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Lord Hunt of Wirral: We are of one mind in that no side of the Committee wishes to create additional hurdles which may prevent an individual having access to justice or, as just described by the noble Earl, being able to defend himself or his organisation. However, I think that the noble Earl understands that although this may look simple, in the hands of lawyersnot necessarily clever lawyers, but lawyers who always seek certaintyit creates an additional problem and therefore an additional need to take legal advice. That, I think, is what the noble Earl was really saying: "Please do not make it more difficult for people to organise their activities".
Perhaps I may correct the noble Earl on one point. I would like to see a good Clause 1. We have made that clear throughout our deliberations. We all want to see a good clause, although I agree that the noble Lord, Lord Goodhart, has expressed his reservations about it, and various groups such as the Association of Personal Injury Lawyers have said that the Bill would be better off without it. That is the view not only of lawyers, but also of the All-Party Parliamentary Group on Insurance and Financial Services. However, other all-party groups have said that it is important. That is why it is vital to get this right.
In determining the extent to which the claimant's damages shall be reduced by reason of his contributory negligence, a court may determine a reduction of 100 per cent if the court considers it just and equitable to do so, with the result that the claim for damages fails."
The noble Lord said: We deal here with contributory negligence, which is an important matter. It gives us a moment to reflect on where else something has been done recently; namely, in New South Wales. I refer to the New South Wales model. It arose in circumstances very similar to those in which the Prime Minister and the Lord Chancellor decided to introduce a Bill very like the Compensation Bill before us. It is helpful to remind ourselves that what happened in Australia is similar to what has happened here.
It was perceived that the courts' application of negligence law was unclear and unpredictable. A government-appointed panel was established to review the law of negligence. That was set against the background of a public perception that it had become too easy for claimants in personal injury cases to establish liability and that the damages awarded were frequently high. The panel in New South Wales then
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reported that there should be a legislative restatement of the law. The Minister will recognise immediately that that is what she is trying to do in this Bill.
At this time of year it is interesting to look over the press reports made at the time of the tort reform in Australia. The media criticised the government, in their attempt to whip up support for the legislative changes, for referring to "Santa Claus judges". Judges were accused of being out of step with society's demand for personal responsibility. So it is absolutely on all fours with what we are talking about here.
If we are seeking to make people responsible for their actions, we are seeking to do what New South Wales has already enacted. The significant legislative reforms began there in 2002, and all states and territories have now followed the New South Wales lead and have introduced legislation that implements many of the recommendations, including comprehensive changes to the law of negligence and thresholds and caps on damages for personal injury. This amendment is based on the fundamental aspect of the model, indicating that a finding of contributory negligence can be up to 100 per cent. I confess that that would represent a change in the existing law and, arguably, may be very difficult. If the claimant is deemed to be 100 per cent to blame, we are presumable arguing that the defendant is not to blame at all, or are we?
My contention is that we are debating the failure of people to take responsibility for their own actions. That is why it is such a fascinating area of debate. There are no such provisions in the Bill at present: this amendment would introduce them. I am thinking of the example of Tomlinson itself where Mr Tomlinson was adjudicated to be to blame. Without going into too much detail, that was the result of that case. But what would have happened if the Appellate Committee had found that the council was to blame, but that Mr Tomlinson was 100 per cent to blame for his contributory negligence, to the extent of extinguishing any liability on the part of the council? I have read a number of decided cases, and a noble Lord referred to other decided cases as having flown in the face of Tomlinson, which was a decision that was not representative of all the other decisions. Therefore, Tomlinson could well have decided that the council was to blameperhaps it could have taken precautions which it did not takebut that Mr Tomlinson was 90 per cent or more to blame for his actions.
So here we are dealing with the question of the extent to which someone should take responsibility for his own actions. For example, when passengers fail to wear seat belts, injuries are 100 per cent due to the fact that they were thrown out of the car. Had they been wearing a seat belt, they would have suffered no injury at all. There have been a number of cases on that point. Similarly, a cyclist or a motorcyclist could well be thrown from their bike and suffer a head injury but no other injuries at all. That head injury would have been prevented had he been wearing a helmet. We also have mobile telephones. I do not know whether other noble
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Lords have had this experience, but several timesonce outside the Royal Courts of Justice just last weekI have been crossing the road on a proper crossing and have been narrowly missed by a car overtaking a bus on the incorrect side. I was almost mown down, but some sixth sense stopped me progressing, and I noticed that the driver was talking into a mobile telephone. But is the motorist to be blamed if a pedestrian steps off a kerb with an iPod or a mobile telephone? Unlike the present situation, can the claimant be found to be 100 per cent to blame? The New South Wales Civil Liability Act 2002 sets out that the risk must be foreseeable and not insignificant.
There is the ability to limit liability and various other provisions. I will not go into detail, but I suggest that the Minister might like to have a look at the Act. It gives various examples of where if someone is to accept responsibility for his actions that must affect his ability to claim. The sort of guidance we have been talking about in the Committee would assist voluntary organisations in knowing exactly where they stand, if only the law were clearer. I beg to move.
The Earl of Erroll: I can see this may have some value and it may be worth talking about. For instance, a typical example of pre Tomlinson where the court seemed to do something very strange would be Craddock v Juan (1) Dr J A Farrer and (2) The Scout Association. The date of the accident was 25 July 1995. The scout troop had organised a visit to a popular show cave at Gaping Ghyll. Some parents had gone along as well. One of the scouts asked permission to look at a cave across a stream. The scout leader refused permission. So the scout went off and asked his father. The father said, "Why not?" and went off with the son. He gave him a cigarette lighter. They went into the cave. The scout slipped, fell down a chimney and was killed.
The other son continued as a member of the same scout group for another two years. Only after the son had left the scout group did the father sue the Scout Association. The judge found in favour of the claimant, saying that as he was born in a city he could not have been expected to recognise the dangers and that the scout leader should have prevented the father entering the cave with his son. In failing to do so he breached his duty of care. But how on earth will you do that? Are you meant to watch the father and son very carefully while also keeping an eye on the rest of the group? Are you supposed to rush across the stream and physically restrain him? That is a typical example of a very strange judgment. I cannot see why it happened. It may be that it should have been appealed, but where will the money come from? That is a typical case where you could say that there was a duty of care, but then say that because the father was so idiotic and there was no way that the chap could have restrained him, therefore it was 100 per cent contributory negligence. I merely offer it as a possible example to help the noble Lord, Lord Hunt.
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