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Lord Goodhart: I will break briefly my vow of silence to say that I am afraid that 100 per cent contributory
 
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negligence is a logical impossibility. You may of course be entirely responsible for your own injury, as was the case with young Mr Tomlinson in Tomlinson v Congleton Borough Council because in that case the court found that the Congleton Borough Council had done everything that it should have done in the circumstances. The whole idea of contributory negligence is it is contributory because both parties have contributed to it. The suggestion that, for example, somebody who is thrown out of a car because he is not wearing a seatbelt could be held under any fair system to be held entirely responsible for his own injury when the crash was caused by another driver driving extremely carelessly really does not make sense. We are going back by this to the doctrine of, I think it is called, the last causative act, which was abolished in the 1930s.

Lord Hunt of Wirral: The noble Lord, Lord Goodhart, for whom I have enormous respect, is sadly on this occasion, with the greatest respect, wrong. I have had experience of cases where a court was moving to declare a claimant 100 per cent contributory negligent, but was unable to do so because of the existing law. Therefore, it found the particular individual to be 99 per cent. A series of judicial decisions have been made where it was necessary to prove just 1 per cent. In order to invoke the full compulsory insurance for passengers in motorbike accidents all you had to do was say that although the rider of the cycle was 99 per cent to blame, it was 1 per cent on the part of the oncoming motorist and therefore the claimant succeeded in full.

But it is not only that 99 per cent to 1 per cent line of cases; it is also perfectly possible, in my experience, for a court to decide that two parties were negligent but that the 100 per cent negligence of one of the parties, namely the claimant, was the effective cause of what had occurred. Therefore, perhaps at least he would accept my point on causation, where you can have negligence established on the part of both the individual parties, but the causation arguments result in just one of the parties being held to blame.

What I am really saying is that under the existing law it is not possible to find a claimant 100 per cent to blame. My argument for saying that it would be wise to allow this is that rather than allowing a case to go all the way to court to establish whether the blame was 99 per cent or 100 per cent, it would be better to have it made clear right at the outset.

Lord Goodhart: Causation is of course a different matter. If someone was driving or doing something negligently, but that had no connection whatever with the accident, of course that is an entirely different matter; but where that is part of the causation there cannot be 100 per cent contributory negligence from the other party. Certainly if that were decided it would be a very strange decision.

Baroness Ashton of Upholland: I am grateful for the helpful way in which we have been able to debate this important issue. I am aware of the Ipp committee in New South Wales—David Ipp is the chairman—and
 
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of recommendation 31 and a whole range of different work by the committee looking again at the whole question of the law of negligence. I have the terms of reference available to me, and we will watch with interest what happens in Australia. I am aware of it, but at the moment I am completely unconvinced that I wish to go down that route. I will explain more about that in a moment.

I want to say something else, which is slightly tangential but was raised for me by what the noble Earl said when he talked about the Gaping Ghyll case, which is the case of Craddock v Farrer and the Scout Association. One of the great points of interest and, dare I say, difficulty when you are the Minister in this area is that lots of different cases are brought to your attention in a range of ways. As the noble Earl will know, county court cases are not normally reported in legal journals so it is often difficult to get to the bottom of them, but I have been able to read articles relating to that case. The judge said that the Scouts had gone to Gaping Ghyll with no proper equipment, supervision had been inadequate and the scout leader had shown woeful ignorance. Those are strong terms to be used by the courts. The difficulty in the appeal, as noble Lords will know, is that the person who was found negligent had died by the time the case came to trial, and that may be one of the factors in the case.

I raise that not to go into details of the case, because I cannot, but because it is difficult when one looks at the judgments in particular cases at face value to see underneath all the different factors. Thus far, in every single case we have looked at—and we have tried to look at every case that has been brought to our attention—where people have felt very strongly that something has been done wrongly, we found other factors which, on the face of it, would appear to have had a bearing on the case. I say that as a Minister and not a lawyer.

It does not take away from the fact that people feel very strongly that these cases happen and as a consequence they are not doing the activities they should do. I would not want any noble Lord to feel that we do not take this very seriously, looking at all the different examples, to see if we can find cases where perhaps the courts have not picked up factors that noble Lords have been concerned about. I wanted to say that because it comes up quite often in my conversations, particularly in another place as well. I agree with the noble Lord, Lord Goodhart—I do not speak as a lawyer—that if there was 100 per cent contributory negligence, it does not follow that the other person can be liable. The courts must always look at the circumstances of the individual case.

Let us take a couple of the examples used by the noble Lord, Lord Hunt. If someone does not fasten his seatbelt and is badly injured, that may be a factor in the compensation awarded by the court, but I disagree that the fact that someone smashed into them with their car should not be taken into account. Equally, if a person not wearing a helmet comes off a bicycle or motorcycle and suffers a head injury, who is to say that even with a helmet they might not have received the injury? Again, the courts will take that factor into
 
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account, but it cannot be dismissed. In my experience chairing a health authority, it does not always follow that because you wear a helmet you will not suffer a head injury—

Lord Phillips of Sudbury: Perhaps I may interject one comment to clear the air a little. The noble Earl, Lord Erroll, continues with his vivid case on which the Minister has made some wise observations. In British common law it is crucial that where the House of Lords reaches a decision, that becomes a precedent which all inferior courts must follow. Although there is a plethora of cases, the case of Tomlinson will in future clarify and develop the concept of negligence in the circumstances of interest to the Bill. I hope that it would have led to a different decision in the case mentioned by the noble Earl, although I have not read the facts and who can say?

The Earl of Erroll: On that note, because the courts' judgments were drifting in a direction which the Tomlinson decision has changed or arrested, presumably it means that since then the courts have been free to drift again in a different direction if they so desire. Equally, another Appeal Court decision could reverse the Tomlinson decision. That could happen immediately if someone takes a case all the way to the House of Lords. There would be a different set of Law Lords—I know how much they differ, having listened to them in the Chamber—and who you get on the day determines the decision you will get. I remember that Lord Denning was renowned for some of his decisions and I am certain that some of the current noble and learned Lords are of equally independent thinking.

I suspect that these decisions are not absolute and that it is for Parliament to send a strong message in a particular direction. That is what Part 1 is about. It is for Parliament to say that after much public debate it has decided that this is the way that society would like to see the law viewed. That should apply also to the House of Lords in dealing with another case similar to Tomlinson.

Lord Phillips of Sudbury: It would help if I said that running to the House of Lords is an expensive and rare business and that bold is he or she who runs to the House of Lords to seek the overturn of a recent decision. One is talking about the nub of the decision—the ratio of the decision. There is therefore some solace for the noble Earl in the Tomlinson decision.

Incidentally, Lord Denning never got to the House of Lords, which was not an accident, because he was altogether too adventurous for their Lordships.


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