The Personal Responsibility Bill

#1
On 15 July 2009, Mr Norman Baker MP (LD: Lewes) presented a Bill before Parliament (Hansard HC Deb 15 July 2009 Col 1312WH) on first reading which attempts to promote personal responsibility, particularly in the field of compensation for personal injury.

It arises out of the mistaken but widely-held belief that there exists in this country, a widespread 'compensation culture'. In reality, our system is both inadequate and penny-pinching when it comes to the provision of compensation for personal injury and has some way to go yet before it reaches anything like the levels that exist in countries such as the United States!

Clause 1 of the The Personal Responsibility Bill introduces the concept of ‘personal responsibility’ which states that an individual is responsible for whatever happens to him as a result of his own actions and as a consequence of his own failure to use common sense. Draft Clause 2 inserts section 1A into the Health and Safety at Work Act 1974 to dis-apply liability under the 1974 Act in respect of accidental injury or damage to the plaintiff (applicant) which could have been avoided had the individual exercised common sense. It applies the principle in a similar amendment to Section 1 of the Law Reform (Contributory Negligence) Act 1945.

In my view, the difficulty with Mr Baker’s Bill is that if ‘common sense’’ is conclusive to the existence of ‘sense’ then the term ‘common mistake’ is devoid of meaning. Another difficulty is that in relation to tortuous liability, it pays little or no regard to the common-sense of our judiciary.

In support of this conclusion regard might be had to the recent judgement of the Court of Appeal in Bourne Leisure v Marsden [2009] EWCA Civ 671 which reached the Court of Appeal on 13 July 2009. It sought to hold the defendant Leisure Centre liable under section 2(2) Occupier’s Liability Act 1957 for the death by drowning of a little boy in a pond situated on the defendant’s Caravan Site. The claimant alleged that in the absence of a fence, the defendant ought to have done more to warn the parents of the danger of the nearby pond. The conclusion was, by a unanimous decision, summed up by Stanley Burton LJ (at para 25) who, in agreeing with Moses LJ (who delivered the main judgement) said: “accidents may and do happen to young children without anyone being at fault”.

A more sensationalist report of the accident appeared in the Daily Mail on 13 July 2009.

While the Treasury and Insurance Companies might applaud such a move, I would rather leave it to our judges to apply the principle of common sense without the requirement for statutory intervention.

The Bill is to receive its second reading on Friday 16 October 2009.
 
#2
Yet another example of a similar judgement delivered the same day is the case of Willie Green which came before Ousley J in the Queen’s Bench Division of the High Court in the Strand last Monday (13 Jul 09) in the case of Green v Sunset & Vine Productions and Others [2009] EWHC 1610 (QB) .

The claimant, Mr Green, is a well-known driver of historic racing cars. The first defendant television company (Sunset & Vine Productions) had a contract with the second defendant (British Automobile Racing Club) to produce outside broadcasts for the 'Goodwood Revival' meeting (the meeting) at the Goodwood motor racing circuit.

The second defendant was responsible for directing the meeting. The third defendant (Goodwood Road Racing Commpany) was one of the group of companies which owned and operated the Goodwood circuit. The circuit itself was licensed by the Royal Automobile Club Motor Sports Association (the MSA), to which the first and second defendants ultimately had to defer in respect of safety issues. In September 2005, the claimant was driving a classic Maserati in the Goodwood Trophy race. He attempted to navigate a double apex bend by driving the side wheels of the car onto the grass on the inside of the bend between the first and second apexes at approximately 85 mph. However, when the car came back onto the track, instead of continuing round the bend it carried on straight over the track and onto the grass verge on the outside of the bend. It eventually hit the tyre wall at the back of the verge and spun round. The claimant was thrown out onto the track and sustained serious leg injuries. The claimant subsequently issued proceedings against the defendants in negligence.

The claimant submitted that he had been driving in a perfectly proper manner, and that it was the impact with an unsecured camera which the first defendants had placed on the grass on the inside of the second apex of the bend which had caused him to veer off the track. Thereafter, he submitted, he had been unable to prevent the crash. Accordingly, he submitted that the first defendant had been negligent in placing the camera on the bend, or in placing it there unsecured.

The first defendant contended that the crash was caused by the claimant driving too fast around the corner and losing control; alternatively, it contended that the claimant's own negligence had contributed to the accident.

The second and third defendants also submitted that the crash had been caused by the claimant's driving or by his own negligence. However, in the alternative they contended that the first defendant had placed the camera in the position which it had without the required approval of the second and third defendants and the MSA and had done so negligently, causing the accident.

The claim would be dismissed.

There was no evidence that the way in which the camera had, or had not, been fixed, installed or tethered to the ground had played any part in the accident at all. On the facts, the claimant's driving had been the principal cause of the accident. It had been his error of judgment which led to him taking the line he had on the double apex bend, in pursuit of his chosen manoeuvre. He was largely to blame for his own misfortune and accordingly the claims against all three defendants would be dismissed (see [203]-[204] and [438]-[439] of the judgment).
 
#3
It seems to me that common sense can be a double edged sword: why should the law demand it of claimants and thereby absolve defendants who lack it from any responsibility?

If you have a pond and you deliberately seek to profit by charging families with young children to visit the site where it is then common sense should tell you it presents a hazard that only you can mitigate with a fence and warnings. If you set up your camera by a race track common sense should tell you, such is the nature of trying to drive a race car as fast as possible, that one may leave track and hit your camera. I'm not at all sure it's sensible to argue that the primary responsibility is with the claimant when the primary act is that of the defendant - you can't hit a camera that isn't there and you can't fall in to a pond so easily if it has a fence or your parents know about it.

In the Green case it would have been useful to ask why the camera was unmanned.
 
#4
What you have to ask yourself is what is an accident?

Some would say there are no such things as accidents as someone or something must always be to blame.

If a tree falls on a car on a windy day who is to blame? The person who planted it (If it was planted) or the person who parked the car?
 
#5
WO2.Ghandi said:
you can't fall in to a pond so easily if it has a fence or your parents know about it.
Eh? The parents should have looked around the place before letting the child wander around unsupervised. If they'd done that, they'd have seen the pond.

In the Green case it would have been useful to ask why the camera was unmanned.
Because it's a race track and cars don't always stay on the track. In such places a camera will either be behind a lot of protection or be unmanned. Killing a cameraman is negligence.
 
#6
Silly bill. Negligence law as it is works. Not perfectly but it works. The bill is nothing other than cheap political grandstanding. IMO, legislators ought to be very cautious about making new laws if only because laws very seldom get repealed. This Norman Baker fella clearly doesn't understand the gravity of parliament's law making function.
 
#7
ottar said:
WO2.Ghandi said:
you can't fall in to a pond so easily if it has a fence or your parents know about it.
Eh? The parents should have looked around the place before letting the child wander around unsupervised. If they'd done that, they'd have seen the pond.

In the Green case it would have been useful to ask why the camera was unmanned.
Because it's a race track and cars don't always stay on the track. In such places a camera will either be behind a lot of protection or be unmanned. Killing a cameraman is negligence.
Then surely the camera man should have known the risks to his camera and the driver should have anticipated the risk to the car. The track should have anticipated the risks to both. Interesting game really :D
 
#8
Closet_Jibber said:
ottar said:
Because it's a race track and cars don't always stay on the track. In such places a camera will either be behind a lot of protection or be unmanned. Killing a cameraman is negligence.
Then surely the camera man should have known the risks to his camera and the driver should have anticipated the risk to the car. The track should have anticipated the risks to both. Interesting game really :D
I don't see the relevance of 'risks to his camera'. There's no mention of a claim for the camera. The claimant said he crashed because of a camera at the side of the track. Would you blame a lamp-post for causing a crash if you'd hit it?
If it had been in the middle of the track, that would have been negligence, but off the track?
 
#9
Nope I'm just saying there is blame pointing in all directions and room for a claim in all directions.

Thats why there are so many no win no fee ambulance chasing briefs. This area of the law is wide open to interpretaion and abuse.
 
#11
Also I believe the real issue with vexatious litigation is the "low cost" claims where it is cheaper to pay off the claim than go ahead with fighting the case.
This leads to the low value yet widespread misuse of the courts time.
 
#12
Semmy said:
Also I believe the real issue with vexatious litigation is the "low cost" claims where it is cheaper to pay off the claim than go ahead with fighting the case.
This leads to the low value yet widespread misuse of the courts time.
Gone are the days when someone would fall down a hole then say "That was fecking daft of me, I'll look where I'm going in future." There are too many briefs out there willing to make it easy to claim.
 
#13
The (Irish - as in, he is not a UK resident, but works here) barman at our local pub cycled home one night around midnight and, being as pissed as a parrot, ran into a broken down car parked half on the pavement and thus on the cycle path. He broke his collar bone and received a couple of thousand quid almost by return of post in full and final settlement of his claim.
 
#14
eodmatt said:
The (Irish - as in, he is not a UK resident, but works here) barman at our local pub cycled home one night around midnight and, being as pissed as a parrot, ran into a broken down car parked half on the pavement and thus on the cycle path. He broke his collar bone and received a couple of thousand quid almost by return of post in full and final settlement of his claim.
Did he admit that he was drunk in charge of a pedal cycle or riding it wanton and furiously? :D
 
#15
In 2006, the government's Better Regulation Task Force published a report which is well-worth taking the time to read, on whether Britain had become strangled by an American-style compensation culture.

It concluded that this was a myth spun by the media that there was easy money to be made from personal injury claims. It was a matter of perception - but it did not stop the stories being written and the cases continuing.

The problem is, in my view, exacerbated by the existence of contingency fee litigation which appears to convey to the general public that for every mischance in an accident-prone world, someone solvent must pay.

The House of Lords in Tomlinson v Congleton Borough Council [2003] UKHL 47 expressly disapproved of this type of culture. The facts were set out by Lord Hoffman at paras 2 and 3:

In rural south-east Cheshire the early May Bank Holiday week-end in 1995 was unseasonably hot. John Tomlinson, aged 18, had to work until midday on Saturday 6 May but then met some of his friends and drove them to Brereton Heath Country Park, between Holmes Chapel and Congleton. The Park covers about 80 acres. In about 1980 Congleton Borough Council acquired the land, surrounding what was then a derelict sand quarry, and laid it out as a country park. Paths now run through woods of silver birch and in summer bright yellow brimstone butterflies flutter in grassy meadows. But the attraction of the Park for John Tomlinson and his young friends was a 14 acre lake which had been created by flooding the old sand quarry. The sandy banks provided some attractive beaches and in hot weather many people, including families with children, went there to play in the sand, sunbathe and paddle in the water. A beach at the far end of the lake from the car park was where in fine weather groups of teenagers like John Tomlinson would regularly hang out. He had been going there since he was a child.
After sitting in the hot sun for a couple of hours, John Tomlinson decided that he wanted to cool off. So he ran out into the water and dived. He had done the same thing many times before. But this time the dive was badly executed because he struck his head hard on the sandy bottom. So hard that he broke his neck at the fifth vertebra. He is now a tetraplegic and unable to walk...”


Judicial distate for the ‘compensation culture’ imposing the dead hand of regulation upon the ability of local authorities to provide public amenities was expressed by Lord Scott at para 94 of the judgement:

“...much was made of the trial judge's finding that the dangers of diving or swimming in the lake were obvious, at least to adults. No one has contested that finding of fact. But I think its importance has been overstated. Mr Tomlinson was not diving in the normal sense, nor was he swimming. He simply ran into the water and when he could not run any further, because the water was above his knees and the galloping action that we all adopt when running into water on a shelving beach had become too difficult, he plunged forward. This is something that happens on every beach in every country in the world, temperature and conditions permitting. Mr Tomlinson would not have stopped to think about the dangers of swimming or diving in the lake. He was not taking a pre-meditated risk. It would not have occurred to him, if he had thought about it, that he was taking a risk at all. He was a high spirited young man enjoying himself with his friends in a pleasant Park with a pleasant water facility. If he had set out to swim across the lake, it might have been relevant to speak of his taking an obvious risk. If he had climbed a tree with branches overhanging the lake and had dived from a branch into the water he would have been courting an obvious danger. But he was not doing any such thing. He was simply sporting about in the water with his friends, giving free rein to his exuberance. And why not? And why should the Council be discouraged by the law of tort from providing facilities for young men and young women to enjoy themselves in this way? Of course there is some risk of accidents arising out of the joie de vivre of the young. But that is no reason for imposing a grey and dull safety regime on everyone...”

The message started trickling down to the lower courts and in subsequent years a few decisions began tipping the balance towards a more practical approach, assessing risks and responsibilities from a new, realistic perspective.

The judgement of the Court of Appeal in Timothy and Cathrine Perry v Samual Harris [2008] EWCA Civ 907 (the ‘Bouncy Case) was possibly the one that crystallised this new trend, where Lord Philips said there was no duty to keep children under constant supervision and that it was not in the public interest to impose one.

The Marsden case (supra) pushes the point home once more. "Sometimes these cases are bedevilled with the quest for attaching blame either to the parents or to the occupier," Mr Justice Moses said. "But liability is not to be attributed on the basis that one or other must be to blame."

Perhaps more strikingly Lord Justice Stanley Burnton commented: "It is impossible to live in a riskless society." This, therefore appears to be the approach adopted by our courts to the question of taking personal responsibility for risk. One therefore has to seriously consider whether Mr Baker’s Bill has any utility at all?

One must wonder at whether some of our MPs really do need to employ real researchers in their constituency offices!
 
#16
We don't know the full circumstances but if we are right in the assumption the camera was unmanned because they foresaw the possibility of a car hitting it then they must also foresee the risk hitting a camera presents to the driver. Lamposts are a bad example for you to use: on motorways they've always been on the other side of the crash barrier because the risk of cars hitting 'em has been foreseen. In towns they've been moved off curbs and there are countless other regulations regarding street furniture. Race tracks are for driving as fast as you can on, clearly that implies a greater risk of driver error. A risk that the driver accepts but that doesn't abrogate the responsibility of someone who increases that risk, especially where they foresaw the danger.

Ponds 'n kids: it's better to prevent accidents. Not all parents can be assumed to be flawlessly diligent at all times and kids, though lacking experience and judgment do possess free will, better then to place responsibility on the owner of the hazard, who only needs to consider the risks once and act appropriately, to minimise the risk for all. If you seek to profit from running a business then the least you owe your customers is to take every reasonable step to ensure their safety.

Vexatious litigants have to first prove they have a case before they are allowed to proceed. Why shouldn't liability defendants put their faith in the law like everyone else involved in proceedings? If you think you're not guilty then plead it in court - there's no misuse of court time if the defendant bottles it and settles out of court.
 
#17
Iolis said:
Clause 1 of the The Personal Responsibility Bill introduces the concept of ‘personal responsibility’ which states that an individual is responsible for whatever happens to him as a result of his own actions and as a consequence of his own failure to use common sense. Draft Clause 2 inserts section 1A into the Health and Safety at Work Act 1974 to dis-apply liability under the 1974 Act in respect of accidental injury or damage to the plaintiff (applicant) which could have been avoided had the individual exercised common sense. It applies the principle in a similar amendment to Section 1 of the Law Reform (Contributory Negligence) Act 1945.
Is Section 1of the Law Reform (Contributory Negligence) Act 1945 not utilised as defence in personal liability claims at present, in that apportionment of liability in case of contributory negligence is taken into account and any claim is reduced on a percentage basis decided by the judiciary?

I certainly am aware of one case of personal injury (due to a fall in a pothole) where the awarding figure was "adjusted" down by 20% as the claimant was a frequent user of the area, and should have been aware of the hazard locations!

In support of this conclusion regard might be had to the recent judgement of the Court of Appeal in Bourne Leisure v Marsden [2009] EWCA Civ 671 which reached the Court of Appeal on 13 July 2009. It sought to hold the defendant Leisure Centre liable under section 2(2) Occupier’s Liability Act 1957 for the death by drowning of a little boy in a pond situated on the defendant’s Caravan Site. The claimant alleged that in the absence of a fence, the defendant ought to have done more to warn the parents of the danger of the nearby pond. The conclusion was, by a unanimous decision, summed up by Stanley Burton LJ (at para 25) who, in agreeing with Moses LJ (who delivered the main judgement) said: “accidents may and do happen to young children without anyone being at fault”.
Is this judgement ruling not in contradiction to Lord Dennings ruling in the case of Gough v. Thorne in that a very young child cannot be guilty of contributory negligence. In the Court of Appeal in Mullin v Richards [1998] the objective standard of what a child might be reasonably expected to foresee is that of an ordinarily prudent and reasonable child of that age rather than that of a `reasonable man'. It is also affirmed that teachers are expected to behave as reasonable parents with the consequence that they cannot be expected, even with young children, to supervise their behaviour constantly. On assumption, this should apply to parents. Taking this into consideration I find Moses LJ ruling bizarre.

While the Treasury and Insurance Companies might applaud such a move, I would rather leave it to our judges to apply the principle of common sense without the requirement for statutory intervention.
It does seem typical of this government to try to over legislate. My concern is that this new "Personal Responsibility Bill" will restrict any apportion of liability, and is overzealously applied in order to reduce financial costs.

The Bill is to receive its second reading on Friday 16 October 2009.
I will have a look at this "Bill" and reserve judgement until then.

Thanks for the pointer.
 
#18
As an aside, under the Occupiers Liability Act 1957 it should be noted that determining whether the occupier of premises has discharged the common duty of care to a visitor, regard is to be had to all the circumstances, so that (for example)—

(a) where damage is caused to a visitor by a danger of which he had been warned by the occupier, the warning is not to be treated without more as absolving the occupier from liability, unless in all the circumstances it was enough to enable the visitor to be reasonably safe;

The family were given no warning of the hazard by the caravan park owners, and do seem to fall foul of this Act in that there was insufficient duty of care discharged.

Just a thought.
 
#19
Having just read through the Bill, I shall certainly be opposed to it.

The concerning point I have is the proposed Amendment of Law Reform (Contributory Negligence) Act 1945 stating:
.
(1) The Law Reform (Contributory Negligence) Act 1945 (c. 28) is amended as follows.

(2) In the proviso to section 1 (apportionment of liability in case of contributorynegligence) after paragraph (b) insert—

“(c) where the fault of the person suffering the damage was a failure to use common sense, no damages shall be recoverable by that person.”


This is such a general sweeping "get out clause" and is based purely on perception and fails to consider the varying degrees of liability that may be presented.

To have such a restrictive clause will impact severely on the discretion of the judiciary.
 
#20
Hi mac,

I think your last post answers your first.

The debate on the second reading of this bill should make for entertaining reading!

In my opinion, the Bill is a paradigm of the distinction that exists between intention and effect.

On the one hand, the purpose of the amendment to the 1945 Act is to emasculate the provision, while the purpose of the amendment to the 1974 Act is to dilute the incidence of liability.

The effect will, of course be a matter of interpretation turning on the meaning to be attributed to the term 'common sense' which, in all cases is 'fact specific'. It is no more than a statutory mechanism to allow the judges the freedom to engage what they already routinely engage in as a matter of course. If the case has merit, the applicant will have exercised 'common sense' and the defendant will correspondingly fail. If, on the other other hand, the case is devoid of merit, the judge will find that the applicant has failed to exercise 'common sense' and the defendant will succeed.

The distinction between intention and effect is therefore marked by an intention that has absolutely no effect in practice!

The difficulty with the Bill is that it is predicated upon an entirely false premise and constructed with little or no regard to the way in which cases are dealt with in the courts.

I do not honestly see that the Bill, in the unlikely event that it survives all of its parliamentary stages into royal assent, is going to make a scintilla of difference to the outcome of cases as currently decided.

Regards
 

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