such matters. As the old saying goes "if it ain’t broke, don’t fix it".