HC Deb 30 April 1976 vol 910 cc707-30

11.9 a.m.

The Solicitor-General (Mr. Peter Archer)

I beg to move Amendment No. 1, in page 2, line 37, leave out 'is' and insert knows (or ought reasonably to know) herself to be'. I refer to two matters at the outset, Mr. Speaker, which do not strictly fall within the ambit of the amendment. First, I understand that this morning the House will not have the assistance of my hon. Friend the Member for Birmingham, Northfield (Mr. Carter), to whose initiative we owe the Bill. That is a matter of regret to all of us, but the reason is one which gives us a great deal of pleasure. I offer my congratulations to my hon. Friend on his well-deserved promotion.

Secondly, may I be permitted to say that I shall not be able to stay for the whole of the debate? I am indebted to my hon. Friend the Parliamentary Secretary to the Law Officers' Department—

Sir John Langford-Holt (Shrewsbury)

On a point of order, Mr. Deputy Speaker. Is the Solicitor-General speaking to Amendment No. 1 or to the first motion on the Order Paper?

The Solicitor-General

I am hoping that I am speaking to Amendment No. 1.

Mr. Deputy Speaker (Mr. Oscar Murton)

I think that the Solicitor-General is about to deploy his argument. It is Amendment No. 1 which is being taken.

The Solicitor-General

I am most grateful, Mr. Deputy Speaker. That was my understanding of what I was talking about. I concede that the remarks that I was addressing to you did not fall strictly within the ambit of the amendment.

I repeat that I offer my congratulations to my hon. Friend the Member for Northfield, to whom we are indebted for the Bill, on his promotion, although we regret that he will not be participating in our debates this morning. I also said that I shall not be able to stay for the whole of the debate. I am indebted to my hon. Friend the Parliamentary Secretary to the Law Officers' Department, who will be taking my place at the Dispatch Box. I hope that it goes without saying that my absence is not intended as a discourtesy to the House, nor as an indication of any diminution of my interest in the Bill. If it is in order for me to say so, I wish the Bill well.

I shall now try to bring my remarks within order. For those who participated in earlier stages there is no need for me to provide a long explanation of the amendment, which arises from a discussion that took place in Committee. However, there may be some hon. Members now in the Chamber who were not present in Committee who might welcome a brief explanation. The Bill provides that if a child is born disabled as a result of a wrongful act before birth, it will have a cause of action against the wrongdoer. That is not to apply where the wrongdoer is the mother. The Bill does not confer a cause of action against the mother. That was the recommendation of the Law Commission. It was fully debated at previous stages in our considerations and is not in issue on this amendment.

11.15 a.m.

But the Law Commission thought that there should be a exception to the rule where the wrongful act was committed by the mother when driving a motor vehicle while she was pregnant. That is the effect of Clause 2. Again, that exception was recommended by the Law Commission. The reasons have been very fully considered by the House and, as I understand it, the policy contained in the clause is not in issue.

However, an argument arose out of what was largely a drafting amendment that was introduced in the course of our discussions in Committee by the hon. Member for Eastbourne (Mr. Gow). The argument is not about the nature of the duty which arises. The duty is to drive and behave with reasonable skill and care according to the circumstances. That does not mean that a woman must necessarily drive more slowly, more carefully, or in some other way because she is pregnant.

The House may have noticed that I added the words "and behave" to the word "drive". It was pointed out during our discussions in Committee that, for example, it might not be sensible for a pregnant woman to wear a seat belt, whereas it might be sensible for her to wear one if she is not pregnant. The issue is to whom the duty is owed, who will have a cause of action against her, and through her, normally against the insurance company, if there is injury because she falls below the standard of driving and behaviour that is required. The normal common law rule is that the duty is owed to those whom she ought reasonably to have had in contemplation as likely to be affected by her driving, that is to say, anyone she knows to be, or should be aware of as being, if I may depart from the formula in all the textbooks, within striking distance. That was the intention in drafting the clause —namely, to add the unborn child to the classes to whom potentially a duty should be owed if she knew or ought to have known of their presence.

In other words, the opening words of the clause were intended to define the situation in which the unborn child might be added to those to whom the duty is owed. It is not who is picked for the team but whether there is to be a match.

But in Committee the hon. Member for Eastbourne expressed some concern in case the opening words might be construed either by the courts or anyone else who had to operate them as governing the test of whether the duty was owed to a particular unborn child, in case it might be held to follow that if the woman was pregnant, there was a duty to that unborn child, whether or not she knew or ought to have known of its presence.

I considered, and I still consider, that it would be unlikely that a court would place that construction on the clause as drafted. However, if the House has that anxiety, my hon. Friend the Member for Northfield and I feel that the formula should be available to allay anxiety. If there is a doubt, and if we can resolve it without any grave disadvantage, perhaps it is better to resolve it. The House may prefer to adopt that course. That is the purpose of the formula in the amendment.

Mr. Ian Percival (Southport)

I echo the opening words of the Solicitor-General in congratulating the promoter of the Bill on his promotion to the Front Bench. I wish him well. I also echo the hon. and learned Gentleman's words in saying that I, too, will have to leave before the end of this measure. Like the hon. and learned Gentleman, my absence indicates no lack of interest in the Bill. It is a measure which is of concern to everybody, as it raises questions of emotion and law.

Like the hon. and learned Gentleman I have a twin interest in this measure. I want to see something done to help those whom it is desired to help in the Bill, but as a lawyer I am concerned to see that what it is desired to do is done without further problems being created. I have a great interest in the Bill for both those reasons.

I congratulate my hon. Friend the Member for Eastbourne (Mr. Gow) for rising this matter in Committee, as well as a number of other important matters. He provided the means of discussing them. When one reads the Standing Committee reports, it is clear that my hon. Friend played a most prominent and useful part in the proceedings in Committee. I congratulate him on raising this point and on the persuasive way in which he put the argument upon it. Happily, he was sufficiently persuasive to persuade the Solicitor-General that this course should be taken. If I may say so, I congratulate the hon. and learned Gentleman on accepting the argument.

When there is a doubt and we have the means to put it right, let us do so. Regrettably, this is not done as often as it should be. Too often we leave the matter with scope for argument when there is no need to do so. Therefore, I am glad that the matter has been resolved in this way and I support what is being done.

I wish to make one or two observations first on this clause generally since the Solicitor-General said that the policy of its provisions was not in issue. It is not in issue this morning, but I do not want it to be thought that we have departed from the view which I expressed on Second Reading and which was echoed in Committee by my hon. Friend the Member for Eastbourne. We think that it would have been better to exempt the mother altogether. However, I shall not rehearse arguments which have been put at previous stages. I merely wanted to make it clear that, although this matter is not in issue today we have been concerned about these provisions and we hope that they will be fully debated in another place.

On Second Reading the promoters of the Bill and others expressed the desire to clarify and improve the law. We are all in agreement on that score, and, indeed, that is what we always want to do. However, we must not give the impression that following the enactment of the Bill the whole matter will be crystal clear or, indeed, that the Bill will help a large number of people.

Anybody who doubts what we said at earlier stages about the danger of raising new points fit for litigation has only to read the discussions in Standing Committee. One difficulty after another was raised and fully discussed. The Solicitor-General in replying to points often used the phrase "I do not know the answer to that problem", and he was right to admit it. New questions will be raised on the Bill, and they can be decided only after litigation. That is a pity, and it is some-think we should seek to avoid, as I am sure the Solicitor-General agrees. What we are doing will raise new doubts and difficulties. One hopes that it will be possible in another place for those with expertise in these matters to assist us in this respect.

I am concerned about this subject for two reasons. First, I believe that it is important for the public to realise that this is not a panacea for all ills. We hope that it will help, but nobody should place too high hopes on the provision. The second area for concern is that those wishing to bring an action under these provisions will go to solicitors who will say "I do not know what the provisions mean. We must go to counsel." They then go to counsel, who also says "I do not know what it means. Let us go to court." When the matter is taken to court, the judge will say "This is a difficult problem but I think that the answer is as follows, etc."—and, once again, people will say that the law is an ass and will blame the situation on the lawyers.

Sir J. Langford-Holt

They will blame us.

Mr. Percival

My hon. Friend says that they will blame us, but that is not true. They will blame the lawyers. It is important that the law should command the maximum amount of respect. A situation such as that which I have just described tends to bring the law into disrespect.

Let us look the problem in the face. We must accept that there are difficulties involved in considering this matter. We must accept that it is for Parliament to seek to avoid difficulties being created by legislation. This reinforces the desirability, where possible, of removing any doubt and difficulty. It brings me back to the point of the amendment. It may be said that the amendment makes only a small difference, but it certainly removes a doubt. The amendment is wholly desirable and I fully support it.

Mr. Leo Abse (Pontypool)

We all share the tribute paid by the hon. and learned Member for Southport (Mr. Percival) to the hon. Member for Eastbourne (Mr. Gow) for having allowed us to ventilate so many issues in Committee. I hope that it will be understood in the other place that the House of Commons has engaged itself closely with the minutiae of the Bill. We have not dealt with these provisions in a perfunctory manner. Although we accept that our views may be reviewed in another place, we hope that there will be no confrontations which will lead to any frustration of hopes—hopes which, as the hon. and learned Member for Southport stressed, must not be too high. The Bill will give limited assistance to parents with children who have suffered injury as a consequence of somebody's negligence.

In supporting the amendment the hon. and learned Member for Southport rightly stressed the necessity for this House, so far as possible within its collective ingenuity, to try to anticipate every possible situation that can arise so that litigation may be avoided. We do not possess the vision of prophets and seers, and those of us who have been involved in the promotion and passing of legislation know that the unexpected and unanticipated often arises and that the courts must be left to make decisions.

What concerns me is that by means of the amendment we may not diminish the possibility of new problems but may create new ones. I am aware of the stamina of the hon. and learned Member for Southport, with whom I have been engaged on so many other parliamentary occasions, but I should like him to direct his mind to the fact that the placatory gesture offered to Back Benchers by the Solicitor-General, although well intentioned, may lead to unfortunate results.

On every driver there exists a duty to take care—a duty that is owed to passengers and pedestrians. This case involves a driver—we are here dealing with a woman driver—as a result of whose carelessness somebody suffers the consequences. A duty is owed to the elderly woman who cannot sprint across the road, or to the child who may unexpectedly move out from the pavement and who would have been avoided by the careful driver, but not by a woman displaying lack of care. A duty is owed to such people.

On a dark night a woman is expected to drive in a sufficiently careful manner so that if she knocks down a black man in a black mackintosh she cannot claim exemption from a claim for damages because she says that she did not know that the black man was there. At the most, if a reasonably careful driver could have avoided the accident with that coloured man, she may plead that he contributed to the accident because he was wearing a black mac, although I doubt that a court would find that enough to mitigate the damages.

In all those cases a duty of care is well established even though the existence of the elderly woman, of the precipitate child, of the coloured man, was not known to the driver. Indeed, as hon. and learned Members will know, many jurists insist in the most reputable text books, which I studied 100 years ago when we were all studying our tort, insisted then, and still insist, that apart from a particular duty of care there is a general duty of care.

11.30 a.m.

I do not want to enter into the theoretical arguments about the particular or the general. Why, at this stage, should we introduce an amendment, however well intentioned, which fails to give to the unborn, unknown child the same protection as we are ready to give to the unknown precipitate born child, the unknown laggard elderly woman, or my black man on a dark night? I am not concerned about the lack of logic, because that is not so important. Justice is important. Where is the justice in giving this let-out to the woman driver's insurance company when such a let-out would not be given in all the circumstances and occurrences that I have categorised?

I would genuinely welcome further consideration to be given to another question. I am troubled that if we insert the suggestion that because the woman did not know that she was pregnant a claim can be allowed, we shall go further than anticipated.

The Solicitor-General

Perhaps I can help at least to discover what, if anything, is at issue between the two sides of the argument. My hon. Friend will agree that normally a duty of care in tort is owed only to those one knows are likely to be affected or those within the category of people whom one ought to have within contemplation as being likely to be affected.

Mr. Abse

I make no pretensions that my reply to my hon. and learned Friend has suddenly sprung to mind. I have refreshed my memory by looking at textbooks again, which I doubt my hon. and learned Friend has been able to do in the flurry and activity of office. The basic argument is whether there is a general duty of care or whether there is a particular duty of care. I have stressed that if there is a general duty of care, we are making a special exemption in this case. But even if there is only, as some jurists say, a particular duty of care, that still imposes a duty on the driver in this case to be careful.

As I have tried to show, we are making a particular exemption of someone because the situation is unexpected and because the woman, in this case, may not have known that she was pregnant. She may not have known that a child was going to dart across the road, or that an elderly woman would take longer than normal to cross the road, but in those cases the law requires that there is a duty of care. One must drive taking all such circumstances into account. I am pleased to see that my hon. and learned Friend the Member for Hackney, North and Stoke Newington (Mr. Weitzman) is in the Chamber, because we need to probe this issue. The desire of the hon. Member for Eastbourne seemed to have more logic and justice when he expressed it in Committee than it appears to have now, and I am coming to the conclusion that we are unwittingly creating an injustice—and more than that.

My next point will be of particular concern to the hon. and learned Member for Southport. In meetings of the all-party group concerned with disabilities it was forcefully suggested that the question of contributory negligence on the part of a mother would mean that she would be under surveillance for her conduct for a period of nine months. That was because something which the mother may have done in those nine months may, it could be pleaded, have contributed to the damage of her child, whereas in most cases if contributory negligence is at issue, it arises from a particular piece of behaviour at a particular moment. That would be usual in a road accident.

The organisations of the disabled, through their spokesmen, have correctly pointed out that it seems as though there is a possibility of surveillance over a very long period. That argument is right, but it is inescapable if justice is to be done to the defendants as well as to the plaintiff.

Let the House pause for a moment and consider what could occur. In a case where a child was born maimed or disabled, surely, the question of whether the driver knew, or ought reasonably to have known, that she was pregnant should be probed. But that could be probed only in a most prurient manner.

I find the whole question of whether the woman knew or ought reasonably to have known that she was pregnant troublesome. If a woman made a claim, the court would want to know—if attention was attracted to the amendment—if she could prove that she did not or could not know that she was pregnant. Judges, to use an old phrase, do not want to go beneath the sheets to find out whether the woman has or has not had sexual intercourse at a time which would make it possible for her to know that she was pregnant.

But how else could the mother be tested in court? Although it might be very irksome for a defending counsel, it would be his duty to start questioning the woman about sexual intercourse. It could cause all sorts of embarrassment. A woman who was separated from her husband might have a whole range of inquiries directed to her.

We are not concerned with the woman's behaviour. We are deeply concerned with a child who may be born disabled. Therefore, although I believe the amendment to be well intentioned, I am worried about it, as a solicitor. I am sure that many barristers in the House will also agree that they would not like to have to pursue the line of questioning I have suggested. I accept that, as the hon. and learned Member for Southport has stressed, the object of the amendment is to provide some necessary clarity, but in a few words it introduces many problems, which may include an unhealthy invasion of privacy in open court dealing with a case of civil liability.

I am not being didactic, but these matters were not raised in Committee. I may be wrong in the main line of my argument. But I should be happier if there were a pause to consider the debate. Then, if I am wrong and the balance of argument is against me, the matter can be put right in the other place. I am sure that the hon. and learned Member for Southport and the hon. Member for Eastbourne realise that I take this line because I am deeply troubled.

Mr. Percival

I propose to leave it to my hon. Friend the Member for Eastbourne to deal with the detail, but I intervene to thank the hon. Gentleman for his gracious remarks about me, which I appreciate, and to respond to his invitation to this extent. I think the reason why all the people to whom the hon. Gentleman referred, including the black gentleman in the dark overcoat, are included is that they all fall within the category of people one knows may be on the road. One must take care in respect of them, which is what the amendment is directed at as well. In practice, that is how the courts approach the matter, even if some textbook writers have said that the approach should be wider.

I agree that the hon. Gentleman's second point is very important. I referred to it on Second Reading. I think that the history of the mother during pregnancy may well be laid open by the Bill, because even when one is proceeding not against the mother but against someone else, it must be open to that other person to say "My conduct may have had something to do with it, but the mother's conduct also had something to do with it." That is not excluded by the Bill.

I referred to that on Second Reading as one of the unfortunate consequences which would flow from the Bill and which could not be avoided. Although I follow the hon. Gentleman's argument, and shall examine it carefully, I do not think that the amendment adds anything to that consequence. I agree with the hon. Gentleman that all the matters he mentioned may be the subject of investigation in proceedings, but I do not think that the liability to that is enlarged by the amendment.

Mr. Abse

I agree that the hon. and learned Gentleman put into issue the question of the history. It is inescapable, but as it will be applying largely, though not exclusively, in road accident cases, it is here that what the hon. and learned Gentleman feared is most likely to arise.

Subject to what may be said by hon. and learned Members in particular, I ask the hon. Member for Eastbourne whether it would not be wiser for us not to press my hon. and learned Friend the Solicitor-General to continue with this matter until we have had a pause and considered whether it should be reviewed in another place.

11.45 a.m.

Mr. John Hannam (Exeter)

Like the hon. Member for Pontypool (Mr. Abse), I am not entirely happy about the amendment.

I speak for the first time in the debate on this measure, and I speak as a layman. I do not profess to be able to enter into the detailed legal arguments, but I am secretary of the all-party Disablement Group, which has been concerned about the implications of the Bill. Some of my colleagues in the group and I fear that the amendment will reduce the chances of disabled children claiming compensation.

As we see it, the clause defines an area within which compensation for pre-natal injury in a car accident can be claimed from insurance companies. It is a direct approach for cash in real terms. The present wording allows a child to claim if it can be shown that it had been conceived before the injury. The amendment seems to reduce the chances of such a claim, because the mother will have to show that she knew or should reasonably have known that she was having a baby.

One can foresee the problems and complexities. When an accident occurs, the injured mother will have to remember to state clearly to the constable there, or to other witnesses, that she thinks she is pregnant. She must give some indication which can be used in a court action that she thought she was pregnant. Otherwise, at a later stage there will be all sorts of inquiries and investigations into whether she knew she was pregnant. Only recently there was a case in the other place concerning a mother who did not know that she was pregnant until after five months, and even then thought that she was still a virgin.

Therefore, I ask the Solicitor-General in what circumstances the amendment removes the right of a child to sue. I believe that it will deprive certain children of that right. If the mother has to show after an accident that she should have known she was pregnant, will she have to give evidence in court that she forgot to take the pill, for example? I hope that I can be reassured before we pass the amendment that it does not represent a further weakening of the right of a child to claim damages.

Although the original wording was obviously open to legal doubt and interpretation, it presented to a layman like me a much clearer definition of the right of a child to claim. I add my voice to that of the hon. Member for Ponty-pool in calling for a re-examination of the wording of the clause and the amendment.

Mr. David Weitzman (Hackney, North and Stoke Newington)

I regret that I did not have the privilege of serving on the Standing Committee that considered this Bill, although I am particularly interested in the subject matter. I had the honour of assisting my hon. Friend the Member for Carlisle (Mr. Lewis) when he introduced a Private Member's Bill aimed at achieving the same object. The hon. Member for Exeter (Mr. Hannam) was one of the sponsors of that Bill.

I regret the Solicitor-General's decision to move this amendment. The hon. and learned Member for Southport (Mr. Percival), to whose words I listened with interest, is a lawyer, as I am and as is my hon. Friend the Member for Pontypool (Mr. Abse).

My hon. Friend the Member for Pontypool adduced a very cogent case as to why these words should not be included. The hon. and learned Member for Southport said that words are inserted in a Bill to remove doubt. Words are inserted on many occasions also which may cause doubt and result in litigation. Unless the inclusion of these words is absolutely essential for the removal of doubt, I see no reason for their insertion.

As my hon. Friend the Member for Pontypool rightly said, the duty of care in negligence is clear. It is a duty owed for instance, to a child running across the road and to a disabled person, amongst others. The court asks "You have injured the plaintiff. What is your duty of care towards him?" If that duty has been breached and there is negligence, the defendant is liable.

I take the clear view as a lawyer that the words used in Clause 4 are sufficient for the purpose and that it is entirely unnecessary to insert these words. Of course, I shall not oppose the amendment, but I hope that when the Bill reaches another place further consideration will be given to this point and that it will be decided that these words are unnecessary.

Sir J. Langford-Holt

May I as a layman ask whether it is not one of the principles of English law in deciding guilt that it must be established that a person knew what he was doing? The word "knowingly" is often inserted into enactments under which the determination of guilt arises.

Mr. Weitzman

I my view, the word "knowingly" does not enter into this matter. The duty of care is there and the words in Clause 4 are sufficient to cover all cases.

Mr. Ian Gow (Eastbourne)

The House should be very grateful to the hon. Member for Pontypool (Mr. Abse) for the very clear way in which he spelt out some of the difficulties which he visualised would occur if the amendment were to be made. When I was listening to the hon. Gentleman I thought that he was making as powerful case for the withdrawal of the whole of Clause 2 as he was for the with drawal of the amendment.

The principle enshrined in Clause 1 is that damage done to a child before birth should be actionable by that child in all circumstances save one. That one exception is where the damage which the unborn child suffers is attributable to the mother. Then that one crucial key exception is watered down by Clause 2, for Clause 2 provides that, though a mother, knowing that she is pregnant, goes, for example, on the big dipper at Battersea Fun Fair, though she goes galloping on her horse, though she takes drugs which she knows may be dangerous to the child, though in any one of those three cases there would be no redress for the child, where a mother is careless as a result of driving and as a result her unborn child suffers injury, in that one case the mother will be liable for the disability suffered by the child.

I believe that the amendment would make an improvement to the Bill. I must answer the question posed by my hon. Friend the Member for Exeter (Mr. Hannam). He asks whether the amendment would in any way erode the right of the child to compensation. The answer to that question, in my opinion, is that it will, because I believe that there is a difference in the duty of care resting upon a pregnant mother to take care of the foetus within her, depending upon one key test: does the mother know that she is pregnant or ought she reasonably to know that she is pregnant? There is a key difference between the duty resting upon a mother according to whether she knows or does not know that she is pregnant, according to whether she ought reasonably to know that she is pregnant, and whether it is unreasonable to ask her to say that she is pregnant.

I shall seek to illustrate that point. There are, sadly, no female Members present, but even those of us who are fathers acknowledge that the risk of going in a dodgem car for a woman when she is pregnant is one that many mothers would not take. We know that mothers who are pregnant do not ride a horse, certainly not in the latter months of pregnancy and sometimes not in the very early months or early weeks of pregnancy, because it is a danger to the child.

Mr. Weitzman

At common law doubts have been expressed that it may well be that a woman who is driving and who is negligent but who did not know that she was pregnant is liable. By inserting these words Parliament will shut out that possibility of liability at common law.

Mr. Gow

Absolutely. Most women when they know that they are pregnant drive rather more carefully than when they are not pregnant or when they believe that they are not pregnant. The difference between the hon. and learned Member for Hackney North and Stoke Newington (Mr. Weitzman) and the hon. Member for Pontypool and myself is that I believe that a mother who knows that she is pregnant or who ought to know that she is pregnant is under a greater duty to take care than one who is not.

Mr. Weitzman

The hon. Gentleman has shaded the point I put to him. If a woman who does not know that she is pregnant is negligent and her unborn child suffers damage, it may well be that at common law the child has a cause of action. Some doubt has been cast upon that proposition, but that may well be the position at common law. The hon. Gentleman argues that the amendment would cut out that right at common law and would secure that a woman who did not know shall not be liable although she may well be liable now at common law. Does the hon. Gentleman really desire to shut out the possibility of redress at common law?

Mr. Gow

If I understand Clause 4(5) correctly, and the Solicitor-General will correct me if I am wrong, the Bill replaces the common law in respect of future births but not in respect of births which took place before the passing of the Bill. To that extent the hon. and learned Gentleman is right. If the Bill becomes law it will replace the common law in respect of future births. Though there may be a right in common law today to damages against a mother who does not know, that right would be removed by the amendment.

12 noon.

Mr. Abse

Is not the hon. Gentleman making it clear that the Solicitor-General should not proceed with the amendment if the aim of the House is to assist children who are suffering from a disability? The hon. Gentleman has been honest and frank in admitting that an existing possible right for a disabled child will be taken away by the amendment. Surely the Solicitor-General, in the light of the views which have been expressed, cannot go further with the amendment, because it is a matter which is giving cause for concern.

Mr. Gow

The hon. Member for Pontypool will recognise that it is not only in respect of driving that child plaintiffs will be worse off. It may be the case in common law today that a child born disabled will have a right of action against its mother for disabilities occurring other than through that limited sphere of injury while the mother is driving a motor car. Those rights, too, are removed if the Bill becomes law as it is drafted by the promoter of the Bill himself.

We have faced up directly to this issue and the only issue between the two sides of the House is whether a mother who knows or ought to know that she is pregnant owes a greater duty of care than a mother who does not know, or ought not reasonably to know. I answer that question very clearly by saying that a mother who knows she is pregnant is under a greater duty of care. I believe that the amendment improves the Bill and I hope that the House will agree to it.

Sir J. Langford-Holt

I wish to apologise to the Solicitor-General for my intervention earlier. I was wondering what had happened to the motion to be moved by the hon. Member for Ilford, North (Mrs. Miller). I did not appreciate that that motion arose only at the time of Third Reading.

I should also state that, like my hon. Friend the Member for Exeter (Mr. Hannam), I am speaking entirely as a layman. One has listened with great interest to the exchanges between hon. and learned Gentlemen on both sides of the House. I am not quite sure, with all due respect to them, that I am any clearer now than I was at the beginning. I came to the House quite clear as to what I thought about the amendment, but I am bound to say that at this moment I am somewhat bewildered, especially after my intervention to the hon. and learned Member for Hackney, North and Stoke Newington (Mr. Weitzman). Although he answered with great clarity, he threw all my notions as to British law into the melting pot.

There is one question which I should like the Solicitor-General to answer. The clause says: A woman driving a motor vehicle when she is pregnant …". Exactly what is meant by the word "driving"? We have had this problem in other connections, mostly to do with breathalysers and drunken driving. Exactly at what point is a person driving a car, and in control, or in charge of the car, or has the key, and exactly at what point does responsibility begin?

To me as a layman it appears that responsibility is involved, because I want to know precisely what is meant by the word "driving". I apologise for asking what may be a stupid question which may require a simple answer from the Solicitor-General but I take a contrary view to my hon. and learned Friend the Member for Southport (Mr. Percival). I believe that people always blame all of us in this House—not just him and his learned Friends—for the excess of legislation and the poor quality of legislation which sometimes comes out of this House.

The Solicitor-General

If I may have leave to speak again, let me say in response to the hon. Member for Shrewsbury (Sir J. Langford-Holt) that I do not think his question admits of a simple answer. I shall not weary the House by embarking upon a complicated answer at this stage, although the question is one to which we should perhaps give a little care.

As I understand it, the word "driving" in this clause means what it means in the Road Traffic Acts and in the various decisions under those Acts. It is quite true, as the hon. and learned Member for Southport (Mr. Percival) said, that one of the considerations in the minds of the Law Commissioners when they recommended the exception given effect in this clause was that a lady who is driving will probably be covered by insurance. This provision is found in the Road Traffic Acts and it is the interpretation given to the word in that part of the legislation which, as I understand it would have effect in this clause.

Sir J. Langford-Holt

The Solicitor General talked about insurance which refers to an act of driving. By definition, injury to a foetus by one particular act of driving may not become immediately apparent. It may be that the mother concerned may be driving different cars on different occasions and with different insurance companies. Exactly how is one to identify which particular act of driving is the one which becomes actionable?

The Solicitor-General

That problem is one which runs through a great deal of our legal system. The problem of causation and evidencing a specific causation certainly runs through industrial injury legislation and industrial injury common law. I am not sure how we can eliminate those difficulties in legislation. If the hon. Gentleman is making the point that these difficulties, which we find elsewhere in our law, are to some extent being introduced into this part of the law, in Clause 2, I accept his view. I think they are, but on other occasions the courts cope with them, not always easily, because sometimes they are a headache for the lawyers and the judges. However, the courts cope.

I would not myself regard it as a very powerful argument against the clause that these difficulties, which exist else where, will be applied to this area. I hope that the hon. Gentleman will forgive me if I do not embark on a more elaborate exposition of what in various contexts has been held to be driving and some of the evidential difficulties about attributing an event to a particular cause where it might possibly have been attributable to a series of causes.

The argument adduced by my hon. Friend the Member for Pontypool (Mr. Abse) falls into two categories—juris-prudential and pragmatic. I take up the point of my hon. and learned Friend the Member for Hackney, North and Stoke Newington (Mr. Weitzman) that it is possible that the Bill will remove certain rights which are already afforded by the common law. One of our difficulties, and one of the difficulties which confronted the Law Commission, is that the rights which the common law confers are in a penumbra of uncertainty.

Mr. Weitzman

Why does my hon. and learned Friend say that Clause 2, without the amendment, would remove common law rights?

The Solicitor-General

I did not say that. I said that the common law, as it exists, is an area of uncertainty. As the hon. Member for Eastbourne (Mr. Gow) said, in relation to future births the Bill would replace the common law and therefore would replace uncertainty with, we hope, certainty. In the process, it might remove certain rights which are given by the common law.

Mr. Abse

Will my hon. and learned Friend say in what way the Bill removes an existing right? It is clear from Clause 4(5) that it replaces existing law with the object of totally clarifying the position. It replaces doubt by certainty, but it does not take anything away.

The Solicitor-General

It replaces doubt by relative certainty. That is our hope. I support the Bill as vigorously as my hon. Friend does. I am not trying to argue against it.

My hon. Friend has asked for an example. At present, it is possible that a child who is born injured in consequence of a pre-natal event will, in certain circumstances, have a cause of action against the mother other than when she is driving. One effect of the Bill will be to remove that cause of action. If we replace doubt by relative certainty, that is necessarily one of the consequences of what we do.

Mr. Gow

Is it not the case that if the Bill becomes law a child who may at this moment have a right of action under common law against the mother—for example, the mother may have negligently taken drugs or had gone riding during pregnancy—will no longer have that right?

The Solicitor-General

That is exactly what I was trying to say. We seem to have spent a great deal of time on what I intended to be only a preliminary remark. It is true that it is possible that the Bill will remove certain rights which might have been held to exist at common law. The example just given by the hon. Member for Eastbourne is an obvious one.

May we consider the policy of Clause 2? I understand that the policy may be in dispute, as the hon. and learned Member for Southport said, but it is not in dispute on this amendment. The policy which it was intended to implement was to say, first, "Let us consider the duty of care." We are considering, not the standard of care, but the people to whom the duty is owed.

No one says that the woman must drive more carefully, more slowly even, because she is pregnant. The standard of care—and my hon. Friend the Member for Pontypool elaborated on this point in Committee—is a common standard: it is the duty to drive with reasonable care and skill having regard to all the circumstances, including such circumstances as whether an elderly and slow lady is crossing the road, and whether it is a dark night and a man in a black mac may appear. That is not in question. That standard of duty is not affected by the clause. It is the people to whom the duty is owed who are affected—namely, the people who will have a claim against the woman and, through her, against the insurance company if she falls below that standard.

12.15 p.m.

It was intended that the unborn child should be in the same position as everyone else. In other words, as with everyone else, there should be a duty of care to the unborn child if either the woman knew of its presence or if it is within the class of people whom she should reasonably contemplate as being within what I called earlier striking distance. I take the point of my hon. Friend the Member for Pontypool that some of the jurisprudents have argued that there might be a wider duty than this. If it were subsequently held that there was a wider duty—that someone whom one should not even have in contemplation might be within the ambit—to that extent what we are doing would cut down the number of people who might claim.

Mr. Abse

Even if it is not a general duty of care but only a particular duty of care, it could reasonably be argued that any woman who takes part in a sexual act may produce a child. The amendment deliberately excludes that circumstance. If a woman has had sexual intercourse, unless she knew that she was pregnant, even though it was reasonable to assume that she might be pregnant, we are cutting out the possibility in that respect. The hon. Member for Exeter (Mr. Hannam) put his finger on the point when he said that this amendment takes away rather than adds a right.

The Solicitor-General

Assuming that my attempt to formulate the class of people to whom a duty is owed is right, it is unlikely that a lady who had had sexual intercourse but had very good reason to believe that she was not pregnant would owe a duty even under the present common law. I concede that a great deal can be said on both sides. The example quoted by the hon. Member for Eastbourne was a case of what the lawyers call fecundatio ab extra: there had not been penetration, so the lady reasonably thought that she could not be pregnant. However, I follow what my hon. Friend says.

The difficulty that we are all in is that there is little in common law about this matter because this would presuppose an area in which normally the duty would be owed to a pregnant woman. There have been very few occasions when a duty owed by a pregnant woman has been considered. The jurisprudence of a duty owed to a pregnant woman does not assist us much in this respect.

Mr. Weitzman

May I put this difficulty to my hon. and learned Friend? Clause 4(5) replaces the common law. If the amendment is accepted, Clause 2 will read: A woman driving a motor vehicle when she knows (or ought reasonably to know) herself to be … pregnant. That will replace the common law rule. It does not remove the possibility of arguing that under the common law a woman is still liable although she did not know. This is an example of inserting words which may cause great difficulty in future cases.

The Solicitor-General

I wholly agree with my hon. and learned Friend. I have said that it is unlikely that a court will hold that there was such a duty at common law, but one cannot exclude the possibility and, to that extent, the amendment will remove that possibility.

Mr. Percival

It will remove the doubt.

The Solicitor-General

Yes.

I am not sure that I can assist the House further on this part of the case. That was the policy of the clause, that the duty should be owed by the woman to the unborn child if it was within the class of people—I use the term "people"—whom she ought to contemplate as being present, and not otherwise. That is what the original draftsmanship was intended to produce, but the hon. Member for Eastbourne pointed out that there might be doubt about whether it achieved that, and the purpose of the amendment is to remove the doubt.

If it is said that that ought not to be even what we seek to achieve, that we ought to try to achieve something else, I fully accept that there is that area in which there could be argument about policy. Let me explain my own position here. I have tried to assist the House because I thought that in Committee, following the arguments put by the hon. Member for Eastbourne, there was a desire that we should attempt to find such a formula. But, if I may say so, I am neutral in this matter. If the House does not wish to avail itself of the formula, I certainly do not intend to be persuasive about it.

I fully acknowledge the pragmatic arguments advanced by my hon. Friend the Member for Pontypool to the effect that we might be inviting some distasteful investigations by insurance companies, and so on. Plainly, that is one matter which the House will have in mind when reaching a decision.

Mr. Percival

Will the Solicitor-General agree with the following proposition? At present, it is possible that a child—an unborn child or a child after it is born—may have a claim against its mother in any one of the circumstances to which my hon. Friend the Member for Eastbourne (Mr. Gow) referred. The Bill as drawn is resolving all those doubts by excluding those claims. That is the point: the doubt is resolved by excluding them.

What the Solicitor-General is here trying to do is to resolve a further doubt which, as is clear from the discussion in the Chamber today, will arise unless we resolve it, and the price being paid for resolving that doubt is very small compared with the price being paid for resolving the other doubts—that is, by ruling out a claim by a child where the mother had no reason to know that she was pregnant. I suggest that that is a very small price.

Most of us would think that such a claim would not run anyway. I think that that is the view which the promoter and his advisers took. They took the view that, as it stands, it would mean that only a mother who knew or ought to have known she was pregnant would be liable.

I subscribe to that view, and I therefore think that what is being lost here, if anything at all, is very small, and is but a small price to pay for certainty. I have intervened to put that proposition because I think that it ought to influence the House. In my view, the advantages of certainty gained by the Solicitor-General's amendment far out weigh any possible loss which might result.

The Solicitor-General

I am grateful to the hon. and learned Gentleman for formulating the proposition in that way. I entirely accept that the resolution of the doubt is what is being gained, and the price which we pay is excluding certain possible claims which he and I think would have been unlikely to succeed anyway. Whether the price is too high is a matter on which I should prefer not to express a view. I am content to leave that to the House.

I turn now to what it is best to do about the amendment. It seems that there is a clear desire that it ought at some stage at least to be available for further debate. One possibility is for me to ask leave to withdraw the amendment, on the basis that the same amendment could be moved in another place. The other possibility is to invite the House to pass the amendment on the basis that, if it was thought right in another place to remove it, that could be done.

As a matter of procedure, I suggest that it would be easier to take it out later, and for that reason my preference would be to see the amendment passed today, though on the basis that the significant considerations which have been urged today should be considered in the other place. I am content to leave it in that way. I do not propose to ask leave to withdraw the amendment.

Amendment agreed to.

Back to
Forward to