Compensation Bill [Lords]

That is an interesting point, which would benefit from further research. It is difficult to know what was going on across the board during that intermediate period. I have a different view: I believe that what is really going on is that the insurance companies want an excuse, or an explanation, for the vast increase in premiums that they have been imposing during the more recent period. Instead of pointing to their own problems in managing their investments, they point to various claims and start talking about the compensation culture. The question is whether clause 1 by itself can deal in any useful way with the perception of excessive litigation. The Government repeated today that they are not trying to change the law, which raises the issue of how the clause can make a difference. There is a particular problem in respect of ““breach of statutory duty””, which was added by the House of Lords and which poses a grave danger that the Bill will change the law, accidentally. ““Breach of statutory duty”” is a very slippery phrase, covering a wide range of types of legal action. It covers types of liability that do not quite constitute negligence. Reference was made earlier to the test of reasonable practicability. We are talking about something that is not strict liability. I fear that clause 1 will accidentally apply to such actions, and will reduce liability. The clause attempts to bring statutory form to the law after Tomlinson. It came as no great surprise to most lawyers that the Tomlinson case went the way that it did. The law with which we are dealing dates back to 1946—to the Daborn case, which involved the use of a left-hand-drive ambulance during the war. I think that this answers the points made by the hon. Member for Canterbury (Mr. Brazier). The ambulance was involved in an accident, and the question that arose was whether the fact that we were at war and needed all the ambulances we could get, including American ambulances, could be taken into account in determination of whether the way in which the ambulance had been driven was negligent. The Court of Appeal decided that there was no liability, because what could be taken into account was what Lord Justice Asquith called"““the importance of the end to be served by behaving this way or that””." That has been the law for 60 years. When judging whether a precaution is required by the law of negligence, we must judge whether the benefits of the extra precaution that it is claimed should have been taken—including the social benefits—outweigh the costs. There has been no change in the law in that regard. It seems to me that the case raised by the hon. Member for Canterbury is simply a case in which the established rule has been badly applied. The problem is that there is no way in which an extra law can be passed to stop judges from getting the existing law wrong in its application. We cannot make laws about the application of the law. That is trying to do too much; it is expecting too much out of statutes. The legal system is peopled by human beings, who make mistakes. Error is inevitable, which is why there are appeals. Error is inherent in a system where someone is allowed sometimes successfully to sue somebody else for damage caused by their fault. Occasionally the system will go wrong, and a case will get through in which damages are unjustifiably paid. The only way to prevent that is by having no liability at all.