Compensation Bill [HL]

moved Amendment No. 16:"After Clause 1, insert the following new clause—" ““BURDEN OF PROOF (1)   Subject to subsection (2), it shall be for the claimant to prove, on the balance of probabilities, all elements of the alleged negligence, having regard to section 1 above. (2)   It shall be for the defendant to prove, on the balance of probabilities, that the activity or facility in question was for the purpose of public benefit.”” The noble Lord said: I shall not detain the Committee long on Amendment No.  16. It would insert a new clause concerning the burden of proof. It is an attempt to clarify the burden of proof. My reading of Clause 1 as it stands is that while the intention is good, it is likely that the test will be used as an additional hurdle for the parties to face in seeking to deal with a claim. It may also form the basis of applications by those seeking to maintain a claim asking for pre-accident disclosure of the sort of documents referred to by the noble Earl—risk assessments. Claimants may well want to see copies of the risk assessments and therefore we may be creating more litigation rather than less. I hope the clause does make it clear that the defendant will have to prove that the activity or facility is for public benefit, but that once it has been done, the claimant has to prove all the remaining elements of the negligence. Thus with a school trip, for example, the defendant would show that the purpose of the trip was one of public benefit and the claimant would then have to show that certain steps should have been taken which would not have prevented the trip taking place. This goes back to the point made a few moments ago that any government, in introducing a new phrase into the law, are introducing a provision which changes the law. The extent to which it makes a change to the law is a matter of some concern to us, particularly that any such change will occur if the burden of proof changes. Certainly the advice I have received suggests that this clause will change the burden of proof by establishing an additional hurdle or test of ““desirable activity””. I beg to move.