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Session 2005 - 06 Publications on the internet Standing Committee Debates Compensation Bill [Lords] |
Compensation Bill [Lords] |
The Committee consisted of the following Members:Geoffrey Farrar, Gosia
McBride, Committee Clerks †
attended the Committee Standing Committee EThursday 22 June 2006(Morning)[Mr. Peter Atkinson in the Chair]Compensation Bill [Lords]Clause 1Deterrent
effect of potential
liability 9
am Mr.
Oliver Heald (North-East Hertfordshire) (Con): I beg to
move amendment No. 10, in page 1, line 11, at end
add— ‘(2) In determining
negligence the court will have regard
to— (a) the extent that
the person undertaking the activity obeyed the instructions given by
the person providing the activities,
and (b) the influence of drugs
or
alcohol.'.
No. 13, in page 1, line 11, at
end add— ‘(2) In considering
whether an activity is a desirable activity for the purposes of this
Part, the court shall have particular regard to whether the
claimant— (a) willingly
accepted a risk as his, or (b)
entered onto land or into premises with the intention of committing an
offence. (3) In determining
whether a risk was accepted for the purposes of paragraph 2(a) the
court shall decide using the same principles as in other cases in which
one person owes a duty of care to
another.'. No.
14, in page 1, line 11, at end
add— ‘(2) In considering
whether an activity is a desirable activity for the purposes of this
Part, the court shall have regard to the age of the claimant and in
particular whether the claimant
is— (a) under 10 years
of age, or (b) under 14 years
of age but can prove that he did not have the capacity to understand
the nature of his
actions.'.
Mr.
Heald: Mr. Atkinson, I reiterate my welcome to the Chair
that I gave to you and your brother Chairman, Mr. Caton. It is good to
be under your firm but wise leadership.
All three amendments deal with
the question of whether the law should encourage the public to behave
in a responsible and safe manner when enjoying leisure pursuits. Their
purpose is to look at whether there should be a legal duty to comply
with safety instructions and similar such points, because it is
important that somebody who is under the influence of drugs or alcohol,
or behaving in an obviously reckless way, should shoulder the burden
rather than others. The British Association of Leisure Parks, Piers and
Attractions, the Field Studies Council and others make
the point that in other jurisdictions it has been possible to make that
more clear than in English law.
New South Wales, for example,
has a clear formal position for dealing with claimants who are drunk or
under the influence of drugs when they behave in a particular way and
damage themselves. In the case of Radcliffe v McConnell Jones
and the Governors of Harper Adams Agricultural College, his honour
Judge Brunning found the college 60 per cent. liable for the
claimant’s tetraplegia. In that case, a student who had been
drinking dived into the shallow end of a college swimming pool. The
Court of Appeal, in overruling the decision, made the point that the
risk—that in diving the claimant might hit his head on the
bottom of the pool—was common and obvious to most adults, and
that it was important to bear that in mind. One of the judges
said: “It is
unfortunate that a number of high spirited young men will take serious
risks with their own safety and do things that they know are forbidden.
Often they are disinhibited by drink and the encouragement of their
friends. It is the danger and the fact that it is forbidden that
provides the thrill. But if the risk materialises, they cannot blame
others for their rashness”.
Another similar case was Donoghue v
Folkestone Properties Ltd. in 2003. Is there scope for clarifying
the law and making it clear, as clause 1 does in other contexts, that
it would be a defence if people undertaking activities completely
ignored the instructions that they were given by, say, the leisure park
or organiser of the activity, or were drunk or high on
drugs? Mr.
Michael Clapham (Barnsley, West and Penistone) (Lab): Is
there not a danger of putting people who are doing a job of work into a
difficult position from which it would be difficult to draw back? Let
me give the hon. Gentleman the example of a fireman who willingly
enters a building as part of his job and is injured. Linking the case
to the concept of desirability, if we accept the hon.
Gentleman’s proposals, could we not be creating a situation
whereby such a person would find that he had accepted the
risk?
Mr.
Heald: I fully appreciate that it would be a bad thing if
that were what I am proposing, but it is not. Amendment No. 10, to
which I spoke first, would require the court to have regard
to “the extent to which
the person undertaking the activity obeyed the instructions given by
the person providing the
activities” and whether
the person was under the influence of drugs or alcohol. Neither of
those would apply in the case that the hon. Gentleman mentioned.
Amendment No. 13 relates to a person who willingly accepts a risk with
the intention of committing an offence. Of course the fireman would not
intend to commit an offence. Proposed subsection (3)
begins: “In
determining whether a risk was accepted for the purposes of paragraph
2(a)”, which refers back
to entering a premises willingly but with the intention to commit an
offence. I am alive to the concern raised by the hon. Gentleman, but it
need not exist. One
could call amendment No. 13 the Tony Martin defence. It covers a
situation in which somebody enters premises willing to commit an
offence and thereby exposes himself to
risk.
Lembit
Öpik (Montgomeryshire) (LD): My reading of
amendment No. 13 suggests that proposed subsections (2)(a) and (2)(b)
actually work slightly separately. They state that they relate to
someone who
has “willingly accepted a
risk as his, or ... entered onto land or into premises with the
intention of committing an
offence.” Would that not
mean that a fireman who enters premises and gets injured in the course
of trying to put out a fire would not necessarily find it so easy to
sue the owner of the premises? There may be problems in considering
compensation for people wounded in the conduct of their work, but it
would seem unreasonable for the owner of a house that must necessarily
be a danger as it is burning to end up being sued by somebody who is
pursuing his work. There are two issues to consider and I suggest that
the hon. Gentleman is right to say that the amendment would afford some
protection against vexatious
claims.
Mr.
Heald: I am certainly always willing to be corrected on my
interpretation of my amendments, and if the Minister says that I have
got it wrong and wants to come up with an even better version on
Report, nobody will be happier than
I. Angela
Watkinson (Upminster) (Con): As the debate has turned to
firefighters and my youngest daughter is a firefighter, I feel
compelled to
contribute. There is
always a leading hand or senior officer in charge of proceedings in a
dangerous situation. There may be a case in which firefighters who have
entered a building and are in communication with the organisers of the
operation outside encounter unforeseen circumstances. They then have to
make a quick decision on their own back. I am not sure how legislation
can account for such a situation or who could be held responsible
should those firefighters sustain injury having acted in accordance
with their training and made a sudden decision that takes account of
circumstances unknown to the leading hand outside. Such a case might
come under the Health and Safety at Work, etc. Act 1974. How can such
circumstances be accounted
for?
Mr.
Heald: That makes me think a little more about the point
that the hon. Member for Montgomeryshire (Lembit Öpik) made. I
believe that under the law of negligence it has always been the case
that if somebody is working in their normal job, going about lawful
activities and is injured, and there is fault, the employer can be
found liable for damages. However, it has always been said that if the
worker acts wholly outside the normal ambit of his work and does
something reckless or completely out of line with his duties—I
think it was called a “frolic of his own” in a case
called Hilton v. Thomas Burton (Rhodes) Ltd.—the workman
cannot say to the employer, “Look, it’s your system of
work or the way you’ve employed me that is the root of the
problem”. It was always open to the employer to use the defence,
“You acted outside your instructions in a way that wasn’t
envisaged.” It is important that that protection should remain,
provided that it is properly decided on. The hon. Gentleman’s
point is a good one.
If the amendment is not drafted as well as it should be, I know that the
Minister will tell me. However, the point about accepting
risk—or acting in a criminal way—is that there should be
a defence available for the occupier or employer.
The final
amendment in the group deals with the situation of children. It is an
attempt to consider the duty that applies, even to trespassers, under
the Occupiers Liability Act 1984 and to reflect a view of the current
situation and the intention of that Act. The case of British Railways
Board v. Herrington led to that law. A child of six trespassed
over a broken fence and was injured. It was found that the British
Railways Board was liable because it was an obvious risk that a child
would go over the fence to roam and explore. The intention of the
amendment is to restrict the application of that measure to children.
We can all understand that a child is likely to climb over a fence if
it is not high enough. The amendment aims to say that while, yes, if a
child is involved, there should be liability, if someone
older—perhaps someone in their late teens or older—acts
recklessly and goes on to land, the situation is different. I am
interested to hear the Minister’s views on that.
The basic point that I am
trying to make in the group of amendments is that individuals should
have some responsibility to behave responsibly. There have been
dreadful examples of people behaving recklessly in leisure parks. As a
society, we believe that individuals should take responsibility for
their actions. The question is whether the law can be improved in these
three areas.
Mr.
Julian Brazier (Canterbury) (Con): I welcome you to the
Chair, Mr. Atkinson. The issues that we are dealing with are
fundamental to the workings of the first part of the Bill.
I start by making a quick point
that reinforces that made by my hon. Friend the Member for North-East
Hertfordshire (Mr. Heald) about firefighters. I have great respect for
firefighters. My constituency headquarters burned down just before a
general election. A young man was a tenant in the floor upstairs. The
firemen arrived and had a terrible battle with the
blaze—although none of them was injured—and the building
was completely gutted. The student’s car was outside and we
thought that we had a tragedy on our hands, but mercifully it
transpired that he was sleeping elsewhere that night.
There is a parallel with the
armed forces. I ask my hon. Friend and the hon. Member for Barnsley,
West and Penistone (Mr. Clapham) to bear in mind that we are dealing
with claims of negligence and of breach of statutory duty. The normal
route for a fireman injured on duty would not, of course, be a
negligence claim against his employer any more than would the normal
route for a soldier injured in action be a negligence claim against the
Army. The point is well made, but it is not that a fireman, through
using his initiative and seeing that he had to do something outside his
instructions, would lose the framework of protection for people injured
on duty. Far from it. We are dealing with negligence claims that are
issued against people who break the law, behave grossly irresponsibly
in disobeying instructions, or are drunk or
drugged.
9.15
am As I did on a
number of occasions in our previous sitting, I quote Andrew Caplan, the
legal adviser to the Scouts. He says:
“I am aware that the
matters listed below may be taken into consideration currently by the
court when considering the question of contributory negligence but the
law on contribution often allows the courts to make an award to the
claimant whilst recognising he was in part to blame for his own
misfortunes. The problem for the defendant is that they have to proceed
through the whole litigation process incurring significant costs and
the discount for contribution is usually very small. In addition the
defendant has to pay all the claimant’s and his own costs which
together far outweigh the cost of the damages in the majority of
cases.” My hon.
Friend cited BALPPA, which says:
“the law should encourage the
public to behave in a responsible and safe manner when enjoying leisure
pursuits. This would place participants under a legal duty to comply
with the safety instructions they receive both visually and verbally
when enjoying leisure pursuits. Whilst the current law provides a
system of contributory negligence, the Courts seldom make a finding
especially where the claimant is a child under the control of the
parent at the material time. Even where a finding is made, it is almost
unheard of for the amount to exceed 50 per cent. and more often the
figure is around 20 per cent. and fails to reflect an individual's
responsibility.” Let
me relate that to a particular example. I have twice taken my children
to a commercial leisure activity centre with the rather colourful name
“Going Ape”. Visitors have two safety ropes attached to
them and run around through a series of obstacles up in the trees.
First, a simple model is used to show the children how to operate the
equipment, after which their parents supervise them as they go round.
As somebody with quite a lot of experience of such activity from the
airborne forces, I must say that the safety standards in both the parks
that I visited were extremely high.
I have a horrible suspicion,
however, that the time will come when a parent manifestly fails to do
the simple check that they should do before their child attempts each
obstacle, and the child will be injured. Given the heights involved,
the accident could be very serious, and the operation would probably
close if a successful case were brought against it. Such operations
offer teenagers the opportunity, under strictly controlled safety
conditions, to have a hell of a lot of fun, but the court will not take
into account the fact that teenagers who are not offered such
opportunities—I will not go over the same ground as last
time—will often find other, far more dangerous ways to amuse
themselves. BALPPA
goes on to say that the Colorado ski industry in the USA was saved from
closure by a change in the law. A series of claims was successfully
brought against the industry, but it is now written into the law in
Colorado that those who disobey the clear notices telling them to ski
on piste and so on cannot bring a negligence case against the ski slope
operators. In Australia, as my hon. Friend mentioned, many states have
rewritten their laws on negligence. The wording in Western Australia
reminds the court that personal negligence can be responsible for 100
per cent. of the case.
Let me end by giving an example
of a case that did not go to court. It involves the British Canoe
Union, which settled the case on legal advice. The BCU sent details of
the case to me because it was concerned
about that legal advice. It was told that it had to settle the case;
otherwise it would face a long and costly court case, which it was
likely to lose. The BCU says that, in its marathon two years
ago, “crews were
competing over a 30 mile course in racing kayaks. Part of the course
passed through a narrow, half-mile long cutting. A volunteer marshal
was positioned at each end of the cutting to warn crews entering it
about any powered craft which could present a danger to it.
A power boat entered the
cutting and four minutes later a kayak arrived at the cutting
travelling in the same direction. The
marshal”, who was
standing on the
bank, “allowed it to
enter on the strict understanding that there was a powered craft in the
cutting and that they should not try to overtake
it.” There was no
question but that they had heard the instruction, but they ignored it
and overtook the boat. Fortunately, no one was injured, but there was a
collision and the power boat was severely damaged. The BCU
said: “A claim
was made against the volunteer marshal alleging he should have assumed
the crew would have ignored his instruction and he was therefore
negligent.” Bearing
in mind the background—which is that although one can bring
contributory negligence in court, it almost never exceeds 50 per cent,
and rarely exceeds 20 per cent—it was good legal advice that the
marshal would be better off settling than fighting back. The
BCU’s insurers paid up, but the result has been a substantial
increase in insurance costs for all subsequent races, and the volunteer
in question will never offer his services
again. My hon. Friend
made it clear to the Committee that he is not particularly wedded to
his wording; if the Government want to improve on it, that is fine. If
we want a country in which young people have the opportunity to take
risks, we must make sure that the courts do not penalise those who,
whether as volunteers—that is my main concern—or in a
commercial context, provide the opportunity for young people to take
risks in a properly structured way. On the very rare occasions when
some of them behave grossly irresponsibly—when they are drunk,
manifestly disobeying instructions or whatever—the courts should
not penalise the organisers, because if they do, we will go down the
route of losing even more of the remaining adventure training
opportunities. The result will not be fewer tragedies, as even the
Royal Society for the Prevention of Accidents has pointed out;
youngsters will go off and find alternatives, in canals and pools and
on railway lines, and in other unsupervised activities, and so there
will be far more tragedies, not
fewer.
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