§ 5.13 p.m.
§ Amendments reported (according to Order).
§ Clause 3 [Provisions as to making, variation and revocation of orders as to application of this Act]:
§ VISCOUNT BERTIE OF THAME had on the Paper an Amendment, in subsection (10), to leave out "may" where that word last occurs, and insert "shall." The noble Viscount said: My Lords, I have had an opportunity of seeing the noble Earl, Lord Radnor, before the debate commenced, and he has given me good and sufficient reasons for not moving the Amendment. I therefore propose not to do so.
§ Clause 8:
§ Saving of rights.
§ (2) In respect of injury sustained on land to which this Act applies by persons being thereon in consequence of this Act, the rules of law relating to injury sustained on land by persons trespassing thereon shall have effect:
§ Provided that nothing in this subsection shall be construed as authorising the owner or occupier of land to which this Act applies, or any person having an interest therein, to do or cause to be done thereon anything involving a contravention of subsection (1) of Section one of this Act.
§ 5.14 p.m.
THE EARL OF RADNOR moved, in subsection (2), to leave out "by persons being thereon in consequence of this Act, the rules of law relating to injury sustained on land by persons trespassing thereon shall have effect" and insert:
neither the owner nor the occupier thereof nor any person having an interest therein shall be under any greater liability than he would have been under if the land had not been land to which this Act applies and persons allowed in consequence of this Act to have access thereto had been trespassers thereon.
§ The noble Earl said: My Lords, this Amendment is put down following on the discussion that your Lordships had on an 569 Amendment to this subsection, which I moved and your Lordships agreed to, during the Committee stage. We had an interesting discussion, and two points were put forward which I think merited further consideration. As a result of that consideration I have put down the Amendment which is now before your Lordships. The particular points that were at issue were principally raised by the noble and learned Lord on the Woolsack, who suggested, first of all, that the word "trespassing" should not be included in this subsection, because those who go on access land will not be trespassers; and secondly, that the wording could be very much simplified. This particular subsection deals with the liability of the landowner, so far as any injury may accrue to those who get on the land which is the subject of an Order under the Bill, and, as I think was made perfectly clear on the Committee stage, that particular part of the law is extremely involved and indeed, for the layman, very difficult to understand. But in the Amendment that is now before your Lordships I hope that I have met the second point of the noble and learned Lord by putting it in more general terms and leaving the liability of the landowner where it is.
With regard to the inclusion of the word "trespassers" in the Amendment, the reason for that is that, though I entirely agree with the noble and learned Lord on the Woolsack that these people will not of course be trespassers if this Bill becomes an Act, it is most desirable to make clear where the landowner's liability for any injury sustained begins and ends, and it is desirable—and it is intended—that that liability should be the same as his liability is to trespassers. I find it necessary to include the word because I have been told of an extract from a book, which I have never read, nor am I likely to read, which is Winfield on the Law of Tort. The noble and learned Lord on the Woolsack knows much more about that book than I do, but my source of information makes me feel that Winfield on the Law of Tort is an authority at any rate worthy of some consideration. He says, on page 605:
It is often hard to say whether a person is a trespasser or a licensee, ….
Your Lordships will remember that the noble and learned Lord made it perfectly clear on the Committee stage that the liability, so far as the licensee is con-
cerned, is considerably different from the liability so far as the trespasser is concerned. Winfield goes on:
but it would appear that no one is a trespasser who enters either by authority of law, or by express or implied permission of the occupier, or by the occupier's acquiescence in continued acts of trespass.
Note the words "who enters either by authority of law." If this Bill becomes law people will enter upon the land by authority of law, and they will apparently cease to be, in law, trespassers, and therefore presumably the liability of the landowner, if they come on the land, will be somewhat different from his liability to a trespasser. In those circumstances I feel that it is desirable to make it perfectly clear in this clause that these people are, for the purposes of any injury which they may sustain, and for that purpose only, to be treated as trespassers, and as nothing else.
§ The only other point that arises on it is the point that was raised by my noble friend Lord Phillimore, as to the frequency with which people will go on the land. Of course, there will presumably be a great many more people on the land under the operation of this measure than there have been hitherto, and the liability is therefore the greater. I hope that that has been dealt with in the Amendment in the words which state quite clearly that the landowner or the occupier shall not be under any greater liability than he would be if this Bill were not passed. I do not think I can explain any more clearly the purpose of this Amendment. I know that on the Committee stage your Lordships agreed to put into the Bill an Amendment on the same subject. It has been pointed out to me that it was contrary to the usual practice of your Lordships' House that when the promoters of a Bill promised to consider a matter on Report the Amendment should be agreed to. I think, however, it has performed a useful service in that the Amendment that was then put in included the word "trespassing" which is a possible source of contention among a certain number of people who are actively interested in the Bill. In spite of that word having been put into the Bill there has been, so far as I can ascertain, no unfavourable reaction, and I hope therefore that in consequence of that the noble and learned Lord on the Woolsack will not object to its continued inclusion in the Bill. I beg to move.571
Page 12, line 38, leave out from ("applies") to the end of line 40, and insert the said new words.—(The Earl of Radnor.)
§ THE LORD CHANCELLOR (LORD MAUGHAM)
My Lords, I am obliged to the noble Earl for paying attention to the suggestion I made with regard to the drafting of this clause, because it is clearly only a question of drafting. I frankly admit I can understand some members of the House thinking it was a little bit in the nature of pedantry to accept the substance and desire a certain amended form, but, after all, it is the sort of thing I am here to assist your Lordships in if I can. I think the present form in which the clause stands as a result of the Amendment of the noble Earl removes the difficulty and objection I felt to it in its original state, and it only remains for me to say that I am happy to approve of the Amendment.
§ On Question, Amendment agreed to.