§ 2.40 p.m.
§ Order of the Day for the Second Reading read.
§ THE MINISTER OE STATE, SCOTTISH OFFICE (LORD FORBES)
My Lords, this is a short Bill effecting a much-needed reform in a difficult branch of the law. It is what I think may be described as "lawyers' law" and, as such, it is extremely frightening to a layman like myself. Since I am not a lawyer myself your Lordships will forgive me if I set out, I hope quite simply (in both senses of the word), the position in broad terms.
The Bill gives effect to the First Report of the Law Reform Committee for Scotland, and before going on to describe its provisions I should like to pay a tribute to the work of this Committee, appointed by the Lord Advocate, which has as its Chairman the Honourable Lord Walker and includes eminent members of both branches of the legal profession in Scotland. The Committee has produced several Reports, of which one has already been given statutory effect by the Interest on Damages (Scotland) Act, 1958, and we are very grateful for the work which it is doing in examining various branches of the law of Scotland where difficulties have arisen. In this case the Scottish Committee had the benefit of studying a Report already published by the English Law Reform Committee on the corresponding branch of the law of England and Wales. That Report was later given effect by the Occupiers' Liability Act, 1957.
The Bill before your Lordships deals with two related but distinct matters. The first is the standard of care which is 1157 owed by an occupier to persons entering his premises, to secure that they do not come to any injury as a result of the state of the premises or of anything done on them for which the occupier is in law responsible as occupier. This is dealt with in Clauses 1 and 2. It may help if I go briefly into the history of this matter. Under the law of England and Wales as it stood for many years before the passing of the 1957 Act, the standard of care required of an occupier towards a person entering his premises depended on whether that person was an "invitee", a "licensee" or a "trespasser". The standard of care was, of course, highest towards invitees and lowest towards trespassers. As time went on these three categories became more and more rigidly defined, with the result that a considerable measure of artificiality was introduced into the law regarding the obligations of an occupier towards his visitors. For example, of two persons entering a house for a dinner party one might be an invitee having been invited to discuss mutual business with his host, and the other a licensee, he being there purely for social reasons. Now each of those on entering the house would be entitled to a different standard of care from his host, depending on the object with which the host had invited them and the category into which accordingly they fell.
The law of Scotland originally did not have regard to these categories, but held that the question whether an occupier had been neglectful in regard to the safety of persons entering his premises depended on the circumstances of the particular case. However, in 1929 a decision of your Lordships' House reversing one of the Court of Session, superimposed on Scots law as it then stood the doctrine of the categories.
It was recognised on both sides of the Border that this doctrine gave rise to anomalies, and the English Law Reform Committee recommended that the categories of invitee and licensee should be abolished, but did not propose to alter the position of the trespasser. These recommendations were given effect by the English Act of 1957 which I have already mentioned.
Now the Scottish Committee went further. They unanimously recommended that the categories of invitee and licensee should be abolished; and, 1158 furthermore, a majority of them recommended that the category of trespasser should be abolished. A minority—two out of the twelve members—were of the opinion that the category of trespasser should not be abolished, and a further three considered that it should not be abolished if actions of reparation against occupiers were left open to trial by jury. The question of trial by jury in civil actions is at present being considered by a Committee under the chairmanship of the honourable Lord Strachan which has not yet reported.
This different approach by the two Committees is no doubt related to the long-standing distinction between Scots and English law in regard to trespassers. In Scots law a trespasser is not necessarily committing a civil wrong, as is the case in England when one man enters on another's land without permission. It will be seen, therefore, that in Scotland the lower standard of care due by an occupier to a trespasser, as compared with that due to an invitee or a licensee, does not arise from the consideration that the trespasser is committing a wrong against the occupier. In the words of Lord President Clydeone of the main reasons—if not the only reason—why, in the normal case, a trespasser is beyond the scope of any duty owed to him by the proprietor, is that the latter has no reason to suppose that people are invading his property behind his back.My Lords, after careful consideration Her Majesty's Government thought it right to give effect to the majority recommendation of the Law Reform Committee, irrespective of any decision which may eventually be reached as to trial by jury in civil cases.
I turn now to deal in slightly more detail with the provisions of Clauses 1 and 2. Clause 1 provides for the super-session, by the statutory provisions of Clause 2, of the existing Common Law rules determining the standard of care owed by an occupier to persons coming on the premises. The effect of this is to abolish the doctrine of the categories as well as the separate sets of rules determining the precise degree of care required to be shown for the safety of each of the different categories of visitor. In substitution for these rules, which have become increasingly involved and difficult to apply with any certainty, Clause 2 (to which I shall come in a moment) enacts a broad general rule applicable 1159 to each visitor in accordance with the circumstances attending his particular case. Here I should like to point out that the Common Law rules for determining on whom the duty of care as occupier rests are unchanged. In addition, the provisions apply to movable structures such as vessels or aircraft and to property on those vessels or aircraft.
Clause 2 provides that the care which an occupier is required to show towards a person entering on his premises shall be such care as is reasonable in all the circumstances of the case. Provision is made for exceptions from the general standard of care in cases where the occupier has modified, by agreement or otherwise, his obligations toward his visitor; secondly, where the occupier owes a higher standard of care imposed by law on particular classes of person—for example, occupiers of factories; and, thirdly, where the visitor has willingly accepted risks.
Your Lordships may feel that some comment is required not only on what the clause says, but on what it does not say. It does not set out the considerations to which regard has to be paid in determining whether the occupier has shown reasonable care, and in this respect it contrasts to some extent with the English Act of 1957. By framing the clause in this way, effect is given to the recommendation of the Scottish Committee thatdetailed elaborate codification of this branch of the law of Scotland should not be attempted, but liability should be made to depend upon the broad general principle of culpa, that is, breach of the duty to take reasonable care in the circumstances of the particular case".This broad general principle is well established in Scots law, and to elaborate it by providing a series of statutory signposts designed to indicate what constitutes "reasonable care" might well have dangers with no compensating advantages.
I now come to the second subject with which the Bill deals, in Clause 3. The clause provides that where a landlord is responsible for the maintenance or repair of let premises he must show towards persons on the premises the like care in respect of dangers arising from his failure to carry out that responsibility as an occupier is required to show towards his visitors. The effect of this is 1160 to restore the law to what it was before the decision in the case of Cameron v. Young in 1908, which overthrew the former rule of Scots law that the measure of a lessor's liability to third persons coming upon the premises was to be found in the ordinary law of neglect and decided that third parties such as the family of the tenant or his visitors, not being parties to the lease, had no remedy against the lessor for injuries sustained through the defective condition of the subjects let. Clause 4 provides for the application of the Act to the Crown. I hope that your Lordships will agree that this Bill is designed to improve the law of Scotland and that your Lordships will give it an unopposed Second Reading. My Lords I beg to move.
§ Moved, That the Bill be now read 2a.—(Lord Forbes.)
§ 2.51 p.m.
§ LORD GREENHILL
My Lords, like the noble Lord, Lord Forbes, I have the comfort of knowing that I am not a lawyer and therefore can indulge, presumably, in the mistakes to which a layman is entitled. But I have done my homework, in that I have read the Bill; I have read both the Scottish and English Committees' Reports and, perhaps more important, I have read—with very great interest—the speeches made on the Second Reading of the English Act in 1957. I was very much impressed not only by the admirable statement by the noble and learned Viscount who sits on the Woolsack, but even more by the summing-up which he gave after hearing speeches by my noble friend Lord Milner of Leeds and by my late noble and learned friend Lord Jowitt.
My own interest in this Bill arises mainly from the fact that I wanted to understand its effects upon local government bodies, for they, as your Lordships know, are large owners of land and large occupiers of land. Because of their interest in such matters as public parks, houses, shops and other buildings they are constantly under the danger of having actions brought against them for neglect of their duty, both as occupiers and as landlords of properties. I am bound to say that in reading this account I have been very favourably impressed by, apparently, the consistency of opinion shown on the problems concerned in these Reports.
1161 The Scottish Committee's Report goes into this matter very fully and brings out the principle of which those of us in Scotland are most proud and that is a return to the concept of blameworthiness—or culpa, which I think is the legal expression—particularly in regard to trespassers. The injustice suffered by the Scottish legal profession as a result of the decision of the House of Lords overturning a decision in 1929 is now being remedied and the decision in the Court of Session in what I think is known as the Dumbreck case is now being accepted throughout Scottish law and in English law, too.
I should like to refer in some little detail to that particular case, because when my noble friend Lord Milner of Leeds spoke, on this matter in the debate in 1957, on the Second Reading of the English Act, he referred to what he thought was an omission at that time from the Bill then being considered, in that there was apparently little remedy suggested for injury suffered by child trespassers, as distinct from adult trespassers. The case then, as I am told, was like this. The Law Reform Committee for Scotland recalled that the classification of persons entering upon land was an import from England and dated from relatively modern times. It was in 1929, in the case of Dumbreck v. Addle & Son Limited, 1929, Scottish Cases (House of Lords), No. 51, that the House of Lords laid it down that the duty of occupiers in Scotland was to be regulated by this classification; and, as the noble Lord has mentioned, that classification into categories is the invitee, the licensee and the trespasser.
In Dumbreck v. Addie & Son Limited the Court of Session held (Lord Blackburn dissenting) in favour of the father of a four-year-old boy who had been killed by being crushed in the terminal wheel of a haulage system belonging to a colliery company which was set in motion from time to time for the purpose of depositing ashes contained in hutches on to a king. The colliery officials tried unsuccessfully to keep children out of the field. They knew that children habitually used the field as a playground. The boy's father had warned his son not to go into the field. On the occasion of the accident the colliery servants set the cable in motion without trying to find 1162 out whether anyone was in the neighbourhood.
In deciding in favour of the pursuer the Court was following the law of Scotland as it was understood and as it had only recently been reiterated in the case of Shillinglaw v. J. G. and R. Turner. In that case Lord Clyde had said:Most of those duties (whereof the breach constitutes negligence) arise simply out of the relation into which the complexities of social life bring the defender with the pursuer. Those relations are infinitely various"—"infinitely various" is, I think, a very fine expression—and in Scotland we have been slow and unwilling to classify and categorise them.The Court felt that the crux of the case was whether, in view of the dangerous character of the wheel when set in motion, and the circumstances in which the boy was present when it was set in motion, the colliery company owed any duty to him to prevent an accident. It was held that the wheel was dangerous, though not obviously so, when at rest, and that the colliery officials, knowing that trespassers were in the habit of being around the wheel, had a duty to take steps to avoid an accident. The House of Lords, however, on appeal, held that since the child was a trespasser no such duty was owed to him, and that there was no reckless disregard of his safety equivalent to wilful harm.
That case, my Lords, shows, I think the recognition by the Scottish Judges of the fact that a different attitude has to be adopted in the case of children too young to read notices—too disobedient, if you like, to take notice of what grownups tell them about the danger of the places in which they find themselves. And, as one would expect, the Scottish Court recognised that fact. It is not my province, or indeed my duty, to refer to the 1957 Act, but one would like to think that a similar kind of attitude was adopted in that Act.
The other point which occurs to me, is this. It is true, as the noble Lord, Lord Forbes, said, that the Scottish Law Reform Committee, by a majority, decided to abolish the category of trespasser; and the reason for that, as is well known, is that "trespass" in Scotland is not a civil wrong as it is in England. Therefore, it is treated somewhat differently in Scotland. But, speaking as a layman I would say that the 1163 mere fact that, even in Scotland, the Scottish Law Reform Committee were unable to come to a unanimous decision upon these points suggests an element of uncertainty; and if there is one thing that one likes to believe the law stands for it is certainty in its findings. If it does so, it commands greater obedience than would be the case if there were not certainty.
My Lords, having rambled on in this way, and again emphasising that I speak purely as a layman, I am bound to say that it seems to me that we have made an advance in promoting this piece of legislation. One hopes that the effect of this will be that, where injury is suffered, those injured will receive reparation, and that those who neglect their duty in that respect will be made to pay for their lack of care. The only question which now occurs to me is what the effect is going to be in the immediate future, until such time as the law becomes crystallised under this new Act: whether there will be an increase of litigation by people who want to test the effects of the new Act, or whether we shall now be satisfied that the law is clear enough not to arouse any kind of doubt about its operation. I have much pleasure in supporting this Bill.
§ 3.1 p.m.
§ LORD REID
My Lords, this is, I think, a Bill of considerable importance, because not only does it affect the duty of all occupiers of land, but it affects the rights of all who enter upon other people's land for any reason at all—and that includes every one of us. Perhaps for a few minutes I might explain why, in my view, the Bill is necessary. In Scotland, the tendency has always been to take a broad view of questions of this kind—injury to people owing to the fault of others—and to look at the whole circumstances of the case; and then, having done that, to ask the apparently simple question: was the occupier at fault? To put it a little more definitely, the question is: did the occupier fail to do something which a reasonable man in his shoes would have done for the protection of his visitors? Did he fail to get rid of some danger which it would have been reasonable for him to remove; or did he fail to give the incomer 1164 some notice or assistance so that he might avoid dangers which were irremovable?
On a general issue of that kind there is the disadvantage, to which the noble Lord, Lord Greenhill, has referred, that different minds may reach different conclusions on the same facts; and the law, very properly, always endeavours to reach as much certainty as the case permits, for this very simple reason: that it is very much in the public interest that those who advise people who may have claims, or who may resist claims, should be able to forecast what will happen if the case is taken to court. I think the main reason for promoting certainty in the law is to enable advisers to give confident advice and therefore avoid litigation. In the search for certainty, the English law has, I think, pursued a somewhat different course from that pursued by Scottish law. There were laid down rules, or categories, to which the noble Lord, Lord Forbes, referred, with the most laudable intention of making the law certain. But experience has shown that, although you can do that when circumstances of various cases do not vary very widely, you do not achieve your object if you seek to do that where circumstances vary infinitely, as they do in cases of this character. The inevitable result was that the rules became too complicated, and it was perhaps more difficult to forecast what would happen under these complicated rules than to forecast what would happen if you asked a perfectly simple straightforward question.
I agree with my predecessors to this extent: that I think it is desirable that in a matter of this kind the law on the two sides of the Border should, in large measure, be the same: we should like to pursue the same path so far as possible. There always has been, however, considerable reluctance in Scotland in accepting the English point of view, and this has been shown in the Dumbreck case, in particular. In that case this House, sitting judicially, adopted the English point of view for Scotland; and however much Scotsmen may have disliked that decision, they have followed it. I cannot help thinking—I have said this before, and I say it again—that one of the reasons why we have to trouble this House, sitting in its legislative capacity, 1165 with Bills of this kind is that the practice of this House, sitting in its judicial capacity, is that it will not review past decisions. I cannot help thinking that the time is rapidly approaching when that practice ought to be modified. If it were modified, I cannot help thinking that a number of these difficult, old decisions could be removed without recourse to the procedure of Bill and Act of Parliament. However, that is by the way. As the practice of this House stands at the present, the only way of retracing our steps is to come to the House, sitting as a legislative body, and seek assent to a Bill to alter past decisions of this House sitting in its judicial capacity.
I must not give the impression that dissatisfaction with these decisions was confined to Scotland; it certainly was not: because strong Committees of lawyers were appointed in both countries to review the whole subject. In fact, the English Committee reported first, in a most elaborate Report, which, I think, gained general acceptance and was followed by the English Act. As has been pointed out, the recommendations of both Committees, apart from this one matter of trespassers, were almost identical. I might perhaps repeat the words in the Report of the Scottish Committee, where they characterised the existing law as consisting of "narrow, rigid arid ambiguous distinctions"—perhaps slightly picturesque language, but not a wholly unfair picture of the position which this Bill seeks to alter.
The English Act was passed two years ago, and at first sight one wondered why there should be this gap. However, I think the answer is plain, and I certainly do not complain of the delay. The drafting of this Bill is quite different. It is simpler and, I would say, preferable, though no doubt others may think differently. But I do not think that we have lost the time that has elapsed, because I believe that we have a better Bill than we might have had if the matter had been rushed. I do not pretend to foresee what the result will be of either this Bill or the English Act. I hope that the noble Lord, Lord Greenhill, is right in his hope—or his guess, it may be—that it will lead to greater certainty. I am not sure, but I certainly think that it is likely to lead to greater justice, because 1166 it seems to me that getting rid of existing distinctions will open the door to a more just solution, if not a more satisfactory solution, of the problems that are coming up before the courts. Indeed, I do not think it would be altogether wrong to characterise this Bill as a Bill to restore the Common Law of Scotland, rather than as a Bill to amend or abolish it. I think that, with this Bill, the Scottish Courts ought to be able to reach a wholly satisfactory result, apart from one point to which I will come in a moment.
The heart of the Bill is undoubtedly Clause 2, and in so far as it deals with people whom an occupier has invited or permitted to come on his land, or to whose presence he has acquiesced, I think there will be general agreement that it is proper than there should be put on the occupier a duty to do everything reasonable to protect the incoming person. I am not sure that Clause 2 is properly worded. It reads that the duty of the occupier shall be to takesuch care as in all the circumstances of the case is reasonable to secure that that person"—that is, the visitor—will not suffer injury or damage by reason of any such danger."Secure" seems to me to be a rather strong word in the context, although I am bound to say that I have not yet been able to think of another word which seems to me wholly satisfactory. It may he that we may consider that and other points before Committee stage.
I also welcome Clause 3, which the noble Lord, Lord Forbes, has explained. It gets rid of a technical distinction. The Scottish case which established the distinction in Scotland has been referred to, but the earlier English case, which started the trouble, has not. I think that this is eminently a case where lawyers might have put right what were technical distinctions, but which have proved to be unfortunate, even fifty years ago. There really is no sense in the distinction that a landlord is liable to pay damages if his tenant sustains injury by reason of disrepair but is not liable if a tenant's wife sustains injury; and it is that kind of distinction that this Bill is intended to get rid of.
Now I come to the point about which I have a little more difficulty. If a landlord or occupier acquiesces in the presence of intruders—I will not use the 1167 word "trespassers", because that is perhaps more appropriate in England—then he ought to take some care about them; but what causes me a little difficulty is the case where he does his best to keep them off his land. They may be adults, or they may be children. Not only do people disregard notices, and climb over locked gates and break through fences, but children keep poking their way in wherever they can. If an occupier really does his best to keep them out, but fails, ought he to be subjected to a positive duty to take some measure of care for their safety or not? I do not object to the reversal in the Dumbreck case, because that was a case of negligence directly causing the accident. The real trouble arises if there is, say, a rotten tree or a decaying bridge likely to give way, and the occupier knows that intruders, be they adult or children, are in the habit of going that way. Should the occupier have an obligation to put these things right or not?
I do not hold any very strong views, and under the Bill it is left to the tribunal hearing the case to decide whether it would have been reasonable for the occupier, say, to lop the tree or to repair or fence off the bridge. Whether that is a good thing or not, I am bound to say I am rather doubtful. It is true that occupiers are probably protected by insurance, and it may be true that in a great many cases the court would say that in such a case the occupier had tried to keep people out and that it would not be fair to put this burden on him. I do not know whether or not that would be said; and I feel that this is rather a leap in the dark in this matter.
I should be much happier if I thought that these cases would be tried by a Judge and not by a jury. Your Lordships will no doubt be aware that in Scotland these personal accident cases are tried by jury. I have no objection to juries; but if in the original stages a Judge tries these cases, he will give his reasons, which can be examined by the Inner House of the Court of Session, or it may be in your Lordships' House, and some measure of uniformity in outlook will develop. But if a jury try these cases, they do not give reasons and nobody will know why they give their decisions; nor will there be any possibility 1168 of introducing some measure of uniformity into their decisions. Therefore, I should be much happier about this new departure if I felt that it was being conducted by Judges who would give their reasons and therefore that there would be some means of keeping track (if I may use the vulgarism) of the way the law is developing.
Subject to that point, my Lords, I entirely welcome the Bill. I believe that the people of Scotland will welcome it; I am sure that the legal profession in Scotland will. There are one or two other minor points of drafting which no doubt may be discussed on Amendments at the Committee stage, but I do not think that there is any other broad general point on which there is likely to be any division of opinion at all, and therefore, I wholly support the Motion for the Second Reading of the Bill.
§ 3.18 p.m.
VISCOUNT COLVILLE OF CULROSS
My Lords, I am well aware that I am not a great expert on Scottish law, but I wonder whether, with the greatest respect, I may disagree with the noble and learned Lord who has just sat down, because I have two points which have caused certain anxiety in Scotland, and which may result in misunderstandings. I feel that I should raise them in your Lordships' House this afternoon in the hope that they may be cleared up, either to-day or on Committee.
They concern Clause 3 of the Bill, under which a landlord who is under an obligation to maintain and repair is put under a liability for injuries resulting from defects in subjects for which he is responsible. I note that the Bill lays upon him responsibility to take such care as is reasonable in the circumstances. I have looked this point up in the books and discover that the basic precept of Scottish law in such a case is that the landlord must receive notice of the defect before he becomes liable, because culpa is the basis of the delict. None the less, I feel that there may be a case for putting in this clause that where this liability rests upon a landlord, there should also rest upon the tenant the responsibility of informing the landlord of any defects of which he knows.
As this Bill stands, and as common sense dictates, the first person that the injured man would choose to sue would 1169 be the landlord. He would be the person who would probably have the money to pay; and the Bill directly invites the man, if the landlord has the liability to maintain and repair, to sue him. If the landlord did not know of the defect, if it had not come to his notice and he had not had a chance of finding out about it, I do not see how the injured man could possibly succeed. He would then be left to sue the tenant, and the tenant would say: "But this is not my responsibility. The landlord has undertaken to maintain and to repair; the defect concerns him. Although it is true that I knew about it, I did not see fit to tell him, and I do not see that I have broken any duty." This may be where the misunderstanding lies. I have a feeling that it might be on such an occasion as that and on that argument that the tenant might also escape, in which case the injured man would have no recourse at all. If, therefore, we put in Clause 3 that where this particular form of tenancy arises the tenant should be under a duty to inform his landlord whenever he became aware of a defect which might become dangerous, then I think he would not be able to escape by the argument that I have just propounded; because if he knew about the defect he would have the duty to tell the landlord about it, and if he did not tell the landlord, he would have broken the duty.
I feel that it is a question of balance, because there are the three parties who are concerned. There is the landlord, who has perhaps a large estate or a great number of farms spread out over a large area and which he cannot personally supervise all the time. Suppose it were possible for the tenant to get out of liability by the argument I have mentioned, the inevitable result would be one of two things: either the courts would be bound to say, "True, the landlord did not know of it, but if he had been a good landlord he should have known of it"—in which case we should come very close to laying a strict liability on the landlord; or, alternatively, the injured man would not get any reparation. The tenant, being in the middle, of course, has his duty to perform as well. So I suggest that it might be a good thing if that duty were inserted in Clause 3.
1170 The other point is this. The clause mentions "repair and maintenance". A very common variety of farm leases in Scotland provides that the tenant should be put under an obligation to repair and to maintain, but that the landlord should be left with the obligation to renew and replace the landlord's fixtures. It is obvious that defects and injuries may result from the landlord's fixtures just as easily as from the parts of the subject which are the responsibility of the tenant. It is certainly not clear from the wording of Clause 3 whether "maintenance and repair" also includes "renewal and replacement". If it does not, I wonder whether this may not be a casus omissus in the Bill, in which case perhaps the old law, which exists up to now and which is embodied in Cameron v. Young and the other cases which have been referred to, may have to be used to fill the gap, and we shall be back in the position which, as has already been explained, is most unsatisfactory. If, however, Her Majesty's Government do intend that "maintenance and repair" shall include "renewal and replacement", why does not the clause say so?—because that is the way to make it perfectly clear.
Apart from that, I welcome the Bill and I welcome Clause 3. I am sure it is right that the dissatisfaction which has remained since the decision of Cameron v. Young should be cleared up. I also agree with the sentence in the report of the Law Reform Committee:There seems to be no valid reason why lessors who have created a source of danger by work carried out before transferring possession of the subjects (e.g., by installing a defective boiler) should not be held liable on ordinary principals of culpa for injury later caused by the danger on the premises to persons entering thereon.I am sure, therefore, that this simplification is extremely welcome. Now that the stable companion of this Bill is running in England and Wales, I feel sure that Scotland should have the benefit of a similar Bill and that we should return to the simplicity and common sense which distinguished the Scottish law on this subject before it was complicated by decisions imported from South of the Border. I beg leave to support the Bill.
§ 3.27 p.m.
§ LORD KEITH OF AVONHOLM
My Lords, like others who have preceded me, I rise to welcome this Bill. It comes into this House, as has been mentioned, almost exactly two years after the corresponding English Bill received the Royal Assent, and, as has also been mentioned, it is designed to remove some anomalies, if not injustices, in the present state of the law. It is perhaps fitting that I should refer to a short passage in the Report of the Scottish Law Reform Committee, in which they gave full credit to the Report and the labours of the English Law Reform Committee, upon which the English Bill followed. In paragraph 11, the Scottish Committee's Report says this:We refer to the full and scholarly survey set out in the English Report, and substantially adopt the statement and criticisms of the present law contained in that Report—subject, however, to the qualifications and explanations stated in the following paragraphs.The statements in the following paragraphs do not detract in any way from the main principles upon which the English Committee proceeded, except in the matter of trespass, to which my noble and learned friend Lord Reid has referred. Perhaps I should say at this stage that I do not entirely share the apprehensions of my noble and learned friend in this matter.
One of the purposes of this Bill is, of course, to return to what was the old law in Scotland before it was affected by decisions of this House sitting in its judicial capacity. I have never been aware that under the old law there was any real difficulty found in dealing with the case of trespassers coming on to a person's property. The principles are fairly well ascertained and it is clear that to trespassers there cannot arise exactly the same measure of duty that may arise to other persons coming on to an occupier's property. The Bill itself provides that the care to be exercised is:such care as in all the circumstances of the case is reasonable to secure that that person will not suffer injury or damage by reason of any such danger.Reasonable care to be exercised in the case of trespassers need not be—and I am satisfied will not be—the same care that is due to other people. The Scottish 1172 courts have always appreciated that position. They have been able adequately, I think, to deal with the matter, and I have every confidence that under the Bill, if it passes in its present form, the Scottish courts will be fully able to deal with that matter.
It is impossible to envisage all the possible circumstances which may arise in the case of trespassers. These matters will have to be dealt with as they come up, and it may be that some of them will come to this House for ultimate decision. But these are matters which, of course, we must leave to the application of this Bill if it becomes an Act, according to the terms and according to the construction and application that the court puts upon it.
There is one point which has been mentioned and which might call for some consideration. Three members of the Scottish Committee, as has been pointed out, thought that the law of trespass should be omitted from the Bill—or, at any rate, that it should not be abolished along with the other categories. They wished that question to go to a decision of a judge. I think it would be quite a simple matter—I am not prepared to say what must be done—to provide that a case of trespass should be treated as a special cause under Section 4 of the Evidence Act, 1866, which would enable the case to be decided by a judge instead of by a jury. But that is merely a small modification of the Bill as it stands. It would not affect the principle of the Bill; it would affect merely the question of the machinery by which the question of trespass should be tried by a judge rather than by a jury.
As I have said, this is no new principle in the law of Scotland. It is many years ago since the law of Scotland was altered by decisions of this House, and it is, as I happen to know well, the considered view of all legal writers in Scotland on this subject that the decisions cut across the old principles of the law of Scotland. I think that the position to-day is somewhat Gilbertian, because whereas English law was introduced into Scotland as a result of these decisions and thereafter fell to be applied in Scotland, to-day the English law enjoys what were really the old principles of the Scottish law. But Scotland to-day is still 1173 struggling with the rules and principles that were imposed upon it in the last thirty to fifty years. That position has prevailed now for two years, and I suppose it will prevail for some short time longer, but I hope it will ultimately disappear.
On that matter I would quote from the Report of the Committee where they say, in paragraph 1:… the difficulties and anomalies in the existing law regarding the matter remitted to us have resulted from the overlaying of the older law with restrictive categories of extraneous origin.I am sure that everyone in Scotland will welcome the disappearance of these "characteristics of extraneous origin".
Perhaps I should refer in a brief word to what the noble Viscount said with regard to the two points arising under Clause 3. I agree with his clear and adequate statement of what I think is the legal position: that if the tenant does not inform the landlord of defects in the house that he is occupying as tenant, the landlord will not be liable to people coming on to the demised or other leased premises. I think that that is perfectly true. To that extent, of course, the landlord is exempt from liability. Whether the person coming on to the premises will have a remedy against the tenant for dangerous defects clearly known to the tenant, of which he fails to give notice to the landlord, is a question that may have to be decided, and I am not going to say in what way it will be decided. But it is perfectly possible that a person coming on to the premises in that case might have a claim against the tenant if the tenant was negligent or remiss in giving notice to the landlord of dangers on his premises. I say that only as a possibility. I am not going to commit myself to any precise statement of what the result might be.
With regard to the agricultural leases which were referred to, of course if the tenant is liable for the repair and maintenance, then the landlord is exempt from any liability arising out of failure to maintain or repair. In the case of renewals, there again, although I should have thought the question of renewals of landlord's fixtures was a matter that arose at the end of the lease rather than during it, if there is some liability on the tenant to renew and the failure to 1174 renew is causing some dangers on the let premises, then again maybe some measure of liability may fall upon the tenant. But these are all question which will have to be decided in relation to the precise facts and circumstances of the particular case. I do not anticipate that these points to which the noble Viscount has referred are likely often to arise, and if they do I am not at all satisfied that they will pot be capable of a perfectly equitable solution if they come to the courts.
The Bill which, as I say, has been awaited in Scotland now for some two years—I do not say with impatience, but perhaps with some wonderment at the delay, although my noble and learned freind Lord Reid has given some reason why there should have beep some delay in this case—will be welcomed in Scottish legal circles, and it will also, I think, be a benefit to the public. I am very pleased to support it.
§ 3.38 p.m.
My Lords, as one who from his earliest years has been taught to admire and reverence the old Common Law of Scotland for its humanity if not to understand it, I naturally welcome any return to the old Scots Common Law such as is proposed in this Bill. But I admit that from the very first moment one question which rather disturbed me was the one brought forward by the noble and learned Lord, Lord Reid, about this question of trespassers. The kind of case that I envisage is of a farmer who, having to fulfil his duty to make up the road to his farm, seizes the three days before the harvest to quarry out gravel from the corner of the turnip field to place upon the road and repair the surface. He has no reason to suspect that anybody will go near that turnip field. But unfortunately there is a difference between the people who are invitees and people who are trespassers, which is that the invitees presumably arrive sober even if they go home drunk, whereas the trespasser may often be drunk when he comes. I envisage the case of a neighbouring farm servant who, returning home at night well filled, thinks he would like to see how Dockenhill's turnips are doing. He walks across by moonlight, falls into the hole and breaks his leg. The farmer has taken no special precautions; he never thought a man would go across a turnip 1175 field; and here he is saddled with a claim for damages. One would like to know what would happen in a case like that.
There is another point which has occurred. The noble and learned Lord, Lord Keith of Avonholm, said that all these things could be decided by the courts; he would not give a decision on them either way. I think your Lordships are entitled to know precisely the effect of the laws that we are asked to enact, and I certainly think that on the Committee stage—or now, if the noble Lord, Lord Forbes, can give us the information—we should like a little clearer enlightenment on the points raised by my noble friend Lord Colville of Culross and other noble Lords.
§ 3.41 p.m.
§ LORD FORBES
My Lords, a short time ago I really thought that the fog of law was rising, but since listening to my noble friend, Lord Saltoun, I rather think it is coming down again. I should like to thank all noble Lords who have taken part in this debate, especially those who have supported the Bill. Some useful and constructive suggestions have been made, which I will certainly look into between now and the Committee stage.
The noble Viscount, Lord Colville of Culross, took up the question of responsibility for maintenance or repair of let premises, dealt with in Clause 3, and he asks whether this includes responsibility for the renewal and replacement of fixed equipment. I think his question was ably answered by the noble and learned Lord, Lord Keith of Avonholm, but there still seems to be some doubt on it, so perhaps your Lordships will allow me to go into the matter a little further. The case is this: in general, where fixed equipment forms part of the premises, such as the boilers or the plumbing in a building, the obligation of the landlord under a lease to maintain and repair the let premises must include an obligation to maintain and repair those fixtures, and if necessary to replace or renew them if they are so defective that the premises cannot otherwise be said to be in proper maintenance and repair. In such a case, therefore, the landlord has a duty to show care in respect of such 1176 necessary replacement or renewal. Section 5 of the Agricultural Holdings (Scotland) Act, 1949, sets out the respective liabilities of landlord and tenant for fixed equipment on a farm. The landlord must put the equipment into good repair at the outset of the lease. The responsibility of maintaining it in good repair then passes to the tenant except where any item perishes from natural decay or fair wear and tear, in which case the landlord must replace it or renew it.
Take, as an example, the roof of a farmstead. If a few slates come off it is the tenant's responsibility. If the roof is in such bad repair that it requires renewal, then it is the landlord's responsibility to renew that roof. One question, how far Clause 3 of the Bill applies to the landlord of a farm, can be answered, I think, by saying that the landlord has to show care in respect of dangers arising from any failure on his part in carrying out his responsibility. He could not therefore be required to show care in respect of anything which under Section 5 of the 1949 Act is specifically stated to be the responsibility of the tenant. But the courts would probably hold that he is bound to show care in respect of his own responsibilities as defined by the section.
The other point which arises is whether the terms of Section 5 of the 1949 Act, in so far as it draws a distinction between repair and maintenance on the one hand and replacement or renewal on the other, cast doubt on the meaning of Clause 3 of the Bill. The answer to this is, No. Section 5 of the 1949 Act makes special provision for fixed agricultural equipment and does not affect the ordinary law as to what is included in a landlord's responsibility for the maintenance and repair of let premises.
My Lords, may I interrupt the noble Lord to ask him this question? He quoted the legal, statutory obligation, but, as he knows, Scotland is full of leases in which that obligation is varied very much by conventions. There are, for example, large properties where all the woodwork belongs to the tenant and not the proprietor. Does the legal obligation still hold when the convention is so different?
§ LORD FORBES
No, my Lords, in that case the lease would hold good. I am glad that the noble Lord, Lord Greenhill, pointed out that there were serious difficulties in connection with the category of trespassers, especially in the case of children. The noble and learned Lord, Lord Reid, pointed out that certainty in law is what we are all trying to achieve so as to avoid litigation as far as possible. That is one of the reasons why we have thought fit to abolish the categories. I think your Lordships will agree that it is quite unreasonable that one person on entering a shop to buy something should be classed as an invitee and another person who goes into a shop to ask the way should he classed as a licensee. In order to try to clear up these anomalies it has been thought better to abolish these categories altogether. I hope your Lordships will not expect me to go into the detailed legal argument on all the points raised. It may, however, be helpful to noble Lords if I take up some of the points and give the reasons why the Bill has been drafted as it is at present before your Lordships. This might help your Lordships to formulate ideas as to whether Amendments should be put down to the Bill on Committee stage.
The noble and learned Lord, Lord Reid, expressed some concern about the abolition of the category of trespassers, although I do not think his concern was felt quite so strongly by the noble and learned Lord, Lord Keith of Avonholm. I do not think that it is unreasonable to give to the courts, as the Bill proposes to do, the duty of deciding what kind of obligation an occupier owes to people on his premises in any particular case. Obviously the courts will have regard to the fact that an occupier cannot foresee and guard against all the dangers which might confront a person who comes on to premises, unauthorised and unexpected. Obviously they will not blame an occupier for not locking up an empty house which is in a dangerous condition if it is on a securely fenced plot of land; on the other hand, they might well decide that if the plot is not securely fenced and children are in the habit of playing on it the occupier ought to have taken measures to ensure that children could not get into the house.
1178 There are so many possible ways in which persons can be on premises without authority that the Government think it wrong in the context of Scottish law to say that in all cases the occupier owes a lower standard of responsibility to such persons than he does to others. I can well imagine that in the case of some types of property (for example, land on which there are electrified railway lines) the occupier really ought to take more care to safeguard unauthorised persons than an occupier of inherently less dangerous property ought to take to safeguard persons who are present at his request or invitation. Therefore we think that it is wrong to lay down by law different categories of persons and to prescribe the amount of care owed towards each of them by the occupier; we consider it far better that the courts should be free to make a firm decision in the light of the particular circumstances in each case. It may be that it goes against the grain to give rights to a trespasser, but we have to remember, as has already been pointed out, that "trespass" in Scotland is not of itself a civil wrong and it is therefore not right to make a distinction between the trespasser, as an ill-doer, and the law-abiding citizen.
Then the noble and learned Lord, Lord Reid, wanted to know whether all cases of trespass might be tried by judges and not left to juries. I think it is a little premature to make any remarks on that subject. At present, a Committee is studying the whole question of civil juries, and in the meantime we must assume that civil juries are capable of reaching a reasonable decision. In other words I do not think we can amend this Bill to take account of alleged deficiencies of civil juries when the whole question of civil juries in Scottish law is under consideration. If the Committee recommend that civil juries should continue, then we can have complete confidence in them; while if they do not recommend their continuance the Government will have to consider whether to abolish them by Act of Parliament.
In conclusion, may I say that the principle behind the whole Bill, which I submit is an entirely reasonable one, is that artificial rules about the standard of care owed to persons entering on 1179 property are at all costs to be avoided and that each case should be decided on its own merits. With this assurance, I hope that noble Lords who have taken part in this debate will be able to formulate their views before the Committee stage, and that your Lordships will give the Bill a Second Reading.
§ On Question, Bill read 2a, and committed to a Committee of the Whole House.