§ 3.15 p.m.
§ Order of the Day for the Second Reading read.
§ THE LORD CHANCELLOR (VISCOUNT KILMUIR)
My Lords, your Lordships will recognise this Bill as one which was before this House in June of last year and which, I think I can say without fear of contradiction, had the unanimous welcome of the House. For lack of time it was not then possible for the Bill to proceed to another place before the Session ended, but it has now been reintroduced there and passed through all its stages without change, so that the Bill which is now before your Lordships is, for all practical purposes, identical with the Bill which your Lordships approved in 1956. In these circumstances, I feel certain that the House would not wish me to do more than to remind them in broadest outline of the effect which the Bill is intended to have.
The House will remember that the changes in the law to be made by the Bill are based on the recommendations contained in a Report presented to me by the Law Reform Committee in October, 1954. After a most thorough 256 examination of the law concerning the liability of occupiers of land or other property to invitees, licensees and trespassers, that Committee of eminent lawyers has come to the conclusion that the law should be simplified by the substitution of one uniform duty of care owed by the occupier to all his lawful visitors for the diverse classifications of visitors and duties which had evolved under the existing law.
I should like to add here a few words about this distinguished Committee and the invaluable work which they are doing. All of us who cherish the great heritage which this country enjoys in the Common Law and who wish to see this heritage preserved at its best owe a great debt of gratitude to the members of this Committee. Their selfless labours, carried out at a considerable sacrifice of time and energy, have by now, after the most careful examination of the problems involved, resulted in no fewer than five of these most valuable Reports. The work of the legislator who wishes to prevent anachronisms or distortions from marring the virtues of our Common Law is made incomparably easier by the Committee's labours.
Briefly summarised, the Bill deals with two separate, though related, subjects of liability for injuries suffered by persons entering premises: that is, the liability of the occupier on the one hand, and the liability of the occupier's landlord, in certain circumstances, on the other. I think most people nowadays would agree with the general proposition that an occupier of premises, as the person who has control over the state of the land or structures and who must be assumed to know that in the ordinary course of things various persons will lawfully come on to them, should take reasonable steps to see that such persons do not come to harm as a result of dangers which he causes or permits to exist there. It is the object of the Bill to make the law accord more fully with this general principle.
The occupier's duty under the Common Law may have originated in the recognition of some such basic principle, but in the course of time the courts have developed distinctions in the extent and nature of the duty which have become artificial and complex. As a result, injustice may at present result in certain 257 circumstances, while in some others the rules of the law have to be strained to avoid anomalous results. I need only remind your Lordships of the categories of licensees and invitees into which the law has divided lawful visitors, with a lower standard of duty owed to the former and a higher to the latter, and of the unreal dividing line between the two, which is based on the material interest which the occupier of the premises has in the visitor's presence on his premises.
In the infinite variety of purposes for which people enter premises, it is often impossible to apply such a test satisfactorily, and anomalies result. I could give many illustrations of such anomalies. Perhaps a good example of the anomalous way in which the test of material interest may operate in quite common circumstances is this. Suppose that I had asked guests to a party and two of them are injured when a rotten floor-board collapses under them. If we suppose further that I had asked one of the guests with the intention of discussing some business proposition, and the other for purely social reasons, then, as the law stands, I should almost certainly be liable to the former but not to the latter. I do not think anyone would consider this result logical or satisfactory.
Moreover, not only has the classification of visitors become rigid and unsatisfactory, but the definition of the duties owed to them has also become inappropriate and confusing. It is usually said that an occupier owes towards visitors who are classified as invitees a duty to prevent unusual dangers of which he, the occupier, knows or ought to know, whereas towards visitors classified as licensees he owes only a duty to take reasonable care to prevent injury from concealed dangers or traps actually known to him. The distinction between an unusual danger and a concealed danger or trap is a fine one, and your Lordships will readily see that it leads to uncertainty in the law. Nor is the distinction between dangers which ought to be known and those actually known as clear as might appear at first sight, because there are decisions to the effect that knowledge of a defective condition of premises, even where that knowledge is unaccompanied by any realisation of danger resulting from the condition, is 258 to be considered actual knowledge of the danger.
My Lords, it would be easy to multiply examples of the unsatisfactory nature of the present law, but I think the House will agree, after the few illustrations I have given, that there is a need for reform. The Bill, then, will replace the existing duties by a common duty owed by an occupier of land or property to all his lawful visitors, and that duty, as provided in Clause 2 of the Bill, will be a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there. In the absence of special terms made by agreement, there will thus be only one standard of care owed by an occupier to his visitors, and that standard will be the care which one would expect from a reasonable man.
I have already mentioned that the Bill also deals with the liability of a landlord to persons injured on the premises of his tenant. At present the remedy of a visitor for dangers resulting from defects in the premises lies only against the occupier. Although as between the occupier and his landlord, the landlord may bear responsibility for the state of the premises, the injured visitor has no right of recourse against him. In the result, an injured person who cannot sue the tenant, for instance because she is the tenant's wife, is deprived of a remedy; and where the visitor has his remedy against the tenant, the tenant will recoup himself by suing the landlord, and there is needless circuity of action.
The effect of Clause 4 will be to place a landlord who is responsible to his tenant for the maintenance or repair of the premises and has failed to carry out his obligations in the same position vis-à-vis visitors to the premises as if he were himself in occupation. In this way the Bill remedies an anomaly which has resulted from a line of decisions dating back to 1906, and which has long given offence to most lawyers practising in this branch of the law.
My Lords, I have tried briefly to explain the shortcomings of our present law on the liability of occupiers—its inflexibility, its complexity and, in some respects, its uncertainty. Inflexibility and refinements may bring about hard 259 cases and injustice, even where the law is not fundamentally unsound, for an injured person may have all the merit on his side and yet be unable to bring himself within a rigid and narrow classification. Uncertainty in the law tends to multiply litigation—which in itself is often a hardship to all the persons concerned—or to discourage injured persons from seeking redress which is properly theirs. The object of this Bill will be to make a limited but undoubtedly important part of our law less rigid and to remove from it some of the complexities and uncertainties with which it has become overlaid. It will codify the law in a way which accords more fully with the needs of the present time.
I hope that your Lordships will welcome this Bill and, by welcoming it, encourage the constant examination and review of our law, to make it clear that your Lordships believe that the law is something whose roots are deep in the past but whose branches are always burgeoning to give greater and better shelter to the present. My Lords, I beg to move that the Bill be now read a second time.
§ Moved, That the Bill be now read 2a.—(The Lord Chancellor.)
§ 3.27 p.m.
§ LORD MILNER OF LEEDS
My Lords, as the noble and learned Viscount has told the House, this Bill came before us something like a year ago and was approved on Second Reading by all Parties. It has since been reintroduced and, I think, has passed through all its stages in another place without amendment. The noble and learned Viscount has briefly, in his usual clear fashion set out the principal points of the Bill, and I think it would be a matter of supererogation if I were to repeat all or anything that he has said. Of course, the principal point of the Bill is that it does away with all previous distinctions between invitee and licensee which undoubtedly resulted in great confusion and frequently in considerable hardship to injured persons, and sets up what the noble and learned Viscount terms a uniform or common standard of care which is to be borne by occupiers, and in certain instances by landlords, to all persons lawfully coming upon the premises. I am sure your Lordships will agree, therefore, that the Bill appears to clarify and improve the existing law.
260 I do not propose to go into the details of the Bill which has been so clearly explained by the noble and learned Viscount, but there is one question which has troubled a good many of us and which troubled many Members in another place. I should wish to make some reference to that matter, and to inquire whether it is not possible to see some provision made in the Bill to cover it. The point relates to the position of children who trespass on land and, in so doing, suffer injury. As your Lordships are aware, under the old Common Law trespassers could not recover damages for injury: no duty was there owed by a landlord or occupier to a trespasser. The courts have endeavoured to mitigate that view of the law by finding in appropriate cases, particularly cases involving children, evidence of licence, either expressed or implied or of tacit acquiescence which might amount to an implied licence and in some cases evidence of allurement of children—that is to say, their attraction by some object on the land—and thereby have been able to throw a special responsibility upon the occupier or landlord of the premises in question.
There have, however, been a great many border-line cases, and little children still continue to be injured, frequently very seriously. Where there is no evidence of allurement satisfactory to the court, those children cannot recover damages. If no alteration is made in this respect, that position will continue. There is much property which in some particular is, or may be, dangerous to children, and under the present law occupiers of such property are freed from liability and are not held responsible for injury to children who, from the very nature of things, play on the property. I am bound to tell your Lordships that the Law Reform Committee considered this matter and recommended, by a majority, that there should be no change in the existing law; but I do not think any of us can be very happy to leave the case there.
The matter is, of course, a difficult one. The Law Reform Committee expressed the difficulty in these words:The difficulty here is to evolve an exception in favour of child trespassers which would in practice give them any substantial degree of protection without imposing too heavy a burden upon occupiers of land used for perfectly legitimate purposes.261 That, of course, is the difficulty in making any alteration in the law. Nevertheless, I would submit that there is a great deal of difference between accidents of this kind involving adults and those involving children. An adult may well know and appreciate that he is a trespasser, whereas a child of tender years does not, and in the very nature of things cannot, appreciate that fact. In Clause 2 (3) (a) of the Bill it is recognised that an occupier must be prepared for children to be less careful than adults; but that does not deal with the case of a child who is trespassing.
None of us would wish to put an unfair and what in some cases might be an impossible burden on occupiers to take steps to keep children away from every possible danger, but I would invite the House, and particuarly the noble and learned Viscount on the Woolsack, to consider whether it might not be practicable to take a middle line and say that where an occupier has property of such a nature that it is both a danger and a temptation to children, he shall be responsible if he does not take reasonable steps to protect children, or at least to prevent them from entering the land on which the danger exists; and that in such cases children suffering damage might be enabled to recover compensation, notwithstanding that they were trespassing. Admittedly, such a clause would have to be very carefully drafted, and it is difficult to know how it would work out in practice; but I feel that some effort might be made to meet this very serious question.
If some clause of the nature I have indicated could be inserted in the Bill, it would amount merely to an extension of the principle of allurement, and to that extent would merely continue or extend the present tendency of the courts. In the absence of any such provision, it would appear not only that children will continue to be injured and deprived of compensation but also that occupiers will have no reason for taking care to see that there is no real danger to children. If some insertion such as I have indicated could be made in the Bill, there would be a motive for occupiers of land to take all reasonable steps to prevent children from entering upon land and conceivably being injured thereby. Subject to that point, to which I hope consideration will be given, we 262 on this side of the House approve of the Bill and hope that it may soon pass into law.
§ 3.37 p.m.
§ LORD REID
My Lords, as I was not in this country on the last occasion when these matters came before the House, perhaps I may be permitted to say a few words of welcome now and to concur in the tributes that have been paid to the Law Reform Committee. May I say, in passing, that another Report to very much the same effect has been made by the corresponding Scottish Committee, and I hope very much that we may look forward at an early date to the introduction in Parliament of a corresponding Scottish Bill.
I do not intend to deal with the contents of this Bill in any detail. The Bill is as well drafted as it is humanly possible to have it, but it is in the nature of things that any formulation into law, whether in the form of an Act of Parliament or in any other form, cannot be expected to give a clear solution of every problem that may arise in the future in this extremely varied field. I should not be surprised if, in a very few years' time, questions about the interpretation of this Act of Parliament came before your Lordships sitting in a Judicial capacity. Therefore I think it would be unwise for me, who take part in those matters, to make any comment upon the detailed proposals of the Bill. But one thing I feel I may be allowed to say—and I say it entirely as my own opinion. To my mind, the Bill to a large extent restores the Common Law against certain unfortunate decisions which have been given in the last half century or so, and the reason why it is necessary for this House now to deal with those matters is the existence of the rule whereby the House, sitting in a Judicial capacity, has no power to re-examine past decisions of the House.
There are in the Commonwealth a number of courts which have the power to re-examine their past decisions, sometimes by convening a larger Bench for that purpose. I would only instance the Court of Session in Scotland, with which I am most familiar. I have never noticed any ill-effects from the fact that the Court has that power; nor do I think anyone could say that there has been any tendency to use it too freely. Of course, the justification for the present rule is 263 that it is supposed to lead to certainty in the law—a most desirable thing, if one can achieve it. But a good deal could be said to the effect that it has exactly the contrary effect. There is, indeed, some evidence of that in the Report of the Law Reform Committee. Possibly the classical example is that of the law of Workmen's Compensation, and it would hardly be too much to say, with regard to that branch of the law, that as decisions became more numerous, so the law became more uncertain.
This is not an occasion to develop this theme, but I felt that it might be appropriate to point out that the reforms which this Bill sets out to achieve are due not to any defect in the present generation of lawyers but to the way in which this House, in its Judicial capacity, is hampered by not being able to re-examine decisions given by our predecessors in entirely different circumstances. To my mind, this Bill will achieve very desirable, indeed one might almost say overdue, reforms. Therefore, as a lawyer I welcome it.
§ 3.42 p.m.
§ LORD DYNEVOR
My Lords, if I may be allowed, I should like for a brief moment to return to the point made by the noble Lord, Lord Milner of Leeds, with regard to the question of trespass by children on property. I regret to say that I have not followed this Bill very closely in its passage, but I have learned a little while listening to the debate to-day. The question of children trespassing is a very difficult one for owners of property. There are various categories of property on which children can trespass. No-one would wish them to come to any harm, but the prospect relating to the responsibility of owners which Lord Milner of Leeds has opened up might be regarded as almost frightening to such owners.
There are two categories of property which come particularly to mind. One is the bomb-damaged site in London—and, of course, it is always difficult to keep children out of such places—and the other is old ruins. I speak here not only with some experience but with some feeling, because I myself have taken considerable trouble to stop children from trespassing into old ruins, even going so far as to put up barbed wire to prevent 264 them getting in and crawling about on ancient ramparts, a fall from which would probably be fatal. But even that does not prevent them from getting in. Everyone realises that if a child is told not to go into a place, the first thing that he or she naturally wants to do is to go into that place. I should feel a little aggrieved if, after all the precautions I have taken, some injury were to befall a child and I were to be made liable in damages. I should not, of course, wish a child any injury, but I feel that the two instances I have given show the difficulty which the law can come up against with respect to compensation for occurrences over which the owner of the property can have no control.
§ 3.45 p.m.
§ EARL JOWITT
My Lords, perhaps it would not be inappropriate if I were to add my blessing to the Bill, and also my congratulations and a measure of thanks which I am sure we all owe the Law Reform Committee for the great amount of very careful work which they have put in. I was greatly impressed with the wisdom of the words of the noble and learned Lord, Lord Reid, because I know something of the difficulties that we in this House experience when sitting in a Judicial capacity. I would add only one other word about the other point—it may be outside the scope of this Bill altogether, for it is a Bill which deals really with people who are lawfully upon premises. But I think this problem of trespassers, particularly children, is an exceedingly difficult one.
The first case I ever argued in the House of Lords, when I was at the Bar (it was the only case which I ever had the honour of arguing before Lord Halsbury—I am afraid that shows how old I am getting), was a case of a trespasser. It related to a field in Durham. Miners had been in the habit of walking across this field to a station. There was no right of way; they had no right to go across the field, but it afforded a short cut to the station. The owner and occupier knew of this practice; he knew that the miners had for many years been in the habit of using that short cut. He had put up all sorts of notices—" Trespassers will be prosecuted "and all the rest of it. But that was all he had done. Then he put into the field a stallion, which was a savage animal. It was not that he put 265 it in with the deliberate intention of injuring anyone. Had he done so it would have been an easy case. But the stallion was in the field, and a miner, following his usual practice, used the short cut in order to go to the station. The stallion savaged him, and in consequence he suffered terrible injuries to one of his arms. I remember, as a young advocate, handing pictures showing the state of his arm to their Lordships who were sitting here. They were greatly impressed by the photographs, and I realised, having done that, that my case was almost won—indeed, it was won.
I think that the courts which have dealt with cases of this sort have been very ready to find licence. In the case which I have mentioned, the miners had been using this field as though it were a light of way, and the House came to the conclusion that the occupier had authorised them to go across it, even though he had put up a notice saying "Trespassers will be prosecuted". And I have no doubt that justice was done. The miner recovered damages for the loss of his arm, though he certainly was not using a right of way. The courts do imply a kind of licence in such cases.
With regard to other cases, especially those in which children are concerned—a class of case with which the Lord Chancellor and I are both very familiar—an obvious illustration which springs to one's mind is that of a roundabout. Those of your Lordships who are so fortunate as to have to do with children will realise that nothing is more certain than that a child will try to clamber on to a roundabout—you can put your wad of dollars on that—if it is in a place where children are about. Consequently, the law has evolved this principle of what I think is called allurement or enticement, and if you put up something which constitutes an enticement to children you must realise that children will go there, and you must take all reasonable steps to see that they are not injured in so doing. That is a sound principle. It would not be right that a man should be able to say: "After all, the roundabout was on my own land; there was no right of way; and that is that". That is not good law.
§ LORD DYNEVOR
Does the noble and learned Earl refer to a roundabout which has a musical instrument in it?
§ EARL JOWITT
I mean a roundabout with horses and some form of an organ which plays music. That is the sort of illustration I have in mind.
Then, again, the other day I came across a case in which a railway company had a railway line running through some land. There was no right of way, but there was an embankment. It was a sharp embankment, an ideal place to slide down. Children had been sliding down it, and the railway company knew that children had been so sliding, though, of course, they had no right of way: they had no right to slide down the embankment. A notice saying, "Trespassers will be prosecuted" might have been put up, but children would still have continued to slide down that embankment. As I understood it (I am afraid that I have not considered this point very carefully before), the proposition which Lord Milner of Leeds adumbrated was not that he would impose on the railway company, and people in a similar situation, any absolute obligation to keep children out. He did not seek to make them insurers, but he did say that they ought to take reasonable care, in view of the fact that they have something which is obviously attractive, or possibly attractive, to children, to keep children out. That may be an extension of the existing law; and if it is, I think that it is one which should be considered.
I believe that we have to hold a very difficult balance here. On the one hand, I agree with the noble Lord, Lord Dynevor, that it is hard to put on the owner of land an obligation to keep trespassers out. Trespassers ought not to go there at all. On the other hand, we are dealing here with children, who are, perhaps, in a rather different category. Children may suffer such frightful injuries that we should all desire to see, if we can, that the possible cause of such injuries is prevented. This matter may not be within the scope of this Bill—I am not sure that it is. It may be that it should be considered on some other occasion, but I strongly suspect that the noble and learned Viscount the Lord Chancellor has had occasion to think over this matter, as I have had, and that he has been rather worried about it, realising the difficulties and the necessity of holding the scales fairly between the owner of land, upon whom we do not want to place impossible and unreasonable obligations, 267 and the natural fact that children sometimes do things that they should not do.
Several times during the last holidays I found myself in sympathy with the man who advised, "Find out what the children are doing, and tell them not to." One may be pretty certain that they will be in some sort of mischief, or up some tree where they ought not to be. This Bill, as I say, may not be the proper vehicle for clarification of this question, and I should not like to delay it, because I think it is an admirable Bill. Nevertheless, I should like to think that, among his many preoccupations, the Lord Chancellor will consider this matter to see whether or not the law needs clarification, simplification or extension in the case of children, to achieve an object which, I am happy to think, is the object of all noble Lords, on whichever side of the House they sit.
§ 3.53 p.m.
§ THE LORD CHANCELLOR
My Lords, may I first express my gratitude to the noble Lords who have spoken for the welcome they have given to the Bill and for the consideration that they have given to certain difficult points which arise, at any rate in connection with problems related to the Bill. I have considered carefully the difficult question on which the noble Lord, Lord Milner of Leeds, and the noble and learned Earl, Lord Jowitt, have spoken—namely, the position of children, and it may be convenient for your Lordships, in view of the interesting and authoritative speeches we have had, if I try to expose the position as it is to-day and to adduce the arguments on either side, as I see them, and the grounds on which, I think, there are difficulties in finding a solution.
I am attracted by the third of the noble Lord's suggestions—namely, that this is a matter which should be considered on its own merits and by itself. I hope that your Lordships will not think that I am trespassing on your kindness if I take a few moments to sum up the position as I see it. The present law is as follows. If the child is lawfully on the premises, the duty owed to it is in many cases higher than that owed to an adult visitor. For example, a warning which would be adequate for adults may not be understood by children; or a danger that is obvious to adults may not be apparent 268 to children. Children may wrongfully interfere with dangerous objects on the land and thus bring harm upon themselves; and, as your Lordships have already heard, if the object is an allurement, the occupier will not be able to escape liability by pleading the child's wrongful act, as he would in the case of an adult. Broadly, as regards the duty of the occupier towards children lawfully on the premises the Bill preserves the law on this subject and makes special reference to it in Clause 2 (3) (a), as the noble Lord, Lord Milner of Leeds, pointed out.
If the child is a trespasser, the occupier owes no duty to the child except under the normal law of negligence, under which, as the noble and learned Earl pointed out, he may be liable to a trespasser for what are often conveniently called "activity dangers," and probably the noble and learned Earl's argument, in the case before Lord Halsbury might have been a little shorter if the judgment on this subject in Excelsior Wire Company v. Callan, decided in 1930, had been available to him. The test of trespass is the same for adults and children, and the mere fact that an occupier has on his premises a dangerous object alluring to children does not in itself make him liable to a trespassing child who meddles with it. But, of course, the presence of an allurement in a place where it entices children to trespass is an element which may aid the inference of an implied licence.
The arguments for improving the status of an infant trespasser can be summarised as follows. The first, with which we all agree, is that society has a special interest in the welfare of children. The second is that children of tender age are in need of special protection because they do not appreciate dangers. On that aspect of the matter, the noble Lords who have spoken possibly have in mind certain statements of the courts in the United States, which are very relevant to it. The third is that the occupier who controls the state of the premises has a moral duty to see that persons whose presence on his land it is reasonable to anticipate do not come to harm. It could be argued that it is not relevant to this duty whether a visitor comes lawfully or as a trespasser and that, as foreseeability is the test, the duty would be owed more particularly to 269 children who trespass readily and unwittingly. The fourth argument is that a licence to an infant should be inferred more readily from the mere fact of an infant's presence on the premises and the occupier's knowledge of his presence there.
I have tried to put dispassionately and fairly the arguments on one side. The arguments on the other side, I think, may be expressed in this way. First, society's interest in the welfare of children must be balanced against society's other interest: that the occupiers of property should be free within reasonable limits, to use their property without having regard to people who come on it unlawfully. Secondly—and here I quote the argument from a textbook, Salmond on Torts, which is well-known to my noble and learned friends who have spoken in this vein:In the long run, the humanitarian impulse which seeks to impose the duty to protect children on occupiers rather than on the children's parents or guardians may do more harm than good.A great judge, Lord Justice Scrutton, quoted with approval this passage in Salmond:The duty of preventing babies from trespassing on a railway line should lie upon their parents and not upon the railway company.The third argument is the difficulty of effectively excluding children from dangerous premises. That is very great indeed. As the Law Reform Committee said, in paragraph 80 of their Report:Adults can be warned off or kept out. Children ignore warning notices, even if they can read them, break through or climb over fences, and having done so, heedlessly involve themselves in any danger, however obvious, the premises may afford.To impose a positive duty on occupiers to keep out children would be to place a premium on disobedience. The more children ignore warnings and flout obstacles placed in their way, the greater the occupier's duty to exclude them would become.
The fourth argument is that if special protection were to be afforded to infant trespassers, it would be necessary to fix an age limit and any age limit would ex hypothesi be arbitrary. Fifthly, if reasonable anticipation of the likelihood of entry is to be the test, it is impossible in logic to distinguish between lawful and unlawful visitors. There are attractions in imposing a duty towards all-comers 270 on this basis, but a change of the law in this direction might have far-reaching and unforeseen consequences. Much would depend on the extent to which the courts would expect occupiers to anticipate the visits of trespassers, and on the extent to which they decided it was reasonable for the occupiers to take any positive steps, other than perhaps warning of potential dangers, to make the premises safe. I think it must be realised that greater burdens would undoubtedly fall upon the occupiers, and that they might well become intolerable.
Then one adds to the other arguments the finding of the Committee in paragraph 80—and I think as we are considering this point it would be right to read the whole paragraph—who say:So far as adult trespassers are concerned, we think the law is satisfactory, and we do not recommend any change. It has been suggested that the decision in Edwards' case may bear harshly upon child trespassers in cases which, on this view, common humanity demands that they should not be left without a remedy. The difficulty here is to evolve an exception in favour of child trespassers which would in practice give them any substantial degree of protection without imposing too heavy a burden upon occupiers of land used for perfectly legitimate purposes. Uses involving no danger to any rational adult may be fraught with peril to children. Adults can be warned off or kept out. Children ignore warning notices, even if they can read them, break through or climb over fences, and having done so, heedlessly involve themselves in any danger, however obvious, the premises may afford. The majority of us are therefore satisfied that, as in the case of adult trespassers, no change should be made in the existing law. We would perhaps add that this does not apply any disapproval of the decision in the case of Lynch v. Nurdin.In that state of the arguments either way, I agree with the suggestion of the noble and learned Earl, Lord Jowitt: that it would be unfortunate in this Bill, against the background that we have, to introduce this new aspect of the matter; and I believe that it would be wrong to do it without consideration focused on this point. However, I will certainly give the noble and learned Earl the undertaking that I will give further attention to it. I have occupied this portion of your Lordships' time to-day in the desire that those of your Lordships who are interested in the subject might care to write to me, at your leisure, giving your views on the relevant weight of the different arguments. That is why I have given all the arguments, whether the 271 strength of some of them commends itself to me or not. I think that is the best way to leave this difficult point. I am grateful to all noble Lords who have mentioned it. If I may add one personal word, as an ex-Minister for Welsh Affairs, and on my own behalf, I have the happiest memories of going over the ruins in Lord Dynevor's property, to which he referred, and I hope that they will stand for as many centuries as they have stood already, and without accident to anyone at all.
I will now pass to the most interesting point raised by my noble and learned friend Lord Reid. First, however, I would say this: I think this is the first opportunity your Lordships have had of welcoming my noble and learned friend back to your Lordships' House after the distinguished services which he rendered to his country by his work on the Constitution of Malaya. I am sure that all your Lordships would like me to express not only your welcome to Lord Reid on his return, but your congratulations to him on the work he has done. My noble and learned friend raised the question of the Scottish Report. On this all I want to say is that I have consulted my right honourable friend the Lord Advocate on this point, and he is considering the Report. However, as my noble and learned friend will realise, it has only recently been published, and sufficient time has not yet elapsed to enable public and professional reactions to it to emerge and be weighed up. As Lord Reid, above all people, will realise, not only does the Scottish law in its origins differ from the English, but the Committee expressly say that they desire a separate Bill for Scotland. From his past experience as a Scottish Law Officer, my noble and learned friend Lord Reid knows the difficulties that result from attempting legislation in a matter of this sort—involving the Common Law of Scotland—by a Scottish Application Clause. It is a matter which is much more suitable for a separate Bill and, as I said, my right honourable friend the Lord Advocate is considering the point.
My noble and learned friend Lord Reid made some interesting suggestions, when he said (and I do not think his assumption of the mantle of Elijah was in any way unjustified) that we should probably find that this Bill had to be considered 272 by the Courts, and even by your Lordships' House in its Judicial capacity. But I think he will agree that it does make a considerable advance in the law—indeed, he said that. He would not expect me, on this Bill, to go into the wider question of whether your Lordships' House, in its Judicial capacity, ought to be bound by previous decisions. I hope that he will not regard it as undue levity on the part of a colleague if I remind him that although the House of Lords, sitting Judicially, cannot reverse its own earlier decisions, it can distinguish them, and has done so on innumerable occasions in the legal field.
I hope that I have dealt with the points, which are very important points and should be dealt with at much greater length. But your Lordships have already been kind over the amount of time you have allowed me to allocate to myself, and I hope that I have examined the points sufficiently for your Lordships now to give this Bill a Second Reading.
§ On Question, Bill read 2a, and committed to a Committee of the Whole House.