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Baroness Ashton of Upholland: The noble Lord has to understand that my premise is that his amendment is not necessary because the courts have flexibility under the 1945 Act. I am happy to put aside my comments on that case. We will look at it. My advice is different from the noble Lord's advice. We could go round this for some considerable time. The principle I am trying to establish is that the courts have a degree of flexibility which may take them to 99.9 per cent rather than the 100 per cent I suggested, but which none the less means that they can take the measure into account. But by the nature of the term "contributory negligence" we are saying that the matter is a contribution to negligence; it is not a case of taking the full blame. My premise is that the amendment would take us into a different place.

Lord Lucas: The fact that this has not been settled by the courts shows merely the deficiencies in our
 
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education system. This principle was settled by Newton when he invented his differential calculus. The fact that the courts have not caught up with that is their fault and not ours.

Lord Hunt of Wirral: But where they have not caught up it is our duty to put the situation right. The Minister has more or less conceded that if Jayes v IMI is considered not to be good law, she will reflect on the situation. I accept her undertaking. Perhaps we might return to this at a later stage. We shall consider a key element of contributory negligence, that of being so overcome by the effects of drink or drugs that a person cannot really be responsible for their actions, and the effect that has on contributory negligence. I anticipate that we shall shortly discuss those issues and therefore I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Hunt of Wirral moved Amendment No. 18:


"PRESUMPTION OF CONTRIBUTORY NEGLIGENCE IN CASES OF INTOXICATION
(1) If at the time that injury or loss was sustained the claimant was intoxicated, there will be a presumption that the claimant contributed to the injury or loss unless the court is satisfied that the claimant's intoxication did not contribute in any way to the cause of the injury or loss.
(2) For the purpose of this section "intoxication"—
(a) includes being under the influence of alcohol or a drug, whether taken medicinally, legally or illegally;
(b) excludes intoxication which was not self-induced."

The noble Lord said: I believe it would be for the convenience of the Committee to discuss Amendment No. 24 with Amendment No. 18. The amendment deals with the presumption of contributory negligence in cases of intoxication.

The Minister referred to the New South Wales model. It is useful for the Committee to know that the Minister has studied that model because it is directly relevant to our discussions. Another possible import from New South Wales would be to set out a formal position to deal with claimants who are drunk or under the influence of drugs. I refer to the case of Radcliffe v McConnell Jones and the Governors of Harper Adams Agricultural College. That and a number of other cases demonstrate that we must have consistency in our judicial opinions. On 7 November 1997 His Honour Judge Brunning found the agricultural college 60 per cent liable for the claimant's tetraplegia, although it was a breach of statutory duty case. The 19 year-old student, Luke Radcliffe, had dived into the shallow end of the college swimming pool. The issue was whether the occupier of a swimming pool which was closed for the evening was liable for the injuries of a trespassing adult. The claimant had been drinking but was not completely drunk, but he dived deeper than he intended and was severely injured.

In that case the Court of Appeal overruled His Honour Judge Brunning and said that he had made errors of fact which affected the judgment he had reached. The judge had made errors of law as well in
 
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that he did not define the risk from which the claimant was entitled to be protected. The risk was that in diving the claimant might hit his head on the bottom of the pool. That risk was common to all swimming pools and was obvious to all adults. In many ways that case is useful in demonstrating that although we may look at existing decisions, quite often they differ, as the noble Earl said. You are never certain what will be the finding of the court.

Imagine the trauma for the agricultural college—his Honour Judge Brunning found that the claimant had succeeded. Indeed, in the Court of Appeal, one of the judges said:

That was a pretty sensible decision in 1998.

In 2003, his Honour Judge Bowers in the case of John Simon Donoghue v Folkestone Properties Ltd (2003), despite previous decisions, held that Folkestone Properties were liable to Mr Donoghue in the circumstances of the case. Mr Donoghue had decided to go for a swim in the harbour shortly after midnight on 27 December 1997. He dived into the sea from a slipway, struck his head on an underwater obstruction and broke his neck. His Honour Judge Bowers said that Folkestone Properties was liable. In reaching that decision the judge applied Tomlinson v Congleton Borough Council. He said that there was a known danger and that Folkestone Properties could reasonably have been expected to offer Mr Donoghue some protection against it.

It is probably important at this moment to explain to the Minister that although Tomlinson seems to be a very clear-cut decision, on a very key issue the decision was split. One of the judges found that Mr Tomlinson was a trespasser, whereas the other four judges decided that he was a visitor. It demonstrates, certainly in the Donoghue case, that as Folkestone Properties approached the case, it must have felt reasonably secure in the knowledge of Tomlinson and Ratcliff v Harper Adams Agricultural College. I hope I have been able to demonstrate to the Minister how important it is to get these clauses absolutely right. In that case, fortunately, the Court of Appeal decided that His Honour Judge Bowers was wrong, but the trauma and the cost of taking that case to the Court of Appeal reinforces a number of points that have been made by Members of the Committee.

The amendment makes it clear that a defendant does not owe a greater duty to a claimant who is intoxicated. In addition, it will be assumed that a claimant has contributed to his injury. I have no wish to enter the controversy about the new liberalised drinking laws, but there is no doubt that the Government are taking a step forward in allowing 24-hour drinking that may well result in increased cases. I have spoken to many Ministers. Some feel that it may or that it may not. Others are absolutely adamant that there will be no increase at all. But, given the new laws,
 
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it would be a substantial achievement if we could clarify the law to such a degree that it is no longer necessary for cases to go to the Court of Appeal.

I have imported a provision from the New South Wales model, which sets out exactly what happens in these circumstances. It is fascinating to remind oneself that the provision in New South Wales was introduced to address the expense of defending claims by young men who dived into shallow water when drunk.

I believe that the amendment that I have tabled makes the situation very clear. I shall quote Lord Justice Potter in the case of Jepson v the Ministry of Defence.

It seems reasonably clear, but we could benefit from the example of New South Wales by putting it beyond reasonable doubt. I evidence my argument with the two cases I quoted where the judge at first instance found for the claimant. I beg to move.

Lord Lucas: My noble friend puts everything better than I can, so I shall not repeat what he said. However, can the Minister say whether judges are given guidance on how they should decide on the level of contributory negligence? Is nothing published? I know that sentencing guidelines are published. Is nothing available to guide judges in reaching this sort of conclusion that we might look at to understand better how some of these judgments are reached?


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