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Restating the common law? The Social Action, Responsibility and Heroism Act 2015

Published online by Cambridge University Press:  02 January 2018

James Goudkamp*
Keble College, Oxford
James Goudkamp, Email:


The Social Action, Responsibility and Heroism Act 2015 entered into force on 13 April 2015. It is too soon for it to have been considered judicially, and it has not yet been subjected to sustained academic analysis. Accordingly, this article considers its impact. In doing so, it situates the Act in its social context and draws attention to the fact that it is part of a large network of statutes that share the same objectives. It is argued, contrary to prevailing views, that parts of the Act change the law. It is also maintained that the Act’s reach is not confined to personal injury cases or even to tort cases. It potentially applies far more widely, including to contractual actions that allege a failure to take reasonable care. In addition to analysing the Act, this article investigates why the legislature might want to restate the common law (which is what the Act does in part), whether replicating the common law is desirable and, if the legislature is bent on restating the common law, how it should go about doing so.

Research Article
Legal Studies , Volume 37 , Issue 4 , December 2017 , pp. 577 - 598
Copyright © Society of Legal Scholars 2017

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Fellow, Keble College, Oxford; Associate Professor, Oxford Law Faculty; Associate Academic Fellow, Inner Temple; Senior Honorary Research Fellow, Faculty of Law, University of Western Australia; Professorial Fellow, School of Law, University of Wollongong; barrister, 7 King's Bench Walk. Early drafts of this article were presented at seminars at the University of Queensland and the Queensland University of Technology. I am grateful to the participants in those seminars for their helpful comments, especially to Kit Barker. I am also indebted to the anonymous referees, both of whom made a series of valuable suggestions.


1. The recent surge of legislation in the tort law context is addressed in TT Arvind and J Steele (eds) Tort Law and the Legislature: Common Law, Statute, and the Dynamics of Legal Change (Oxford: Hart Publishing, 2013).

2. The Act and its context are treated comprehensively and insightfully in A Morris ‘Spiralling or stabilising? The compensation culture and our propensity to claim damages for personal injury’ (2007) 70 MLR 349; Morris, AThe “compensation culture” and the politics of tort’ in Arvind, TT and Steele, J (eds) Tort Law and the Legislature: Common Law, Statute, and the Dynamics of Legal Change (Oxford: Hart Publishing, 2012) ch 15Google Scholar.

3. Most of the Act does not apply to Scotland: s 17(1).

4. The Hon Bridget Prentice MP (then the Parliamentary Under-Secretary of State for Constitutional Affairs) said during the second reading of the Bill that became the Compensation Act 2006: ‘we are determined to tackle practices that might stop normal activities, because people either fear litigation or have become risk-averse. We want to stop frivolous or speculative claims for compensation, and the provisions in the Bill will help us to do just that. They will reassure people who are concerned about being sued that, if they adopt reasonable standards and procedures, they will not be found liable’ (HC Deb, 8 June 2006, vol 447, col 419).

5. As to the relationship between s 1 and the common law, see the text accompanying nn 105-113, below. The Act's Explanatory Notes at [18] state that s 2 ‘reflect[s] the existing law’. This appears to be correct. For example, in Glasgow Corp v Muir [1943] AC 448 (HL) 455 Lord Thankerton said that ‘to express regret, ex post facto, that [the defendant] did not take some step which it is now realized would definitely have prevented the accident… is not an admission in the sense that it can bind the [defendant]’.

6. For a conspectus, see A Mullis and A Scott ‘Tilting at windmills: The Defamation Act 2013’ (2014) 77 MLR 1.

7. The Rt Hon Kenneth Clarke MP (then the Lord Chancellor and Secretary of State for Justice) said during the second reading speech of the Defamation Bill 2012 that ‘Our intention is to correct the worst excesses of our current system in which, particularly for the powerful and wealthy, the law makes it rather too easy to menace responsible publishers with libel proceedings. … We do not want to open the floodgates to endless litigation in our courtrooms by people whose feelings have been hurt but who have not suffered any particular damage’ (HC Deb, 12 June 2012, vol 546, col 179). It is contended in one recent article that ‘Overall the changes to the law of defamation introduced by the Act will largely favour defendants’: D Hooper, K Waite and O Murphy ‘Defamation Act 2013 - what difference will it really make?’ (2014) 24 Ent L Rev 199, 206.

8. Section 1(1).

9. Duke of Brunswick v Harmer (1849) 14 QB 185.

10. Section 8(3).

11. Section 5. See also the Defamation (Operators of Websites) Regulations 2013.

12. Section 16(2)-(7).

13. ‘Whether the Act will prove to have any profound impact on the nature and extent of defamation proceedings remains an open question’: A Mullis, R Parkes and G Busuttil (eds) Gatley on Libel and Slander (London: Sweet & Maxwell, 12th edn, 2013) [1.1]. ‘Much will depend on the judicial reception of the Act’: Mullis and Scott, above n 6, 108.

14. Cf McBride, NJ and Bagshaw, R, Tort Law (Harlow: Pearson Education, 5th edn, 2015) p 545 Google Scholar (‘the reality is that the Act does not do very much to bring about fundamental change in the law of defamation’).

15. See eg ‘Chris Grayling vows to “slay health and safety culture”’, The Telegraph, 19 June 2014, see (accessed 15 June 2016); ‘One in three passers-by will not administer first aid because they fear being sued’, The Telegraph, 4 September 2014, see (accessed 15 June 2016); ‘Opposition MPs question need for Chris Grayling's social action bill’, The Guardian, 12 September 2014, see (accessed 15 June 2016).

16. HC Deb, 21 July 2014, vol 566, col 1194.

17. C Grayling, Press Release, 2 June 2014 ‘Grayling: law must protect everyday heroes’, see (accessed 15 June 2016).

18. See the text accompanying n 80, below.

19. One short contribution is Editorial ‘Is it a bird? Is it a plane? Well it certainly isn't legislation’ (2015)36 Stat L Rv.

20. Dugdale, A (ed) Clerk & Lindsell on Torts (London: Sweet & Maxwell, 21st edn, 2014)Google Scholar [8-174D].

21. See the text accompanying nn 16-17, above.

22. Contributions include K Williams ‘State of fear: Britain's “compensation culture” reviewed’ (2005) LS 499; R Mullender ‘Negligence law and blame culture: a critical response to a possible problem’ (2006) 22 PN 2; R Lewis, A Morris and K Oliphant ‘Tort personal injury claims statistics: is there a compensation culture in the United Kingdom?’ (2006) 14 TLJ 158; Morris (2007), above n 2; Morris (2012), above n 2; R Lewis and A Morris ‘Tort law culture in the United Kingdom: image and reality and personal injury compensation’ (2012) 3 JETL 230; R Lewis ‘Compensation culture reviewed: incentives to claim and damages levels’ [2014] JPIL 209; Quill, E and Friel, RJ (eds) Damages and Compensation Culture: Comparative Perspectives (Oxford: Hart Publishing, 2016)Google Scholar.

23. HC Deb, 21 July 2014, vol 566, col 1190.

24. Ibid, col 1194.

25. Ibid, col 1191.

26. Ibid, col 1187. See the text accompanying n 27, below.

27. HC Deb, 21 July 2014, vol 566, col 1187. The Compensation Recovery Unit administers a scheme whereby social security payments made to claimants are deducted from compensation awards. Its work is addressed in Lewis, Morris and Oliphant, above n 22, 159-161. These scholars write (at 159) that the Compensation Recovery United ‘presently holds the most comprehensive data on the number of current personal injury claims’.

28. Compensation Recovery Unit ‘Number of cases registered to the CRU’ see (accessed 15 July 2016).

29. Ibid. According to Lewis, Morris and Oliphant, above n 22, 159, the information regarding settlements ‘is currently of limited use because there is a considerable element of double-counting of interim and final compensation payments’.

30. Low, N et al Helping Out: A National Survey of Volunteering and Charitable Giving (London, Cabinet Office, 2007)Google Scholar.

31. Ibid, 7.

32. Ibid, 68. The same conclusion was reached by the Civil Society Red Tape Task Force in its report Unshackling Good Neighbours (2011), which had been commissioned by the government to investigate disincentives to volunteer. The Task Force declared that fear of being sued was a deterrent (without offering any empirical evidence in support).

33. HC Deb, 21 July 2014, vol 566, col 1192.

34. Low et al, above n 30, 68.

35. The Act was brought into effect gradually. The commencement details, which are complex, are given in Ministry of Justice, Memorandum to the Justice Select Committee: Post-Legislative Assessment of the Compensation Act 2006 (London: The Stationery Office, Cm 8267, 2012) [42]-[53]. It suffices for present purposes to observe that the Act did not come fully into effect until April 2007, ie far too late for it to have had an impact on study in issue.

36. A government press release regarding SARAH said that SARAH represents ‘ongoing work by the governmentto tackle the growth of compensation culture’: see n 17, above, emphasis added.

37. See the text accompanying n 5, above.

38. See the text accompanying nn 6-14, above.

39. The interrelation was made explicit in HC Deb, 21 July 2014, vol 566, cols 1190-1191 (Mr Grayling).

40. Two high-profile cases seemed to galvanise Parliament into legislating in this regard. The first was the Tony Martin case: see R v Martin [2001 ] EWC A Crim 2245; [2003] QB 1. The second involved the Hussain brothers: see R v Hussain [2010] EWCA Crim 94; [2010] 2 Cr App R (S) 60.

41. Section 3(1) of the Criminal Law Act 1967 provides for this defence. It states: ‘A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large’.

42. Although prevention of crime is also a defence to liability in tort (see eg Pollard v Chief Constable of West Yorkshire Police [1999] PIQR P219; Roberts v Chief Constable of Kent [2008] EWCA Civ 1588; [2009] Po LR 8; McDonnell v The Commissioner of Police for the Metropolis [2015] EWCA Civ 573), s 76 operates only in the criminal context (see s 76(1)).

43. See esp s 76(5 A), which stipulates: ‘In a householder case, the degree of force used by D is not to be regarded as having been reasonable in the circumstances as D believed them to be if it was grossly disproportionate in those circumstances’. For discussion, see R (Collins) v Secretary of State for Justice [2016] EWHC 33 (Admin); [2016] 1 Cr App R 25.

44. Crime and Courts Act 2013, s 43.

45. For discussion, see S Miller ‘“Grossly disproportionate”: home owners' legal licence to kill’ [2013] J Crim L 299.

46. Treatments of s 69 are offered in N Tompkins ‘Civil health and safety law after the Enterprise and Regulatory Reform Act 2013’ [2013] JPIL 203; P Limb and J Cox ‘Section 69 of the Enterprise and Regulatory Reform Act 2013 - plus ca change?’ [2014] JPIL 1; A Roy ‘Without a safety net: litigating employers’ liability claims after the Enterprise Act' [2015] JPIL 15.

47. Section 69(2).

48. Young, Lord, Common Sense, Common Safety (London: HM Government, 2010)Google Scholar. As to this report, see J Goudkamp ‘The Young Report: an Australian perspective on the latest response to Britain's compensation culture’ (2012) 28 PN 4.

49. Young, above n 48, 5.

50. Ibid, 39.

51. See Department for Work and Pensions, A Final Report on the Implementation of Health and Safety Reforms (2015) 12.

52. Jackson, R Review of Litigation Costs, Final Report (London: The Stationary Office, 2010)Google Scholar. For critical assessment, see A Zuckerman ‘The Jackson Final Report on costs: plastering the cracks to shore up a dysfunctional system’ (2010) 29 CJQ 263; Working Group of Civil Litigation Costs, On a Slippery Slope: A Response to the Jackson Report (Institute for European Tort Law, 2011); R Lewis ‘Litigation costs and before-the-event insurance: the key to access to justice?’ (2011) MLR 272.

53. Sections 44(4), 46(1).

54. Section 44(2); Conditional Fee Agreements Order 2013 (No 689) r 5(1)(a).

55. Section 56.

56. Ministry of Justice ‘Policy Paper: 2010 to 2015 government policy: civil justice reform’ (2015), appendix 2.

57. Section 57(1)(b).

58. Section 57(2).

59. Section 58 was inspired by a recommendation made by Lord Young in his report: Lord Young, above n 48, annex H.

60. Ministry of Justice, Claims Management Services Regulation, Conduct of Authorised Persons Rules 2014, r 6(b) (‘In soliciting business through advertising, marketing and other means a business must: … b) Not offer any cash payment or a similar benefit as an inducement for making a claim’). These rules were made pursuant to cl 22 of the Compensation (Claims Management Services) Regulations 2006 (SI 3322/2006).

61. (1764) 1 Wm Bl 533, 534; 96 ER 309, 309.

63. The Social Action, Responsibility and Heroism Act 2015 (Commencement and Transitional Provision) Regulations 2015, cl 2.

64. As Lord Walker of Gestingthorpe observed, the Law Commission had been ‘bypassed completely’: HL Deb, 15 December 2014, vol 589, col 20. His Lordship considered that this came ‘close to a constitutional issue’: ibid.

65. HL Deb, 15 December 2014, vol 589, col 16.

66. Ibid.

67. Ibid, col 45.

68. Ibid, col 19.

69. Ibid, col 21.

70. Ibid, col 33.

71. HL Deb, 4 November 2014, vol 587, col 1558.

72. HL Deb, 15 December 2014, vol 589, col 33.

73. Ibid, col 44.

74. Ibid.

75. HL Deb, 4 November 2014, vol 587, col 1551.

76. HL Deb, 15 December 2014, vol 589, col 15.

77. See nn 114, 130, below.

78. SARAH is not the shortest statute that has ever been enacted. The statute that contains the fewest operative words is the Parliament (Qualification of Women) Act 1918. That Act contains just 27 operative words. SARAH contains 106.

79. Section 5(1).

80. The Social Action, Responsibility and Heroism Act 2015 (Commencement and Transitional Provision) Regulations 2015, cl 3.

81. This is clear from s 4 of the Law Reform (Contributory Negligence) Act 1945. That provision defines ‘fault’ for the purposes of s 1 of that Act as ‘negligence, breach of statutory duty or other act or omission which gives rise to a liability in tort or would, apart from this Act, give rise to the defence of contributory negligence’. See, further, Pritchard v Co-operative Group Ltd [2011] EWCA Civ 329; [2012] QB 320, 330 [30]. Arguably, the very fact a breach of statutory duty can amount to contributory negligence explains why s 1 of SARAH refers to breach of statutory duty. That reference would otherwise be a little puzzling given the shift in the law regarding actions for breach of statutory duty discussed above: see the text accompanying nn 46-51.

82. Emphasis added.

83. ‘Contributory negligence is a man's carelessness in looking after his own safety’: Froom v Butcher [1976] QB 286 (CA) 291 (Lord Denning MR) (emphasis in original).

84. But see Sabir v Osei-Kwabena [2015] EWCA Civ 1213; [2016] RTR 9, [15] [16] where Tomlinson LJ, speaking for the Court, placed weigh on the fact that the claimant did not risk the defendant's safety in considering an appeal regarding the apportionment of damages.

85. See eg the quotations accompanying nn 16, 27, above.

86. Lord Faulks said that he ‘d[id] not see any reference to breach of contract [in S ARAH’ s preamble]’: HL Deb, 15 December 2014, vol 589, col 37.

87. Beale, H (ed) Chitty on Contracts (London: Sweet & Maxwell, 32nd edn, 2015)Google Scholar.

88. Peel, E Treitel: The Law of Contract (London: Sweet & Maxwell, 14th edn, 2015)Google Scholar.

89. HC Deb, 21 July 2014, vol 566, cols 1192-1193.

90. HL Deb, 15 December 2014, vol 589, col 24.

91. Ibid, col 46.

92. See the text accompanying n 24, above.

93. See the quotations accompanying nn 16-17 and 24, above. There is a link here with the Coalition Government's ‘Big Society’ programme pursuant to which steps would be taken ‘to support and encourage social responsibility, volunteering and philanthropy, and make it easier for people to come together to improve their communities and help one another’: The Coalition: Our Programme for Government (London: Cabinet Office, 2010) 29. Paragraph 6 of SARAH's Explanatory Notes provides: ‘The Act forms part of the Coalition Government's wider programme to encourage participation in civil society and the Coalition Agreement contained a specific commitment to “take a range of measures to encourage volunteering and involvement in social action”’. For discussion of the ‘Big Society’ dogma, see MJ Smith ‘From big government to big society: changing the state-society balance’ (2010) 63 Parliamentary Aff 818.

94. This possibility is explored in A Okoye ‘The UK Social Action, Responsibility and Heroism (SARAH) Act 2015 and Corporate Social Responsibility (CSR): Potential Connections’ (2015) 26 ICCLR 373.

95. HL Deb, 15 December 2014, vol 589, cols 23-24.

96. Dugdale, above n 20, [8-174A].

97. Ibid.

98. It is suggested in Clerk & Lindsell on Torts that there must be ‘benevolent intentions’: ibid.

99. As to this principle, see Zuckerman, A, Zuckerman on Civil Procedure: Principles of Practice (London: Sweet & Maxwell, 3rd edn, 2013)Google Scholar [11.9]-[11.20].

100. ‘It is because the public has its own interest in conduct giving rise to the illegality defence that the judge may be bound to take the point of his own motion, contrary to the ordinary principle in adversarial litigation': Les Laboratoires Servier v Apotex Inc [2014] UKSC 55; [2015] AC 430, 445 [23] (Lord Sumption JSC). Cf Zuckerman, above n 99, [11.10].

101. Tomlinson v Gongleton Borough Council [2003] UKHL 47; [2004] 1 AC 46, 82 [34] (Lord Hoffmann).

102. Consider the remarks of Denning LJ in Watt v Hertfordshire County Council [1954] 1 WLR 835 (CA) 839. Cf Latimer v AECLd [1953] AC 643 (HL) 653.

103. PBC Deb, 9 September 2014, col 71.

104. Ibid.

105. For sustained treatment of s 1 of the Compensation Act 2006, see N Partington ‘Beyond the “Tomlinson trap”: analysing the effectiveness of section 1 of the Compensation Act 2006’ (2016) Liverpool L Rev (forthcoming).

106. Section 1 of the Compensation Act was inspired by nearly identical statutory provisions that exist in most Australian jurisdictions: see eg Civil Liability Act 2002 (NSW), s 5B(2)(d).

107. It was mentioned in passing in Hopps v Mott Macdonald Ltd [2009] EWHC 1881 (QB), [91]-[93]; Scout Association v Barnes [2010] EWCA Civ 1476, [34]; Reynolds v Strutt & Parker LLP [2011] EWHC 2263 (QB), [47]; Uren v Corporate Leisure (UK) Ltd [2011] EWCA Civ 66; (2011) 108(7) LSG 16, [13]; Sutton v Syston Rugby Football Club Ltd [2011] EWCA Civ 1182, [13]; Wilkin-Shaw v Fuller [2012] EWHC 1777 (QB); [2012] ELR 575, [41]-[46]; Uren v Corporate Leisure (UK) Ltd [2013] EWHC 353 (QB), [75]; McErlean v The Right Reverend Monsignor Ambrose [2014] NIQB 1, [12]; Humphrey v Aegis Defence Services Ltd [2014] EWHC 989 (QB), [112-[113].

108. Eg in Scout Association v Barnes [2010] EWCA Civ 1476, [34] Jackson LJ said that ‘the principle … now enshrined in section 1 … has always been part of the common law’. Annette Morris writes that s 1 is ‘a statutory restatement of one aspect of the common law relating to breach of duty’: Morris (2007), above n 2, 368.

109. A related phrase that features in the case law with some regularity is activity of ‘social value’: eg Scout Association v Barnes [2010] EWCA Civ 1476, [30] (Jackson LJ), [38] (Smith LJ), [53]-[54] (Ward LJ). Another perhaps cognate expression is ‘social utility’: Tomlinson v Congleton Borough Council [2003] UKHL 47; [2004] 1 AC 46, 97 [81] (Lord Hoffmann).

110. HL Deb, 15 December 2014, vol 589, col 1572.

111. It is said in Clerk & Lindsell on Torts that: ‘Given that the courts already take into account the utility of the defendant's activity when determining whether he has taken an unreasonable risk … it is difficult to see what s.2 adds to the common law’ (Dugdale, above n 20, [8.174A]).

112. See the text accompanying nn 81-84, above.

113. See n 107 and the accompanying text, above.

114. The Bill originally used the word ‘generally’ instead of ‘predominantly’.

115. HC Deb, 21 July 2014, vol 566, col 1191.

116. PBC Deb, 9 September 2014, col 62 (Mr Vara).

117. See the text accompanying nn 81-84, above, where it is argued that s 1 extends SARAH's scope to include allegations of contributory negligence.

118. The significance of this rule for the operation of the tort system is treated perceptively in PS Atiyah The Damages Lottery (Oxford: Hart Publishing, 1997) p 34.

119. ‘When considering whether a defendant was in breach of duty the issue is whether the act (s) or omission(s) which caused the claimant's damage fell below the standard of reasonable care in the circumstances. It is not, and never has b een, whether a defendant is “predominantly” or generally careful’ (Dugdale, above n 20, [8-174B]).

120. For example, in Cavanagh v Ulster Weaving Co Ltd [1960] AC 145 (HL) 158 Viscount Simons LC said: ‘It would, I think, be unfortunate if an employer who has adopted a practice, system or set-up, call it what you will, which has been widely used without complaint, could not rely on it as at least a prima facie defence to an action for negligence’. See also at 161-163 (Lord Tucker); Crafter v The Metropolitan Railway Co 300 (1865-66) LR 1 CP 300, 303

121. See, generally, Malek, H (ed) Phipson on Evidence (London: Sweet & Maxwell, 18th edn, 2015) [7-30]Google Scholar; Tapper, C Cross & Tapper on Evidence (Oxford: Oxford University Press, 12th edn, 2010) p 369 Google Scholar.

122. Laughton v Shalaby [2014] EWCA Civ 1450; [2015] PIQR P6, [21].

123. Ibid, [22].

124. Emphasis added.

125. HL Deb, 15 December 2014, vol 589, col 33.

126. Ibid, col 36.

127. Reynolds v Times Newspapers Ltd [2001] 2 AC 127 (HL).

128. Section 4(6) of the Defamation Act 2013 abolished the Reynolds privilege and installed in its place (s 4(1)) a defence of publication on a matter of public interest. As to this change, see LK Yang ‘Reynolds privilege transformed’ (2014) 130 LQR 24.

129. In Flood v Times Newspapers Ltd [2012] UKSC 11; [2012] 2 AC 273, 300 [79] Lord Phillips of Worth Matravers PSC spoke in terms that suggest that he regarded these words as synonyms. However, in Jameel (Mohammed) v Wall Street Journal Europe Sprl [2006] UKHL 44; [2007] 1 AC 359, 383 [55] Lord Hoffmann appeared to distinguish them.

130. As introduced, the Bill that became SARAH would have added to the end of s 4 the words ‘and without regard to the person's own safety or other interests’.

131. HC Deb, 21 July 2014, vol 566, col 1193.

132. For development of this idea, see Fuller, LL, The Morality of Law (New Haven, CT: Yale University Press, 1964) ch 1Google Scholar.

133. See the text accompanying n 91, above.

134. PBC Deb, 4 September 2014, col 21 (Mr Wrack).

135. The government considered that s 4 restates the common law: PBC Deb, 9 September 2014, col 62 (Mr Vara).

136. ‘The saving of life or limb justifies taking considerable risk’: Watt v Hertfordshire County Council [1954] 1 WLR 835 (CA) 838 (Denning LJ). See also at 838 (Singleton LJ).

137. ‘The law recognises that a rescuer may, in effecting or attempting to effect [sic] a reduction of risk to others, imperil of his own life and limb: and the greater the risk to others that he is trying to avert, the greater the imperilment to his safety the law will accept as reasonable’: Tolley v Carr [2010] EWHC 2191 (QB); [2011] RTR 7, [22] (Hickinbottom J). A dated but still the best analysis of how tort law applies in rescue situations is AM Linden ‘Rescuers and Good Samaritans’ (1972)10 Alta L Rev 89.

138. McBride and Bagshaw, above n 14, 261 (footnote omitted).

139. Leading treatments include P Cane ‘Reforming tort law in Australia: a personal perspective’ (2003) 27 MULR 649; H Luntz ‘The Australian picture’ (2004) 35 VUWLR 879; B McDonald ‘Legislative intervention in the law of negligence: the common law, statutory interpretation and tort reform in Australia’ (2005) 27 Syd LR 443.

140. See eg Civil Liability Act 2002 (NSW), s 61.

141. Ibid, pt 8.

142. See eg M McGregor-Lowndes and L Nguyen ‘Volunteers and the new tort reform’ (2005) 13 TLJ 1. See also Goudkamp, JStatutes and tort defences’ in Arvind, TT and Steele, J (eds) Tort Law and the Legislature: Common Law, Statute, and the Dynamics of Legal Change (Oxford: Hart Publishing, 2012) pp 45-6Google Scholar.

143. See the text accompanying n 5, above.

144. Discussed at the text accompanying nn 6-14, above.

145. Technically, s 2 repeats the common law defence of truth as modified by s 5 of the Defamation Act 1952. It should also be mentioned that s 2 prefers the label ‘truth’ to that of ‘justification’.

146. ‘[Section 4(3)] sets out a more or less consonant version of the mainstream of the common law doctrine’: Mullis, Parkes and Busuttil, above n 13, [15.15].

147. See the text accompanying nn 135-138, above.

148. This disposition is not unique to the Parliament at Westminster. Certain of the Australian statutes mentioned above (see the text accompanying nn 139-142) contain many provisions that do nothing more than replicate the existing law: see McDonald, above n 139, 460-463.

149. Endless examples could be given. Perhaps the best illustration is s 6 of the Human Rights Act 1998. John Sorabji writes: ‘it substantially replicates the common law right to a fair trial. In this it adds little to English law’: Sorabji, JCivil procedure’ in Hoffman, D (ed) The Impact of the UK Human Rights Act on Private Law (Cambridge: Cambridge University Press, 2011) p 377 Google Scholar.

150. Cf Lord Lloyd of Berwick's remark made in the course of the Parliamentary debates regarding SARAH that SARAH was a ‘flagrant misuse of the legislative process’ because it did not ‘make new law’: HL Deb, 15 December 2014, vol 589, col 15.

151. HC Deb, 21 July 2014, vol 566, col 1187.

152. Ibid, col 1191.

153. Ibid, col 1189.

154. See eg Makdessi v Cavendish Square Holdings BV [2015] UKSC 67; [2015] 3 WLR 1373, 1387 (Lord Neuberger of Abbotsbury PSC and Lord Sumption JSC).

155. For discussion, see A Burrows ‘The relationship between common law and statute in the law of obligations’ (2012) 128 LQR 232, 236-240.

156. For an example of express abolition, see the Occupiers' Liability Act 1957, s 1(1). An excellent illustration of implicit abolition is the Law Reform Contributory Negligence Act 1945, s (1), which removes, implicitly but nonetheless clearly, the rule that contributory negligence on the part of the claimant results in the complete failure of his cause of action.

157. For illuminating discussion, see R Munday ‘Legislation that would “preserve” the common law: the case of the (hearsay) declaration of intention’ (2008) 124 LQR 46, esp 52. Munday's conclusion (at 71) is that preservation clauses are ‘either best avoided altogether or only employed when the relevant rule of common law can be exactly identified and all risk of its being further developed is safely passed’.

158. It is sometimes suggested the courts should be reticent to intervene where Parliament has shown itself to be attentive to a particular problem: see eg Siskina (Owners of Cargo Lately Laden on Board) v Distos Compania Naviera SA [1979] AC 210 (CA) 241 (Bridge LJ) (‘Now, for the court to revive or reimport a power within the sphere of the common law, the boundaries of which it is for the court itself to draw, is one thing. But to apply the newly rediscovered common law power as a means to extend a purely statutory field of jurisdiction is quite another’). Conversely, it has been posited that the courts should be slow to intrude where Parliament has been unwilling to intervene. The latter view was famously supported by Lord Reid in Shaw v Director of Public Prosecutions [1962] AC 220 (HL) 275, who wrote: ‘Where Parliament fears to tread it is not for the courts to rush in’.