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Mr. Joyce: I am sure that what my hon. Friend says makes sense to him, as a lawyer, but it does not make much sense to me, although I think that I understand what the words "reasonable" and "no" mean.

What does my hon. Friend think is reasonable behaviour for someone who is not particularly well qualified? I recently saw an example in the papers. A teacher who was utterly unqualified took a school party out in the hills, with the children wearing normal shoes suitable for walking in the high street. Clearly, that was preposterous. One might say that she did not have training and therefore could not know what was reasonable behaviour for an expert. However, as an intelligent human being, she should have realised that she was behaving unreasonably and getting way out of her depth in a situation that she could not handle. From that point of view—

Madam Deputy Speaker: Order. This is a little long for an intervention.

Mr. Dismore: I am not sure that I got my hon. Friend's drift. I understand his point, but he is not necessarily using the best example. Perhaps I could extrapolate to make it a little clearer. Let us suppose that an experienced leader takes out such a party, although his experience of analysing weather forecasts suggests that there will be bad weather. Under existing law, he would be expected not to do that because he would reasonably exercise his experience, knowledge, skill, training, and professional qualifications. If, in spite of his professional skill, experience and knowledge, he took out a party and the worst happened, he would be sued under existing law. If the average man in the street looked up at the sky and said, "Oh it doesn't look too bad. We'll go out with all the right kit", and got caught, he could also be sued under existing law. Do we want to apply the same test to the skilled and the less skilled person? Will we expect the skilled person to fulfil only the lesser standard of the unskilled person?

12.15 pm

Let us put the matter in another context. A person who needed a complex heart operation and went into hospital would expect a competent heart surgeon to carry it out. Are we saying that, if the GP down the road conducted it, the heart surgeon would have to meet only the standard of the GP or a lesser standard? That is the
 
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problem with the provision's current phrasing. It does not say, "recognising reasonable skill in any way qualified." It does not provide that any professional experience or qualifications should be exercised. That is one of my concerns about reasonableness and the reason for my contention that we would end up with a new chapter in "Clerk & Lindsell" to interpret the new clause.

Mr. Dobson: Why would a new chapter be necessary? The concepts of reasonable care and exercising reasonable skill already exist in law.

Mr. Dismore: Because we are considering a new measure, which attempts to modify the common law. New legislation must inevitably be interpreted. The courts might well interpret it in accordance with existing law, but I can envisage defence solicitors and barristers attempting to raise a defence, based on clause 1, that the defendant should not be liable because the provision imposes a lesser duty than existing law. If clause 1 said, "And this restates the existing law on reasonableness", that would be fine, but it does not. If clause 1 required those who profess expert skills to exercise them, that would also be fine but again it does not. I am worried that, because it does not make any such provision, we would end up with a lawyers' field day.

Mr. Dobson: Which statute expresses the words that my hon. Friend used?

Mr. Dismore: It is common law. The law on negligence has been developed overwhelmingly through common law. It has been occasionally modified by statute, for example, through occupiers' liability legislation, but statute always takes priority over common law, which interprets statute, and we are considering statute. I am worried about whether we are restating existing law; the Bill does not say that. We may be introducing new law but, again, the Bill does not state that. The measure is open to interpretation and that means a lawyers' field day and a new chapter in "Clerk & Lindsell".

I am worried that such consequences will ensue because the Bill is not well drafted. I believe that my right hon. Friend the Member for Holborn and St.   Pancras said from a sedentary position earlier that a judge may have drafted the Bill. Perhaps the judge is trying to drum up a bit of extra business in interpreting some of the more difficult aspects.

Lawrie Quinn: I am listening carefully to my hon. Friend's comments about reasonableness. I am sorry to revert to an earlier point, but I asked him about the measure's impact in the context of the Health and Safety at Work etc. Act 1974. He knows that legislation well; it is based on what is practicable. I think that my right hon. Friend the Member for Holborn and St. Pancras might have had it in mind. How does new clause 29 undercut the central and important principle of the 1974 legislation?

Mr. Dismore: That is an interesting question. My hon. Friend knows that there is argument, especially over the word "reasonable", which is incorporated in sections 1 to 6, about whether the 1974 Act complies with our legal
 
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duties to Europe. Subsequent pieces of legislation could well apply in these circumstances through Europe—through the six pack directives, and so forth—which argue that reasonableness should not be included in the provisions because it is open to such wide interpretation.

The Health and Safety at Work, etc. Act 1974 does not create or deal with civil liability, so in that respect it does not specifically impinge on the new clause. However, a lot of the subordinate legislation does create civil liability. We could have a hybrid position in which people at work would be covered by the health and safety legislation—nothing in the new clause deals with a breach of statutory duty, so far as I can see—while other people who had been injured in the same circumstances would not be covered. One person might have a claim—effectively an employer's liability claim—while another might not. A professional guide doing an outward bound course on the moors, for example, might have a volunteer with them. If both were injured through the fault of another, one could end up being able to sue, but not the other. That raises significant questions under the Human Rights Act 1998. If there is a distinction made between two people in the same circumstances, that would constitute a clear breach of that Act in terms of the right to a fair trial.

Mr. Dobson: My understanding is that my hon. Friend is arguing that our proposed new subsection (1) would introduce new complications into the law. He said that the common law distinguishes between the duties of care of an expert and of the man or woman on the Clapham omnibus. He has also confirmed that, in interpreting subsection (1), the common law distinctions would apply. If that is the case, we are not changing the law at all. We have never claimed that we were changing the law, particularly in relation to subsection (1).

Mr. Dismore: I am afraid that my right hon. Friend is not right. We are going back to an old argument here, but I shall go through it again for his benefit. The common law sets out the law of reasonableness; it does so here in relation to provisions for experts. There is no argument about that. We then superimpose on that a new statute, which has to be interpreted by reference to the common law. I am not saying that this provision does or does not change the law. All I am saying is that there will be arguments about whether it does so by defence insurers trying to avoid liability for claims brought by people who have been injured.

Mr. Dobson: But that is the case now. What I am saying is that, if the courts' interpretation of the common law concept of reasonableness or of exercising reasonable skill presently distinguishes between a greater obligation on the expert than on the ignorant lay person, it will continue to do so.

Mr. Dismore: My right hon. Friend misses the point. My concern is that because the new clause does not set that out, we could end up imposing a lesser standard on the expert than the law does at present. People who are presently held liable for negligence might then be able to escape a finding of negligence because there would be a lesser test imposed on that individual as a result of the new clause.

Mr. Dobson: From where would the judges import that lesser obligation? As I understand it, they could
 
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import it only through the application of the existing common law or, failing that, through an interpretation of the intention of Parliament. Nobody here intends to reduce the obligations on the expert.

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