---

Mr. Paterson: Two and a half more hours.

Mr. Dismore: I do not think that I have spoken for that long so far.

The question of knowledge in those circumstances—the hon. Member for North Shropshire was probably talking about it before he made his sedentary intervention—is significant. The fact remains that such a defence rarely succeeds and has become overcome or overtaken in law by the concept of contributory negligence, which is a far fairer and better way of trying to apportion the risks.

We discussed earlier some of the assumptions about risks in football games and so on, so I shall not repeat those points. As the law presently stands, agreeing to waive a claim is an important doctrine. It was best set out by Lord Denning:

"Knowledge of the risk of injury is not enough. Nor is a willingness to take the risk of injury. Nothing will suffice short of an agreement to waive any claim for negligence. The plaintiff must agree, expressly or impliedly, to waive any claim for any injury that may befall him due to the lack of reasonable care"

by the defendant under the relevant Act.

Mr. Dobson: Will my hon. Friend do us the favour of reading out again the passage to do with reasonable care, which appears to be in the law already?

Mr. Dismore: I am not highlighting reasonable care, but referring to agreement to take the risk. Of course, I am happy to read out the passage again to my right hon. Friend:

"Knowledge of the risk of injury is not enough. Nor is a willingness to take the risk of injury. Nothing will suffice short of an agreement to waive any claim for negligence. The plaintiff must agree, expressly or impliedly, to waive any claim for any injury that may befall him due to the lack of reasonable care"

by the defendant.

Mr. Dobson: What we are proposing would not excuse people in respect of a lack of reasonable care. The
 
16 Jul 2004 : Column 1686
 
provisions specify that those involved in the activities should take reasonable care and exercise reasonable skill.

Mr. Dismore: Of course, but not in the context that I am talking about. What we are talking about is knowledge of the danger. The real issue is not the reasonable care aspect. There is a series of hurdles to be overcome in legal claims, whether one is defending or promoting. What I am arguing about is the words "knowingly accepted". Lord Denning stated that acceptance must be very clear. I shall come to the point about knowing in a moment.

Nothing in the new clause says how acceptance by the individual must be demonstrated. If there is no specification, one has to fall back on existing case law. The implication is that we will end up with a paper chase of written acceptances every time an event is organised, and a complete deterrence of the sort that the Bill is trying to avoid.

Lawrie Quinn: I am listening closely to my hon. Friend. Unlike him, I am not a lawyer; I tend to be a practical, down-to-earth person. Is it his interpretation that in planning a weekend scout camp, a scout master would have to lay out a detailed assessment before parents or guardians saying which activities would be dangerous or carried a risk? That could mean the scout master having to carry out risk assessments in respect of the whole weekend—the journey to the camp, songs around the campfire, pot-holing activity or whatever else. Does that not support my hon. Friend's statement that there would be a paper chase?

Mr. Dismore: My hon. Friend is absolutely right. The original Bill—we see amendments before us that seek to take it to pieces—talked about statements of inherent risk. The hon. Member for Canterbury proposes that the House should remove such statements from the Bill, presumably to get rid of the paper chase that has previously been criticised. He is creating a paper chase with knobs on by the back door—at least a statement of inherent risk has a checklist of things that should be in it.

No one will know what the system means before a few cases come to court. Lawyers would draft documents for people to sign, and volunteers would be even more confused than they are now, because of the need for a clear acceptance of risk. The hon. Member for Canterbury has shot himself in the foot by proposing to take out the statement of inherent risk.

Lawrie Quinn: He should have done a risk assessment of his Bill.

Mr. Dismore: The hon. Member for Canterbury has created another problem because the current legal definition of volenti will inevitably be transported into paragraph (3). He could have introduced a clause stating, "acceptance can be signified orally", although I suspect that most organisations would still want the belt and braces approach if they were to rely on that particular defence.

We have dealt with the issue of "acceptance", so we come to the question of "knowing". "Clerk & Lindsell on Torts" says that if it is alleged that the claimant was
 
16 Jul 2004 : Column 1687
 
responsible for his own injuries, it must be shown that he was fully aware of the relevant danger and consequent risk. I will not read out the whole passage, because that would be out of order, but paragraph 383 states:

"Knowledge must be full and complete. The defendant must demonstrate that the claimant had full knowledge of the nature and extent of the risk which he is alleged to have assumed."

It is not enough to show that danger was apparent or that in a general sense the claimant was aware of the risk.

There is the argument whether that knowledge is objective or subjective, which brings us to people with disabilities. For example, people with learning disabilities may or may not be able to assume knowing acceptance of risk. Without a definition of "knowing", we are thrown back on to the law, which requires an extremely full explanation of the risks.

One problem identified by my group of amendments is that clauses 2 and 3 refer to risk in only a roundabout way. The problem is that there is no requirement to explain all risks. Returning to the canoeing accident, if one goes on a canoeing expedition, there is a risk that one may drown, which is what happened in that case. Are we saying that the people involved in that case should be excluded because they knowingly accepted the risk of drowning?

There are real problems of causation in law. Does the Bill refer to all the risks involved or just some of the risks? If some of the risks must be explained, why does the Bill not say so? If only some of the risks must be explained, a threshold should be included to cover the most important risks or the risks that can be readily identified. Again, I return to my point that the provision is a lawyer's field day, because we will have those arguments in court time and time again.

Lawrie Quinn: I am grateful to my hon. Friend for being so generous. In the case that he mentioned, four children drowned and there was a problem with a lack of early understanding of a weather forecast about flash floods. To what extent does new clause 6, which refers to expert evidence, help the hon. Member for Canterbury (Mr. Brazier)? A scout master cannot be expected to be a meteorologist or, for example, to understand the consequences of topography and geology in a limestone landscape.

Mr. Dismore: My hon. Friend has foresight, because I was about to come on to that in the context of new clause 29. At this point, we get into the argument about what is actually meant by

"taking reasonable care or exercising reasonable skill."

Does the new clause try to reinterpret existing law or to create new law? The existing law is very clear: it says that a certain type of professional is expected to exercise the level of skill that would go with being such a professional. As a lawyer, I am expected to know the limitation period for a personal injury claim, as is a trade union official. However, the average man in the street is not expected to know that. If someone hobbles into the pub on sticks after a football accident, sits down at the bar and says, "I've had this accident.", and his mate says, "Don't worry about that—you can sue for years
 
16 Jul 2004 : Column 1688
 
afterwards.", there would be no problem. However, if I said the same thing and offered to take the case, I could be sued because I had not exercised the reasonable skill of my profession.

Similarly, outward bound instructors would be expected to exercise the reasonable skill that goes with that profession. Would the new clause exempt them from exercising that level of skill and apply the test of the apocryphal man on the Clapham omnibus by saying yes or no, because that is the general test of reasonableness in personal injury law? Would volunteers who assume responsibility—for example, lifeboat men or cave rescuers—be exempted from having to exercise their professional skills and have only to exercise the skills of a bumbling idiot to avoid liability under clause 1?

---