OCCUPIERS' LIABILITY BILL (Hansard, 4 June 1957)

§ LORD MILNER OF LEEDS

My Lords, your Lordships may remember that on the Second Reading of this Bill the noble and learned Earl, Lord Jowitt, and I offered some observations which were designed to find some means whereby rather greater protection than at present exists under the law might be given to children who trespassed and thereby suffered injury. The noble and learned Viscount on the Woolsack was then good enough to say that he would look into the matter, so that we might see whether it was possible to put any Amendment before your Lordships on the Committee stage. I think I owe your Lordships some explanation as to why, in my view and also in the view of the noble and learned Viscount on the Woolsack, it has not been possible to do so.

Following upon the Second Reading I made a number of inquiries and found that there were provisions of a kind in certain Acts of Parliament. One was 200 supplied to me by the Association of Municipal Corporations, and was a provision in the Mines and Quarries Act, 1954. That applied only to any quarry or disused mine, or place of that description, and put upon the owners thereof the obligation to fence, and so forth, where there was or might be danger to the public. Then there was a rather remarkable provision in the Newcastle-upon-Tyne Improvement Act, 1865, whereby the mayor and corporation were entitled to take certain steps to compel owners to repair or protect dangerous places. But neither of those two instances precisely covered the position which the noble and learned Earl, Lord Jowitt, and myself had in mind. I am bound to say that the real difficulty here is that which was set out by the Law Reform Committee—namely, that it was difficult to evolve an exception in favour of child trespassers which in practice would give any substantial degree of protection without imposing too heavy a burden upon occupiers of land used for perfectly legitimate purposes.

I have therefore to tell your Lordships that I have not been able to devise a formula which would protect children who trespass and yet would not place an intolerable burden upon landlords or occupiers of property, if one were to put a general obligation other than the common duty of care which is set out in the Bill itself. Incidentally, the Bill before your Lordships does make a provision whereby an occupier of premises, in considering what is his common duty of care, has to take into account the fact that children are less careful than adults. The difficulty, of course, is to extend that provision to the case of children who are trespassers. It would appear that if an obligation were put on landlords or occupiers, I might have to protect trees in my garden, or a pond, or a bathing pool, or even a wall; because these, conceivably, could be potential dangers to children. We all know that children are apt to climb walls and trees, and it might be that these objects might therefore be thought to be potential dangers. In the circumstances, it has not been possible to devise a formula or to put an Amendment before your Lordships.

There is a further difficulty, though I have no doubt that this could be overcome. It is questionable whether a provision of the nature we had in mind could 201 be inserted in this particular Bill which covers only lawful visitors. I think the term is, "persons lawfully on any land or other property." The point we have in mind is some form of protection for children who are trespassers. The matter is rather serious, because some figures which have been supplied to me by the Association of Municipal Corporations indicate that quite a number of fatal accidents occur—as indeed your Lordships must know. In Birmingham, for example, the number of fatal accidents by drowning in two years was four; in Manchester, there were twenty-seven fatal accidents by drowning in eleven years; in Hull, there were twenty-three fatal accidents by drowning in twelve years. I assume that in all these cases the victims were children. The matter, therefore, is quite a serious one, and I should welcome—as I am sure would the noble and learned Viscount who sits on the Woolsack—any suggestion which could be made for solving the problem. Meanwhile, it clearly would not be any use to offer any Amendment to your Lordships on this particular Bill. I am glad to have had the opportunity of making these few observations upon it, and to thank the noble and learned Viscount on the Woolsack for his help and courtesy.

§ THE LORD CHANCELLOR

My Lords, with your Lordships' permission I should like to thank the noble Lord, Lord Milner of Leeds, for the care that he has given and the trouble he has taken in regard to this point. He has been good enough to write to me since the last stage of the Bill. I wrote in reply and I hope that I showed him—as indeed is the case—that I had given very careful consideration to the point he raised. As he has said, with the frankness which one would expect from him, the difficulty is to find a solution of this problem which would not place an intolerable burden on the occupiers of land. I did consider the suggestion which he put forward about local authorities proscribing certain places as dangerous. That has its own difficulties, and it would also introduce the further complication of a criminal sanction into a Bill which is dealing with civil remedies. Therefore, I am afraid that we must come to the position which I took up on Second Reading—that this is not a problem that can be solved in the context 202 of the present Bill. I should like the noble Lord to know that if he has any further ideas, either for legislation or for reference to the Law Reform Committee, on this point, I shall be very glad to discuss them with him at any time.