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Lord Goodhart: I must correct my noble friend. Lord Denning did get to the House of Lords and he then went down a step to become Master of the Rolls at the Court of Appeal.

Lord Phillips of Sudbury: I am most grateful to my noble friend. I think that they got shot of him quickly and put him down a peg. Before we lawyers get carried away on all this stuff—

Baroness Ashton of Upholland: Meanwhile, back to the Bill—

Lord Phillips of Sudbury: The noble Baroness is getting impatient. Meanwhile, back to the Bill, she
 
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must in future amend her assertions that this is only a clarificatory measure. It means—the noble Earl has planted this in my mind—that the House of Lords could not go back to the issues covered by Clause 1. Clause 1 is declaratory of the common law as it stands. The House of Lords can change from decade to decade but in future it will not be able to go backwards, so to speak, in terms of the matters covered by Clause 1. That will no longer be within its gift, so the provision is not purely clarificatory—it is fixative.

3.15 pm

Baroness Ashton of Upholland: I am always grateful for the interventions of the noble Lord, Lord Phillips of Sudbury. I understand what he is saying although, as I said, we had many discussions on this in the previous sitting. But as a non-lawyer, I believe that what we have sought in Clause 1 is to say that the courts may look at something that the courts already look at—which is why, for some colleagues, the clause does not go far enough. I do not feel in my heart of hearts that I have somehow bound the House of Lords in a way inappropriate to the way in which the common law operates now or will operate in future. I am willing to be told by legal colleagues that that is not true but, frankly, it does not feel like that.

I should like to get back to the Bill and deal with the issue of 100 per cent contributory negligence. Members of the Committee will know better than I the terms of the Law Reform (Contributory Negligence) Act 1945, which allows the courts to take into account the claimant's behaviour and how much that behaviour has affected and contributed to what has happened to the individual. Courts can reduce the amount of damages awarded to whatever extent the courts think right. Members of the Committee will know from their vast experience—and certainly I found—many examples of 20 per cent, 30 per cent, 40 per cent, 50 per cent and 75 per cent, 80 per cent and 90 per cent contributory negligence in looking at different cases in which the courts were very clear that although the actions that were taken were negligent, the way in which the individual had behaved had contributed to a greater or lesser degree.

The case that I was particularly struck by was Jayes v IMI (Kynoch) Ltd, which will be familiar to some noble Lords. The judgment said:

As a non-lawyer, I read that to mean that the courts could effectively say that when you look at a judgment there is such a fine line that it would be appropriate, in the sense of 100 per cent. But I am very clear that it would be for the courts to determine in considering individual circumstances and taking into account, as they can, what was done in the 1945 Act. To add this would cause confusion because we already have the 1945 Act and we already have many cases in which the courts have very properly said that the circumstances
 
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warrant that contributory negligence was a major or minor factor, and that it was taken into account when awarding damages.

We should not accept the amendment for the reasons I have given. But I hope that the noble Lord will feel that the issue has been aired, as I know that lay behind the tabling of the amendment, and that he will feel able to withdraw it.

Lord Lucas: Can the Minister help me with the evidence that underlies the contention that we need to give guidance to the courts as to what their powers are? She said that there was a very wide spread of contributory negligence percentages. The evidence that we have in the briefing from the leisure parks operators is that by and large it is 20 per cent and that the courts very rarely stray beyond 50 per cent. Is any data available on the pattern of contributory negligence awards that might give us some guidance as to whether the courts are erring generally too far in removing responsibility from the individual?

Baroness Ashton of Upholland: I did not think that I would find a pattern but, unfortunately, I was not given the briefing that the noble Lord has. I would be very happy to look at it; indeed, I have arranged to meet the organisation involved in the near future to discuss these issues, because I know that they are of concern to this particular part of the industry—if that is an appropriate term to use.

I have found that clearly the courts, in looking at the circumstances, were mindful of the way in which the individual had behaved and made the decision to determine the percentage of contributory negligence appropriately. Of course, one could argue that that could be challenged, but I find a whole range of different cases at different levels. I was not looking for a pattern or to see whether one had a particular set of cases in a particular set of circumstances. I should be very happy to do that, and to look at evidence that suggests that. But the law is very clear that the 1945 Act allows the courts to consider contributory negligence and the courts seem to take that into account in an appropriate and proper manner. There is enough evidence to satisfy me that we need to leave the law as it stands and enable the courts to continue in that vein.

Lord Hunt of Wirral: This has been a very helpful debate, but I must rise to the defence of the noble Lord, Lord Goodhart. The Minister cited the case of Jayes v IMI, when the Court of Appeal in 1985 supported the argument that a worker could be found 100 per cent contributory negligent. As the Minister knows, I am very well served by a range of talent, and one of the brightest and best solicitors I know—Paula Jefferson—has just passed me a note to say that would I point out to the Minister, with the greatest respect, that Jayes has been overruled. The case of Anderson v Newham College of Further Education in 2002 reviewed all the cases and found that whether the claim is in negligence or breach of statutory duty, under the existing law there cannot be 100 per cent contributory negligence. In Boyle v Kodak, the House of Lords held
 
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that to escape a statutory duty, a defendant had to establish that the claimant was wholly to blame and that there could be no question of contributory negligence. The Court of Appeal, in the case that I previously cited, went on to say that the judgment in Jayes did not consider Boyle and should not therefore be followed by judges at first instance. I hope that that assists the Minister, who may wish to respond.

Baroness Ashton of Upholland: I am delighted that the noble Lord has the brightest and best legal minds behind him, though I believed that it was not allowed to name people in Committee in that way—otherwise I should have named mine long ago. What I understand is that Anderson does not completely overrule Jayes, and that Jayes was about the courts not straining to find the odd 1 per cent or so. Because I am not a lawyer, I crave the indulgence of the Committee. We cannot get into the position where top legal brains are, in a sense, feeding directly into the Committee to a Minister who is not a lawyer. I am happy to discuss these issues outside—but it is, for me, quite inappropriate for me to try to respond in that way.

I am happy to be caught out at any time by the finest legal brains, but I would rather that we stuck to the principles behind the Bill and sought to deal with the particular issues. It is my contention, regardless of case law, that the 1945 Act gives the courts the appropriate degree of flexibility to deal with contributory negligence. That would be my contention as to why the amendment should fall.

Lord Hunt of Wirral: That is why I need to counter the argument that Jayes is valid law. I believe that I have introduced an interesting concession—that it was not completely overruled, but it was overruled on the question whether a worker could be 100 per cent contributory negligent. Of course, I shall reflect on the Minister's remarks, but I hope that she understands that this is not just a simple legal point. What she said in her answer to the amendment is not necessary because, under existing legislation, you can find an individual 100 per cent negligent.


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