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Lord Greenway: My name, as well as that of the noble Lord, Lord Lucas, is attached to Amendment No. 24. First, I apologise to the Minister and to the Committee for the fact that I was unavoidably elsewhere last Thursday. I thank my noble friend Lord Errol for speaking to some of the amendments tabled in my name. In relation to one of them, Amendment No. 5, the Minister gave me some Christmas comfort, for which I am most grateful.

On the first day in Committee, the noble Lord, Lord Lucas, referred to a letter he received from the Minister following Second Reading and said that he was not minded to move Amendment No. 24. I had not seen that letter but I am happy to say that, since proceedings started this afternoon, I have got hold of a copy and I take note of what the Minister said. She refers to Tomlinson and says that it is important that a proper balance is struck between an individual's rights and responsibilities and that, to reflect that, the law already enables the courts to take into account the claimant's behaviour and the extent to which his or her own negligence may have contributed to any injuries suffered.

Although I do not practice it any more, my sport was ocean racing. Theoretically, the yachts on which I sailed were dry, in that we did not carry alcohol on board. However, one or two crew members used to smuggle the odd bottle of sherry aboard and we used to mix it with Bovril to create a delightful drink called shovril which, in these hallowed surroundings probably sounds perfectly horrible, but it went down
 
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a treat on a cold, wet night in the middle of the English Channel. Young men who sail live hard and play hard. There is always a risk of abuse of alcohol or drugs. Things move on and habits change, although I think it would be impossible to snort cocaine on the weather rail of a yacht in the middle of the English Channel.

I have some sympathy with what the noble Lord, Lord Hunt, is on about here. However, I hope that the Minister will confirm that our fears are unnecessary, certainly in view of the letter that I read earlier.

Baroness Ashton of Upholland: It is a delight to see the noble Lord, Lord Greenway, joining us. The noble Earl moved his amendments with great aplomb and extracted from the Government what we were able to do. I look forward to discussing some of those issues in greater detail with the noble Lord, Lord Greenway.

I want to deal with the question about general guidance that the noble Lord, Lord Lucas, asked me directly. The noble Lord will probably know that judges get guidance on civil law, including the law of negligence, from the Judicial Studies Board. I am not aware of specific guidance on contributory negligence, but I will find out and let the noble Lord and the Committee know. It is not something that I know at this point.

I want to make sure that the noble Lord, Lord Hunt, does not think that I have studied the New South Wales documentation, because I have not looked at it to the degree that the word "study" means to me.

Lord Hunt of Wirral: There is Christmas!

Baroness Ashton of Upholland: I am grateful for the noble Lord's suggestion, but I have several things to do over Christmas concerning this Bill and others. I shall add it to the list. I was rather hoping that the noble Lord would suggest a study tour to New South Wales might be a more appropriate way for me to spend my time. Perhaps the noble Lord could join me and we could make it a parliamentary occasion.

My officials were canny enough to have worked out that the noble Lord would be looking at what David Ipp did in New South Wales. On this element, I shall quote out of context from paragraph 8.18 of his report because it is important from my standpoint:

I took that to mean that one of the great difficulties with looking at issues of drink and drugs, in particular, is determining in statute precisely how we would want the courts to interpret that.

Looking at the cases that I have examined, it is clear that even though the noble Lord has pointed to a case where that might have been wrong and was then corrected, one of the joys of our judicial system is that it almost invariably finds its way to the right solution. Anything that we do to try to define these issues may have unforeseen consequences for those who are seeking to make claims. For example, the obvious
 
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questions would be about the definition of intoxication and the way in which some medications have alcohol in them. Would one be persuading people to try to find out, before they even begin the claim, whether an individual might have taken alcohol at any point? We all know that if one has a glass of wine and is then involved in an incident it might have no bearing at all for some people while for others it might have some bearing. It is difficult to define this in a way that would give the right level of comfort to those involved that we would not create a difficulty that the courts currently do not have.

As I understand it, the courts are not interested in how drunk a person might have been but in the carelessness that went alongside that and the way in which his behaviour was altered. One cannot use being drunk as an excuse for not taking care; that does not work at all. The issue is whose fault the injury was and the level of carelessness in what the individual did.

I fear that the amendment as it stands would require the courts to consider that in every case anyone who was under the influence of alcohol—and we could try to define that—or another drug was, de facto, careless and that that was the cause of his injury, unless he could prove otherwise. That is a considerable shift in the law and I am not sure that I would think it anything other than too wide. I accept the premise that underlies what the noble Lords are seeking to do, which is to recognise that people who get drunk, do something stupid and are careless, need to take the consequences. It does not always mean that the fault lies entirely with them. The example I have been using all week, which I shall probably regret telling the Committee because I shall receive a competing example, is of a scout troop that decides to pitch its tents in the dark on the side of a cliff. One of the lads gets drunk and walks over the side of the cliff, which he might have noticed had he not been drunk. None the less, the troop should not have pitched the tents on the side of the cliff.

The issue is allowing the courts to weigh up all the evidence and to come to a conclusion that puts the carelessness of an individual in the right context. I think that the 1945 Act gives the right framework and moved the law on considerably, and I would not be in conflict with it. On that basis, I hope that the noble Lord will feel able to withdraw his amendment.

3.45 pm

Lord Lucas: Going back to an earlier amendment, what the Minister said reminds me of a real example. A farmer's field of wheat caught fire and a dense cloud of smoke drifted over the neighbouring road. The first car to come across the smoke crawled through it and, having got through the smoke, stopped in the road to admire the scene. The next car went through the smoke at 60 miles per hour. The second car was clearly 100 per cent negligent, but the first car was not entirely sensible either. There can be circumstances where the claimant is 100 per cent negligent even though the other party is negligent too. One ought to recognise that there are circumstances when balancing is not what should be
 
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done. There should be an ability to say that someone is absolutely negligent and therefore the negligence of the other person should not be taken into account.

Lord Hunt of Wirral: I am very grateful to my noble friend for that example. We are trying to make it easier and simpler for people outside to understand their legal position. I was greatly assisted on this difficult area by an e-mail that I received a few moments ago from the Historic Houses Association. As well as making me aware of its support for this amendment, it clarified that when a claim is made there is serious concern about whether there is liability. The Historic Houses Association has 1,500 houses in its UK membership, of which about 500 are open to the public. That is more houses than the combined total of the houses owned by English Heritage, the National Trust and its equivalents in the UK, so it is speaking with some authority. It testifies that its members are facing an increasing burden of aggressive litigation and, although some of its members stand firm and refuse to pay claims, it says that,

So far as these amendments, particularly Amendments Nos. 17, 18, 24 and 25, are concerned, people outside are talking about the need for clarity. The purpose of this amendment was to send a signal that drink and drugs are not acceptable if one is going to be in a position where one might well suffer injury.


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