Compensation Bill [HL]

I am always grateful for the interventions of the noble Lord, Lord Phillips of Sudbury. I understand what he is saying although, as I said, we had many discussions on this in the previous sitting. But as a non-lawyer, I believe that what we have sought in Clause 1 is to say that the courts may look at something that the courts already look at—which is why, for some colleagues, the clause does not go far enough. I do not feel in my heart of hearts that I have somehow bound the House of Lords in a way inappropriate to the way in which the common law operates now or will operate in future. I am willing to be told by legal colleagues that that is not true but, frankly, it does not feel like that. I should like to get back to the Bill and deal with the issue of 100 per cent contributory negligence. Members of the Committee will know better than I the terms of the Law Reform (Contributory Negligence) Act 1945, which allows the courts to take into account the claimant’s behaviour and how much that behaviour has affected and contributed to what has happened to the individual. Courts can reduce the amount of damages awarded to whatever extent the courts think right. Members of the Committee will know from their vast experience—and certainly I found—many examples of 20 per cent, 30 per cent, 40 per cent, 50 per cent and 75 per cent, 80 per cent and 90 per cent contributory negligence in looking at different cases in which the courts were very clear that although the actions that were taken were negligent, the way in which the individual had behaved had contributed to a greater or lesser degree. The case that I was particularly struck by was Jayes v IMI (Kynoch) Ltd, which will be familiar to some noble Lords. The judgment said:"““It must be borne in mind that in a case of this kind the court does not, for example, hold that there is 1 per cent or 2 per cent fault on the part of the employer and 99 per cent or 98 per cent fault on the part of the workman. There comes a point in time where the degree of fault is so great that the court ceases to make fine calculations of that kind and holds that in practical terms the fault is entirely that of the workman””." As a non-lawyer, I read that to mean that the courts could effectively say that when you look at a judgment there is such a fine line that it would be appropriate, in the sense of 100 per cent. But I am very clear that it would be for the courts to determine in considering individual circumstances and taking into account, as they can, what was done in the 1945 Act. To add this would cause confusion because we already have the 1945 Act and we already have many cases in which the courts have very properly said that the circumstances warrant that contributory negligence was a major or minor factor, and that it was taken into account when awarding damages. We should not accept the amendment for the reasons I have given. But I hope that the noble Lord will feel that the issue has been aired, as I know that lay behind the tabling of the amendment, and that he will feel able to withdraw it.