Compensation Bill [HL]

moved Amendment No. 3: Leave out Clause 1. The noble Lord said: My Lords, this is a serious point of principle, and I think this is the only occasion on which I shall be moving something that I would regard as a point of principle. It is a fundamental matter—that is, whether Clause 1 should remain part of the Bill. In Grand Committee, and in Second Reading before that, I was critical of Clause 1. The Government say that Clause 1 merely restates the existing law. They say, and I agree, that the present state of the law is satisfactory. In a strong, commonsense judgment by the noble and learned Lord, Lord Hoffmann, in the case of Tomlinson v Congleton Borough Council, the Appellate Committee of your Lordships’ House ruled that the borough council did not have to fence off a pond in a park in order to prevent a stupid young man diving into shallow water and breaking his neck. There are, of course, reports of cases where damages have been awarded to people who are the authors of their own misfortunes. It is difficult to find authentic texts for these judgments and I suspect that some of them are urban myths. Some of them are reported; some were decided before the law was clarified in the Tomlinson case; and some are simply bad decisions, which are unavoidable in any legal system. At best, Clause 1 is unnecessary as it merely reflects the existing law, but I believe that in fact Clause 1 is worse than that—it is positively damaging. It tries, in effect, to crystallise the existing law—something that I would expect any text book on the law of negligence to take several pages to do. The trouble is that an Act of Parliament, once enacted, is an Act of Parliament, and the courts will have to interpret Clause 1, or Section 1, as it will then be. The court will have to consider what a desirable activity is. To what extent will the fact that the activity is desirable mean that standards of care are reduced? With Clause 1, I fear that we will have a good many years of satellite litigation over the interpretation, which will lead to restrictions on the ability of the common law to develop flexibly and in line with the needs of the day. Clause 1 could be interpreted so as to restrict what I think most of us would regard as legitimate claims for damages. Let us take, for example, rock climbing, which most of us would regard as something adventurous and as a desirable activity for the young people who want to undertake it. It carries an inherent risk. You may, for instance, get an unpredictable rockfall or an accident that is due to nobody’s carelessness. If I was a parent whose child was seriously injured in a climbing accident on a climbing course, I would be appalled if my child could not get damages if the accident was due to their being sent out with a frayed rope or under the charge of an untrained and incompetent leader. The fact that the leader may be a volunteer is no excuse for their lacking the necessary skill. It should be no defence for organisers to say, ““We couldn’t afford to pay for trained leaders””. Maybe Clause 1 says that that is not a defence—I certainly hope that it is not—but maybe the clause will be interpreted by the court to mean that it is a defence. I believe that Clause 1 is useless and potentially damaging. That view is shared by the House of Commons Select Committee on Constitutional Affairs, which concluded, in paragraph 67 of its report:"““We agree with the majority of the evidence that we have received that clause 1 to the Compensation Bill . . . is unnecessary. We have concluded that it should not be in the Bill. While it is undoubtedly well meaning, it satisfies neither those who wish to reduce risk aversion in society, nor those requiring legal certainty. It is impossible to encapsulate the law of negligence in a single sentence . . . If clause 1 were implemented, it would undoubtedly, at least in the short term, lead to an increase in costly satellite litigation to define what is a ‘desirable activity’. Moreover, the wide breadth of that term (or any alternative proposed such as ‘social value’ or ‘utility’) could have unforeseen consequences, since while the Government states that it is not intended to change the law, it is likely that interested parties will seek to rely upon the clause before the courts in order to improve their shield against liability. This could result in possibly inconsistent decisions where judges try to refine further the concept of ‘desirable activity’””." I have also received a briefing from the Association of Personal Injury Lawyers, which is critical of Clause 1. You may say of that organisation, ““They would say that, wouldn’t they?”” But I was particularly struck by one point that it makes, which seems to me to be obvious common sense. If schools, not-for-profit organisations or other promoters of desirable activities have reduced standards of care, parents are less likely to entrust their children to them and access to activities will be reduced. What will the reaction be if a child is injured as a result of the incompetence of a teacher and that child is refused damages because he or she was taking part in a ““desirable activity””? It is widely recognised that the problem is not the law but the perception of the law. It is, of course, easier to change the law than to change the perception, but doing so does not deal with the problem. There is a real risk—and it is a risk to which I am averse—that the courts could regard themselves as bound to impose lower standards of care in cases of desirable activities as a result of Clause 1. I believe that the first time the claim of a child injured by the carelessness of a group leader is refused because of Clause 1, there will be a far bigger outcry than we get from the other side of the argument now. I beg to move.