Compensation Bill [HL]

I was grateful for the apology from the noble Lord, Lord Hunt of Wirral, for winning the last amendment. I, too, stand by what I said, and I accept entirely what he was seeking to achieve. If we are able to retain it within the legislation on the grounds that, as he recognises, none of us is seeking to change the law, I would be delighted. We will discuss the wording that might ensue from that at the earliest opportunity. As the noble Lord, Lord Goodhart, said, this amendment is different, as it takes us to a different place. Like him, I consider that if one were to alter the Occupiers’ Liability Act 1984, separate legislation would be better as it would allow a fuller consideration. That is an important point, which noble Lords need to take on board. Let me explain why I do not wish to accept the amendment. The noble Lord, Lord Hunt of Wirral, has already indicated what we did within the Criminal Justice Act 2003, while recognising that that was about trespass—or assault as I know it as a non-lawyer—against the person. I have checked, and we can find no evidence whatever of any reported case that has found in favour of criminals in terms of negligence. I would therefore argue that the courts are doing their job extremely well. In any event, these claims seldom arise, and as noble Lords involved in the legal profession in particular will know, the courts already take into account all the circumstances of the case. A number of factors will limit the possibility of any claim by a criminal succeeding, and do so effectively, as borne out by the lack of evidence of such claims. For example, the courts will always take into account the reason why a trespasser was on the property, which is clearly relevant to foreseeability and the steps that it is reasonable to take to avoid a risk of injury to persons on a property. The amendment seems intended to go further in providing for the courts to take into account the intention of the trespasser. We believe, however, that the courts do that very well already. Any claim by a criminal is likely to raise the common law maxim, which I have in Latin, but which I will say in English—an action does not arise from an unjust cause. How far that maxim would remain applicable over and above the statutory provision that the amendment would make is not clear. In practical terms, it is also difficult to assess the intentions of the claimant and to establish whether they entered on land intending to commit an offence. Of course, if a burglar comes into one’s house in the dead of night, that is clear cut; but there will be cases that are not clear cut. It is therefore important that we allow the courts to determine the matter as they currently do. We believe that the amendment could create some arbitrary outcomes. As I have indicated, the Occupiers’ Liability Act 1984, were it to be looked at again, should be looked at separately. I am always willing to pass on that view to my ministerial colleagues with that responsibility. The Act provides, of course, that no duty is owed in respect of risks willingly accepted as his by the claimant. The amendment uses the same words, but for the different purpose of deciding what should be done to meet the standard of care. My second concern is therefore that this amendment might create confusion in the law, which the Government could not accept. Of course, the question of whether a claimant willingly accepted a risk as his is a well established principle of common law—you cannot sue for something to which you expressly agreed; again, I have the Latin version of that, and though noble Lords would like to hear it, I hesitate to try to get my Latin accent accurate. That is always taken into account by the courts when deciding any claims. If we wished to re-examine the particular statute, we should do so appropriately and not via this Bill. There is no evidence to suggest that the courts are doing anything other than considering the issues appropriately in terms of acceptance of risk and the balance to be struck between rights and responsibility. We therefore think that the amendment is unnecessary. Whereas I fully accept the need to deal with issues of perception, and I understand the principle of the last amendment put forward by the noble Lord, Lord Hunt of Wirral—even though I could not accept the amendment as it stood—I will now be in a slightly different position. The principle behind Clause 1 is to try to tackle the perception. This is a different case, because it is about changing the law, which is not the appropriate way to tackle this issue. I hope that the noble Lord will withdraw the amendment and allow the Government to take the matter forward on a different route if that seems appropriate.