Compensation Bill [Lords]

Exactly—my hon. Friend is right. We will have a plethora of cases interpreting the provision. The courts could, in the end, come to the same conclusion as the Minister and say that there is no difference between it and the existing common law. They may rely on Pepper v. Hart and say that that is what the Government said. However, I doubt that. Even if that were the case, it would happen only after extensive, expensive examples were tried in the House of Lords—or, possibly by then, the new supreme court. In reality, clause 1 creates a brand new series of defences, rebalancing the scales of justice against injured employees, travellers or schoolchildren and in favour of the multinational insurance industry. It does not replicate the key point in Tomlinson that willing consent to the risk is necessary, and that the principles laid down there are not appropriate when there is a real lack of informed choice or an imbalance of power, such as between an employer and employee, or a public authority as against children and vulnerable pensioners. I am truly appalled that a Labour Government should propose such a measure to weaken the rights of the small person against the mighty insurer. The Government say that there is no need to exclude employment accidents from clause 1, but some jobs involve more desirable activities than others. Some are very desirable, but hazardous; some are less so, but safer. When I was in practice, for many years I represented injured firefighters. The principles of liability towards firefighters were well established in the House of Lords many years ago in the case of Ogwo v. Taylor. The clause considerably weakens those principles, and reopens some of the arguments that were put forward by the defence in the House of Lords and rejected. A seriously injured firefighter could well see his or her right to compensation undermined or even removed by the rebalancing of the law. Of course, if the employment were a less desirable activity, perversely, the new defence would not work. There would thus perhaps be stronger protection for people with less desirable occupations. Journalists, estate agents or even Members of the House might thus attract greater protection than a firefighter, who does what might be considered to be a more desirable activity. The situation becomes even worse when we find that clause 1 goes beyond negligence and covers breaches of statutory duty—exactly the sort of cases that Lord Hoffmann said should be excluded from the test in Tomlinson. Statutory duties underpin the health and safety regime, especially for some of the most dangerous occupations, such as those in construction. Contrary to the Government’s contention in the other place, very few of those statutory duties are absolute duties. There is a strong argument that we do not comply with EU directives in that respect already. The duties are circumscribed by conditions that use such phrases as ““reasonable practicability””, ““practicability””, ““appropriate””, ““suitable”” and ““adequate””. Some duties are already too weak, without watering down the protection still further through the desirability defence. All the duties apply without fail when there is an asymmetric power relationship, such as the employee-employer relationship, the relationship between a public authority and an individual citizen, or the relationship between an occupier and a visitor. If we are thinking about the construction industry, should we consider whether some projects are more desirable than others? For example, people might think that it is rather more desirable to build Wembley stadium than it was to build the dome. What about the position of children? What of a school-run mum who crashes her 4x4 while ferrying her children and her neighbour’s children to school? Going to school is a desirable activity, which might weaken the case, but it could be argued that it would have been rather more desirable for the occupants of the vehicle to walk to school, instead of going by car. There could thus be an argument about which activity would be more desirable. In those circumstances, there would be a risk of there being a lesser standard for the passengers, and anyone whom the mum hit crossing a red light, than would be the case if the accident happened on the way home and the occupants of the vehicle had decided to call at McDonald’s for an unhealthy burger and chips, which could well be considered to be entirely undesirable. There is thus a paradox. It simply cannot be right that a less desirable activity gives the claimant a stronger case.