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Walking on thin ice: the perception of tortious liability rules and the effect on altruistic behaviour
Published online by Cambridge University Press: 23 April 2019
Abstract
Laypeople are often deterred from undertaking altruistic acts, assuming that they face a risk of negligence liability should they injure others while helping. We argue that the laypeople's interpretation of the law does not correspond with the courts’ interpretation of negligence liability. Reviewing the case law, we demonstrate that the courts treat such cases with leniency in the spirit of the Compensation Act 2006, s 1 and the Social Action, Responsibility and Heroism Act (SARAH) 2015, s 2. Thus, the negligence liability rules do not offer a sufficient explanation for the widely-held opinion that acts of altruism may give rise to liability. We hypothesise that the public's perception of legal rules is determined by a number of well-known biases and is not founded in the law itself. In the light of those biases, we contend that the function of the Compensation Act 2006, s 1 and SARAH 2015 does not lie in the substance but in their value as potential signals to reassure laypeople.
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- Copyright © The Society of Legal Scholars 2019
Footnotes
†
We would like to thank Dr Piers Fleming (UEA) and the participants of the UEA Law School seminar series for their helpful comments on earlier versions of this paper.
References
1 The economic value of formal volunteering is estimated to be in the range of £36 to 40 billion: N Low et al ‘Helping out, a national survey of volunteering and charitable giving’ (2007), at 16.
3 Lord Hodgson of Astley Abbotts ‘Unshackling good neighbours’ (May 2011) Report of the Task Force established to consider how to cut red tape for small charities, voluntary organisations and social enterprises, 10.
4 Low et al, above n 1, at 68.
5 Most commentators criticise s 1 and SARAH 2015 for being unnecessary and void of any purpose. For an assessment and overview of these legislative changes see Partington, N ‘Beyond the ‘Tomlinson trap’: analysing the effectiveness of section 1 of the Compensation Act 2006’ (2016) 37 Liverpool Law Review 33CrossRefGoogle Scholar; Mulheron, R ‘Legislating dangerously: bad samaritans, good society, and the Heroism Act 2015’ (2017) 80 Modern Law Review 88CrossRefGoogle Scholar. See also The Scout Association v Barnes [2010] EWCA Civ 1476.
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7 We do not look into the liability for intentional wrongdoing.
8 The perception of liability is an empirical problem and we plan to conduct future research.
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26 Ibid.
27 Ibid.
28 Ambulance services may owe a duty of care for failure to provide an adequate service, see Kent v Griffiths, above n 16.
29 Kent v Griffiths, above n 16, at [15].
30 East Suffolk Rivers Catchment Board v Kent [1940] AC 74, at 102.
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36 Capital & Counties plc v Hampshire County Council, above n 16, at [58].
37 See, for example, the guidance available at https://www.gov.uk/clear-snow-road-path-cycleway.
38 One could argue that the hapless helper created a new risk by clearing the path that is different from the slipping risk on snow.
39 Capital & Counties plc v Hampshire County Council, above n 16, at [33]. The quote continues: ‘… whether by the forces of nature, or the acts of some third party or even of the plaintiff himself, and whether those acts are criminal, negligent or non-culpable’.
40 The Law Reform Commission Consultation Paper: Civil Liability of Good Samaritans and Volunteers (Dublin, 2007) 89.
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42 Hill v Chief Constable of West Yorkshire [1987] UKHL 12.
43 Alcock v Chief Constable of South Yorkshire [1991] UKHL 5.
44 Spartan Steel and Alloys Ltd v Martin & Co Ltd [1972] EWCA Civ 3.
45 Capital & Counties plc v Hampshire County Council, above n 16, at [74].
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47 Cattley v St John's Ambulance Brigade [1988] Lexis Citation 1703, 6–7.
48 Bolam v Friern Management Hospital Committee, above n 14. See also the Bolitho qualification of the Bolam test. Bolitho v City and Hackney Health Authority [1997] UKHL 46.
49 Vowles v Evans, above n 17, at 328. The law of negligence does not usually take account of the inexperienced actor: Nettleship v Weston [1971] 2 QB 691 (CA); Wilsher v Essex AHA [1987] QB 730 (CA) but does adjust the standard of care in accordance with the specialism and skill level of the defendant: Bolam, above n 14.
50 Horsley v MacLaren (The Ogopogo), above n 31, at 452.
51 Watt v Hertfordshire County Council [1954] 1 WLR 835.
52 Day v High Performance Sports Ltd [2003] EWHC 197 (QB). See also Eckersley and Others v Binnie and Others [1988] 18 ConLR 1. The threshold for establishing a breach has been set at a high level between spectators and participants in sport events: Wooldridge v Sumner [1963] 2 QB 43; Caldwell v Maguire [2001] EWCA Civ 1054.
53 Smoldon v Whitworth [1996] ELR 249 at 256.
54 ibid. See also Caldwell v Maguire, above n 52.
55 Vowles v Evans, above n 17, at 326.
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58 Lord Phillips seems to assume that the Court's decision will have no deterrent effect.
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61 The courts consider four factors when assessing a breach of duty: the probability of injury, the severity of the potential injury, the cost of preventing that injury and the social utility of the activity in question, Bolton v Stone [1951] AC 850 and Tomlinson v Congleton Borough Council [2003] UKHL 47. For an in-depth analysis see, for example, Mulheron, above n 22, p 353ff.
62 Daborn v Bath Tramways Motor Co Ltd [1946] 2 All ER 333.
63 Watt v Hertfordshire County Council, above n 51.
64 Watt v Hertfordshire County Council, above n 51, at 838.
65 See text to n 10.
66 See our working definition of altruistic actions in the text to nn 10–12.
67 Tomlinson v Congleton Borough Council, above n 61.
68 Tomlinson v Congleton Borough Council, above n 61, at [44].
69 Ibid, at [29].
70 Ibid, at [34].
71 Ibid, at [36].
72 The Scout Association v Barnes, above n 5, at 49.
73 Ibid. For other factors see for example Bolton v Stone, above n 61. Wooldridge v Sumner, above n 52, has sometimes been interpreted as advocating a ‘reckless disregard’ standard.
74 Compensation Act 2006 – Explanatory Notes at [7], see also Better Regulation Task Force ‘Better routes to redress’ (2004).
75 Uren v Corporate Leisure (UK) Ltd [2010] EWHC 46 (QB) at [19] and [2011] EWCA Civ 66; The Scout Association v Barnes , above n 5, at [49]; Wilkin-Shaw v Fuller [2012] EWHC 1777 (QB) at [46]; Cornish Glennroy Blair-Ford v CRS Adventures Ltd [2012] EWHC 2360 (QB) at [45], [52] and [56]; Humphrey v Aegis Defence Services Ltd [2016] EWCA Civ 11 at [14]. See also Partington, above n 5; Mulheron, above n 5.
76 The Scout Association v Barnes, above n 5.
77 Partington, above n 5, at 42.
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80 The Scout Association v Barnes, above n 5.
81 The Scout Association v Barnes, above n 5.
82 Lunney, M, Nolan, D and Oliphant, K Tort Law (Oxford: Oxford University Press, 6th edn, 2017) p 178Google Scholar; see also n 79.
83 Compensation Act, Explanatory Note Bill 155- EN, See also Ministry of Justice ‘Memorandum to the Justice Select Committee, Post-Legislative Assessment of the Compensation Act 2006’ (2012).
84 See case law in nn 75 and 85.
85 See for example Hopps v Mott Macdonald Ltd & Another [2009] EWHC 1881 (QB); Uren v Corporate Leisure, above n 75; Reynolds v Strutt & Parker LLP [2011] EWHC 2263 (Ch); Sutton v Syston Rugby Football Club Ltd [2011] EWCA Civ 1182; Wilkin-Shaw v Fuller, above n 75; Cornish Glennroy Blair-Ford v CRS Adventures Ltd, above n 75; McErlean v St Bride's Primary School [2014] NIQB 1.
86 The Scout Association v Barnes, above n 5, at [49]. See also Horsley v MacLaren (the Ogopogo), above n 31.
87 Lord Hodgson, above n 3, at 10: ‘Lawyers with whom we have discussed this have focused very much on this point of myth rather than reality’.
88 Goudkamp, above n 78, at 5. Motivated reasoning may also partially explain the resistance to assist others. The unwillingness to help will post hoc be justified by reference to issues such as legal liability, hassle etc: see Kunda, Z ‘The case for motivated reasoning’ (1990) 108(3) Psychological Bulletin 480CrossRefGoogle ScholarPubMed.
89 More generally, a way of addressing the perception problem is to improve the way in which legal rules are communicated. Arguing along similar lines, see Lord Hodgson, above n 3, at 10.
90 Bennett, L and Gibbeson, C ‘Perceptions of occupiers' liability risk by estate managers’ (2010) 2 International Journal of Law in the Built Environment 76CrossRefGoogle Scholar, at 77.
91 Williams, above n 13, at 268.
92 The fear of being sued was ranked the fourth most prevalent reason not to act out of eight (including ‘others’).
93 See section 2.
94 A common reason identified for not offering assistance was that the participants did not feel they had the necessary skills to deal with emergency situations: Williams, above n 13, at 267.
95 Ibid, at 279.
96 Indeed, Williams himself identifies that the evidence suggests that ‘few (if any) claims are likely to be brought’: ibid, at 273.
97 Ibid, at 265.
98 Ibid, at 268.
99 Assuming a sufficiently large sample and that the reported data are reliable.
100 This is akin to throwing a coin. One may observe a few heads or tails in a row but after a sufficiently large number of coin tosses, we should have roughly the same number of tosses that showed either heads or tails. If doctors have no knowledge about legal rules and randomly guessed the correct answer to the questions, 50% of the answers in the sample should have been correct.
101 The ‘Helping Out’ survey did not look at this in detail: Low and others, above n 1.
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103 Lord Hodgson's analysis is based on submissions of interested parties but, as far as we can tell, the report did not rely on a standard survey or random samples.
104 Lord Hodgson, above n 3, at 4.
105 Ibid, at 10.
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110 Several heuristics have been identified: representativeness heuristic, availability heuristic, simulation heuristic, anchoring and adjustment, effect heuristic. In this context the availability heuristic (probability determined by the ease with which examples come to mind) is most likely to be relevant.
111 Tversky and Kahneman, above n 109.
112 Tversky and Kahneman, above n 109, at 1127.
113 Ibid.
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117 Wilkin-Shaw v Fuller, above n 85. See for example http://www.telegraph.co.uk/news/uknews/law-and-order/9362579/Advice-of-scoutmaster-was-to-blame-for-death-of-teen-on-Ten-Tors-challenge-judge-rules.html (accessed 4 February 2019).
118 Cornish Glennroy Blair-Ford v CRS Adventures Ltd, above n 85. See http://www.telegraph.co.uk/education/educationnews/9472311/Teacher-left-paralysed-after-school-trip-loses-High-Court-claim.html (accessed 4 February 2019).
119 See http://news.bbc.co.uk/1/hi/8443745.stm (accessed 4 February 2019).
120 See http://www.dailymail.co.uk/news/article-2098008/Should-fined-dont-clear-snow-path-outside-house.html (accessed 4 February 2019).
121 See above n 37.
122 For decision-making and risk, see Tversky and Kahneman, above n 115. Individuals tend to be risk averse: Kahneman, D and Tversky, A ‘Prospect theory, an analysis of decision under risk’ (1979) 47 Econometrica 263CrossRefGoogle Scholar.
123 See, for example, the misleading headline of an article in the Leicester Mercury that is actually very informative on snow-clearing: https://www.leicestermercury.co.uk/news/uk-world-news/law-clearing-snow-ice-footpaths-909444 (accessed 4 February 2019).
124 Slovic, above n 107, at 283.
125 Unknown risks are risks that are not being observable, new to the people exposed or where there is little knowledge about the risk. The dread factor includes criteria such as uncontrollability of risk, possibility of a global catastrophe, high risk to future generations, risks not being easily reduced and involuntariness.
126 Slovic, above n 107, at 283–284.
127 It is not clear whether people are afraid of legal entanglement to the extent that it becomes a dread risk.
128 Alhakami, AS and Slovic, P ‘A psychological study of the inverse relationship between perceived risk and perceived benefit’ (1994) 14 Risk Analysis 1085CrossRefGoogle ScholarPubMed.
129 There is some evidence that people are willing to hurt themselves when helping: Olivola, CY and Shafir, E ‘The martyrdom effect: when pain and effort increase prosocial contributions’ (2013) 26(1) Behavioral Decision Making 91CrossRefGoogle ScholarPubMed. The decision to incur pain may be context-dependant.
130 Another potential consequence of misconceived risks is that individuals and organisations are likely to spend more on risk assessments and insurance. For the value of risk assessment in recent court proceedings, see Reynolds v Strutt & Parker LLP, above n 85; Wilkin-Shaw v Fuller, above n 75; Cornish Glennroy Blair-Ford v CRS Adventures Ltd, above n 75.
131 In the context of risk perception, see Slovic, above n 107, at 285.
132 See above n 37.
133 See for example Fox, CR and Tversky, A ‘A belief-based account of decision under uncertainty’ (1998) 44(7) Management Science 879CrossRefGoogle Scholar.
134 Lord Hodgson, above n 3, at 4.
135 A good example of those difficulties is that the authors of this paper could not agree on how the Government's advice on snow-clearing could be phrased more positively.
136 C Fairbairn and J Woodhouse ‘Social Action, Responsibility and Heroism Bill, Bill No 9 of 2014–15’ (2014) Research paper; UK Government ‘Social Action, Responsibility and Heroism Bill, fact sheet’ (5 August 2016) https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/318839/sarah-bill-fact-sheet.pdf (accessed 4 February 2019).
137 Fairbairn and Woodhouse, above n 136.
138 What does ‘must have regard to’ mean? What is a ‘predominantly responsible approach’? When is someone acting for the ‘benefit of society or parts thereof’?
139 Critics argue that SARAH 2015 is also a questionable use of legislative resources. See Lord Pannick, Hansard, HL Deb, vol 756, col 1563, 4 November 2013.
140 Eg s 680 of the German Civil Code limits tort liability of rescuers to intent or gross negligence if there was an imminent danger for the life or health of the injured person.
141 See 42 USC 14501-05. Immunity does not extend to harm caused by a volunteer operating a motor vehicle.
142 Horwitz, J and Mead, J ‘Letting good deeds go unpunished: volunteer immunity laws and tort deterrence’ (2009) 6 Journal of Empirical Legal Studies 585CrossRefGoogle Scholar.
143 Ibid.
144 Ibid, at 627.
145 Lord Young ‘Common sense common safety’ (Cabinet Office, 2010) at 15.
146 Our analysis does not deal with issues of causation and remoteness and we have not addressed potential questions regarding the defences available against an action in negligence, particularly contributory negligence and volenti non fit injuria.