Compensation Bill [HL]

My Lords, I have not in fact left Part 1, and I now turn to the detail of the questions that the noble Lord, Lord Hunt of Wirral, raised. As the noble and learned Lord, Lord Mayhew, rightly says, I had not addressed those questions and, of course, I should at this stage. If I might, I will deal with those, and I hope that what I say will address the points that he raised. The noble Lord began by asking whether we say ““may”” rather than ““shall”” or ““must””. I have a sense of déjà vu, as I fear that I have discussed the question of ““may”” and ““shall”” in a number of different pieces of legislation in your Lordships’ House. We have sought to recognise that the circumstances may vary from case to case. In our view, it would not be appropriate—we are back to the classic ““may”” or ““shall”” argument—to say that it should be taken into account in all cases. I hope though that the courts would consider in every case whether it is relevant to look at that factor. In what we have just done in legislation, we believe that it would be inappropriate to say that the courts had to take it into account. The noble Lord asked me about professional negligence and clinical negligence cases. As the noble Lord, Lord Hunt, rightly says, the provision potentially does extend to all claims in negligence—as indeed does the current approach of the courts, which this reflects. The courts have considered it relevant in the context of professional negligence only in limited circumstances. We think nothing in the clause requires it to be taken into account more widely than it currently is. Therefore, in a sense, we are staying with the status quo. The noble Lord also asked me about breaches of statutory duty and discussed the famous Tomlinson case, which I have come to know a lot about. The clause relates to claims in negligence at common law and therefore does not apply to any statutory duty. The noble Lord asked me, too, about issues relating to educational recreational activity and accidents at work or road traffic accidents. Again, the provisions are not restricted to particular types of activity—it will be a matter for the courts, as now, to decide whether and to what extent it is relevant in the particular circumstances of an individual case. We have tried all through our work on Clause 1 to ensure we retain the flexibility and ability of the courts to develop the common law as appropriate. I think that we have captured that well, but I look forward to our Committee discussions on that. I turn to the point the noble and learned Lord, Lord Mayhew, made, which is the source of the words ““desirable activity””. Noble Lords will appreciate that we spent considerable time looking at the words that we selected. In ““desirable activity””, we think that we have embodied a concept and approach that the courts have not consistently described in one term. The concept is the established one of taking the wider social value of activities into account, and the courts are of course very familiar with it. In a sense, that goes back to what the noble Lord, Lord Lucas, said about the kind of activities. Although it will be for the courts to interpret, we think that we have captured in that term the sort of activities that we wish to capture in Clause 1. It reflects existing law. The courts already can and do take such matters into account. In our discussions throughout government and much wider, we have provided a provision that courts will be able to apply without undue difficulty, reflecting the state of the law as it is. I hope that the noble and learned Lord, Lord Mayhew, and others will reflect on that.