§ 4. 12 p.m.
§ Second Reading debate resumed.
§ Lord Walston
My Lords, may we now return to the somewhat smoother waters of the Occupiers' Liability Bill. I rise with considerable diffidence to speak on this subject because I can lay no claim to any form of legal expertise, certainly not to that of the distinguished legal lights, the noble and learned Lord the Lord Chancellor and the noble Lord, Lord Mishcon, who have already spoken, nor indeed to that of my noble friend Lord Foot who will be speaking later. I have, broadly speaking, only two things to say. First, I would like from these Benches to give a welcome to this Bill which goes a long way to fulfilling the purposes set out by the noble and learned Lord the Lord Chancellor in his opening remarks, and to express our approval of the aims that he has in mind.
The second point is to refer specifically to Clause 2 of the Bill. I think all of us agree that the time is overdue for increased access to the countryside. An ever-growing number of people living in urban areas want to share in some of the pleasures, some of the amenities which in the past have been reserved, in the first instance to country dwellers, but more specifically to the owners and occupiers of land. In the old days we used far too frequently to see signs on private property saying. "Keep out", "Trespassers will he prosecuted", and so on. Those signs, happily, are increasingly rare, and most of us. I think, who have the privilege of owning or occupying land welcome other people who do not own or occupy that land to come and enjoy some of its amenities, provided of course that they do not spoil it, that they do not leave litter behind or commit other acts of minor, or indeed major, vandalism. But there always is, or should be, in the back of the minds of owners and occupiers of land the question of their liability. Undoubtedly there are many such people who would like to extend the hospitality of their land to others if' only they were certain they would not be held liable for any mischance that might occur.
Perhaps I can give one personal example to your Lordships from my own experience. On my own land we have for many years put up signs in which we say that we welcome visitors, walkers and riders, so long as they fulfil certain very modest conditions. But there has always been a lurking fear in the back of my mind as to what liability we have entered into by putting up such notices. I would specifically put it to the noble and learned Lord as a, fortunately so far, hypothetical situation what the liability of a farmer would be in the following circumstances.
736 A farmer has allowed, or indeed invited, the public to enter upon his land. A young lady is riding a young horse across his land, and there happens to be a crop there which is being preyed upon by flocks of pigeons. The farmer has therefore put up a gun which goes off intermittently in order to scare the pigeons away. That gun, by mischance, goes off just as the rider is passing by. The horse shies and the rider falls, and by a further mischance falls upon a farm implement. say a harrow which has been left off the path in the field—a perfectly legitimate normal farming operation, untidy you may say but something that goes on frequently. The rider is severely damaged.
At the present time before this Bill becomes law, as I hope it will, I understand the farmer would be liable for damage to the rider. Under this present Bill, as I understand it—I repeat I am not a lawyer so my understanding of it is poor—I have a feeling that that situation would not be changed. I would be most grateful if the noble and learned Lord could tell us whether this is the case. I emphasise the fact that I am giving this as only one example out of very many that could he thought of of the sort of thing which should be overcome if one is to encourage farmers, owners and occupiers of land to extend much further than at present their willingness to allow the general public to enter upon their land.
There is a further, perhaps rather more remote, point which also has come to my mind in thinking about the liabilities of landowners. Here I must confess I am speaking with the disbenefit of hazy memory. A good many years ago I was a commissioner of Crown estates, and my recollection is that the Crown had the liability for certain ancient workings for gold in some of the Welsh hills. These were fairly deep shafts, which had become very much overgrown, and they presented a very real hazard to ramblers who were not over-careful where they explored and where they put their feet. As a result, the Crown, as a good body recognising fully its responsibility, had to go to very considerable expense in order to fence these disused shafts. But, even so, some of these fences were not maintained perhaps as well as they should have been and occasionally broke down. Is that the sort of liability which is covered by this Bill or will a liability of that kind continue, or is there any means by which, by a general notice, warnings can be given which will fulfil any obligations which the owner may have?
My only point in raising these two matters is to make certain that in this Bill those impediments which at present stand in the way of owners and occupiers of land giving freer access and inviting more people to come onto their land are, in so far as is possible, removed. Having said that, I repeat that the general principle of the Bill is one with which we are in full agreement.
§ Lord Mottistone
My Lords, in my very few remarks I must tell your Lordships that I am advised by the Confederation of British Industry and also by the National Farmers' Union.
The Bill is welcome in principle, as the noble Lord, Lord Walston, has just said, but there are some doubts about its details. In due course I expect to put down some amendments in Committee, mainly in order to clarify the meaning of certain parts of the Bill and to 737 make them more certain as protection for industrial and agricultural owners of land, who make common cause in this respect—and they do not always do that.
By way of a few examples—and I certainly do not expect my noble and learned friend the Lord Chancellor to give the answers now—I shall put the sort of questions one would ask in probing amendments. For example, is there any intention that the rules in Clause 1 extend to duties and defences under statute law: that is, under the Mines and Quarries Act? Another example, relating to Clause 2, is: does "recreational" include "educational"? On that point, when I refer to "educational" I mean educational in the broadest sense. I am not going back to the point made by the noble Lord, Lord Mishcon, about children, but there are occasions when people go on to land and, indeed, into factories for educational purposes. Or is "recreational" very narrow? Is it perhaps a bit of both? Those are the kinds of question which I and, I gain the impression, other noble Lords who have spoken, and no doubt others who are to follow, will want to ask in order to obtain a little more clarification and to ensure that the Bill, for whose introduction we thank my noble and learned friend the Lord Chancellor, is achieving the aims which we entirely applaud.
§ 4.25 p.m.
§ Lord Foot
My Lords, I shall confine my remarks to one point only. It is a legal point and on that account may not be very popular. It is not a criticism of the Bill but expresses the belief that, if any high hopes or expectations have been raised—and I am speaking now only about Clause 1—that this is a major advance, those expectations may be disappointed.
I say that for this reason, although perhaps I may say first of all that I take some courage in putting forward this single view because it is, I think, a proper Second Reading point and not a point of detail. As the noble and learned Lord the Lord Chancellor said, the main object of Clause 1 is to seek to clarify and bring some order into an area of the law over which there has long been difference and dispute.
Subsection (1) poses the questions which the rest of Clause 1 purports to answer. Subsection (1) states that,The rules enacted by this section shall have effect, in place of the rules of the common law, to determine—(a) whether any duty is owed by a person as occupier of premises to persons other than his visitors … and(b) if so, what that duty is.I hope it is fair to say that in the rest of the clause one finds the Bill's answers to those questions. I hope it is also fair to say that it does so by resorting over and over again to the test of what.is reasonable in all the circumstances of the case.If we look, for example, for the answer to the first question of whether there is any such duty on an occupier, the answer that emerges from the Bill is, "Yes, there is such a duty". The occupier is under such a duty ifin all the circumstances … he may reasonably be expected to offer them" —that is, the intruders—some protection.738 In answer to the second question of what is the nature of the duty, the answer in the Bill is that.the duty is to take such care as is reasonable in all the circumstances of the case".In subsection (5) one finds a repetition of the text. That deals with the way in which the duty and the care can be discharged by giving a warning. It provides that the warning may be sufficient if it is.reasonable in all the circumstances of the case".Although one hesitates to criticise or question the value of a measure which was recommended in the first instance by the Law Commission, which was subsequently recommended again and endorsed by the Royal Commission and is presented to this House by the noble and learned Lord the Lord Chancellor, I express the doubt whether this formula of what is suitable and reasonable in all the circumstances, which is applied throughout the clause, carries the matter very much further than it was before.
I quote in detail the terms of subsection (3), although I will leave out the words that arc not relevant to my argument. Subsection (3) provides that.
An occupier of premises owes a duty to persons other than his visitors in respect of any such risk as is referred to in subsection (1) above if"—I shall leave out paragraph (a) —the risk is one against which, in all the circumstances of the case, he may reasonably be expected to otter them—that is, the intruders—some protection".Does that really amount to saving anything more than this: that an occupier is under a duty of care to a trespasser or intruder where the circumstances make it reasonable that he should be under a duty? If that is right, in what way does this clause improve on the previous situation?
The major question that was, I suppose, considered in the Herrington case was: what was the statement in English law on the liability to trespassers? That was the issue with which the House of Lords was concerned. Among the many questions posed in that case was, first, the question whether there was any duty of care towards a trespasser. Another question was: does the duty vary according to the nature of the trespass and the nature of the trespasser? It is unnecessary to point out that trespassers can be of many different kinds. At one end of the spectrum there is the case of the child of six, as in the Herrington case, who trespasses upon an unguarded railway. At the other extreme there is the burglar or the person who steals the farmer's turkeys. Between those two there is a whole variety of different types of trespasser. There is the deliberate trespasser who goes in not with am criminal intent but in defiance of what he knows to be the wishes of the occupier of the land. There is the trespasser who trespasses in the mistaken notion that he has a right to do so. There are of course a variety of walkers and ramblers who may trespass upon somebody's land without understanding that they are trespassing, sometimes when they have simply lost their way.
I draw attention to that in order to ask this question. What guidance is provided in solving all those different and difficult questions by a clause which says only that an occupier owes a duty of care to persons where:he may reasonably be expected to offer them some protection"?739 I am not objecting to that; but those who expect that in the future the task of the courts when they are dealing with cases of this kind is going to be a simple one will. I am afraid. be disappointed.
§ 4.31 p.m.
§ Lord Stanley of Alderley
My Lords, when during the Administration of Justice Bill we discussed this problem of occupiers' liability, both stupidly and unfairly I accused my noble and learned friend of not appreciating the farmers' problems and doing nothing about them. I say "stupidly" because I was unable to appreciate the points of law of my noble and learned friend and "unfairly" because I failed to believe that he would do anything about the situation, despite his remarks—which he has quoted again today—that he hoped that a Bill would be produced which had round and not square wheels and that it would go forward with acclamation and success. May I suggest that the vehicle of my noble and learned friend has neither square nor round wheels: in modern parlance, it has done better. He has put the skids under it. I am today proved to be a proper doubting Thomas but I do not altogether regret that. When dealing with nature, it is usually best to go forward slowly. My noble and learned friend's 14 years (I believe) as a farmer, prior to his changing to another profession, may have encouraged him to carry that philosophy into making new laws.
Today I very much welcome this Bill, which will help to make access to our farms easier, as is the intention in the Wildlife and Countryside Act. Perhaps I should say that there are one or two minor points concerning occupiers' knowledge of a danger and where the line is drawn on what is and what is not a business, a point which was so admirably brought out by the noble Lord, Lord Mishcon. I should like clarification later on these points. But I can assure my noble and learned friend that my questions will be probing. I appreciate his efforts in bringing this Bill forward and I do not want to submit to the same punishment as when I tried to move amendments on his Administration of Justice Bill.
Finally, I have to tell your Lordships—and I hope my noble and learned friend will agree—that this Bill is the result of much pressure not just by my noble and learned friend but by the farming community to encourage more access to our farms by the public. May I ask those who spend their time criticising kindly to take note.
§ 4.43 p.m.
Lord I Hunt
My Lords, I have no intention to delay the passage of this Bill. I shall be brief. I am a late entry on the speaking list. I put my name down only after the list had been made up, having received encouragement to do so from the noble Lord, Lord Stanley of Alderley. I shall address myself very briefly only to Clause 2 and the provision that this makes for extending the parts of private property in which what might he called risk activities can be enjoyed by members of the public. Reference has already been made to the welcome given to the Bill by the Central Council of Physical Recreation, with which I have had long and 740 close associations. It has an impressive list of no fewer than 42 members in its outdoor pursuits division. Among them, as your Lordships will not be surprised to hear, is the British Mountaineering Council which, ipso facto, has as its raison de[...]re the encouragement of climbing and to support the interests of those who enjoy that activity—I hasten to say in its legitimate forms and places.
My noble friend Lord Walston has referred to a particular kind of accident: a fall from a horse by a young lady. I should like just to add that no climber would have any desire or any excuse to blame the owner or occupier of land if in the course of a climb on a crag, due perhaps to his own lack of skill or perhaps to his having a hold on a piece of unstable rock which came adrift, having made a rapid descent to the bottom, he arrived at the bottom and was impaled on a piece of farm machinery; all the less so because he would have seen it at the foot of his climb but nevertheless have elected to climb. It would add to the risk—which is after all the honey-pot which he seeks. No climber would thank an owner or occupier for helping him to make the risk any the less. He is there to take a risk.
My remarks, narrow as they have been, clearly apply equally to any other activity, such as some of those mentioned by the noble and learned Lord the Lord Chancellor, one of which we have shared in enjoying together. It is this risk which is so important to the circumstances and lives of so many younger people in particular who live in cities and who need such outlets. The particular land features in the countryside which provide for this kind of enjoyment, whether it is water or the subterranean activity of caving, hang gliding or whatever, are naturally limited in scope. They cannot he naturally added to. Meanwhile the number of those who wish (and, I believe, need) to have these outlets goes on increasing all the time. It is for that reason that I am so glad that this Bill will remove a certain restriction and limitation natural to those who Own or occupy the land. and will widen the opportunity in future.
§ 4.39 p.m.
§ Lord Gisborough
My Lords, I should like to speak very briefly in support of this Bill. It has the desirable object of allowing occupiers to know better where they stand on this whole matter. The object of Clause 1 is to help resolve some points of doubt. but it does undoubtedly raise new ones. I hope that light will be shed on the concept of danger. For example, is the occupier liable if he did not know of the danger?
In particular, and going on from the point that the noble Lord, Lord Mishcon, made, in this age of vandalism, in my area where there are a lot of mineshafts, the occupiers usually make good fences around them but vandals destroy them. This could easily lead (and I never understand why it has not already) to trespassers being hurt. To what extent will the occupier, knowing that that danger is there, have to visit the site (perhaps daily) to ensure that the fence has not been taken down? There is another danger which has also cropped up in my locality: that is the barbed wire fence. I was very surprised to hear that it even presented a problem. In this particular case, there was no footpath and no right of access. Yet it was alleged 741 that, because there was a barbed wire fence and because people were used to trespassing in that area, there Would he a claim against the occupier if they got hurt on that barbed wire. I hope that this point will be dealt with.
The clause tries to deal with the replacing of common law. As already mentioned, this is a dangerous thing to do because the draftsman has to ensure that all the common law principles and defences have been retained. There is a real danger that the occupier will be deprived of the defence open to him at present under common law.
Clause 2 permits occupiers more safely to allow public access for potholing and other recreations. The Bill is not clear about whether permitting access under certain circumstances could fall within the business purposes of the Bill. For example, there might he the case of a farmer who was totally involved in farming who might make a small charge for access or might even install an honesty box to help access or to fence round a potholing area. It is not clear whether that would form part of his normal business or whether it would he excluded and he accepted only as farming.
§ 4.41 p.m.
§ Lord Burton
My Lords, I should like to ask one question. My noble and learned friend the Lord Advocate has given me the impression that this legislation is not to apply to Scotland because the law in Scotland is better than the English law in this respect. My noble and learned friend the Lord Chancellor may disagree, but it is my impression that somewhat similar legislation to this would be welcomed in Scotland. I wonder whether the Government will consider the matter.
§ 4.42 p.m.
§ The Lord Chancellor
My Lords, I should like to thank all noble Lords for their friendly welcome to this piece of legislation and to answer, so far as I can, some of the various conundrums that have been put to me. I should like first to deal with the last speech. All I can say to my noble friend Lord Burton is that the Scottish departments considered whether to ask for Clause 2 to be adapted to apply to Scotland but decided against. I have no personal objection whatever. Should my noble friend desire the Lord Advocate or someone to answer in Committee an application to apply the law, with suitable adaptations, to Scotland, I should personally have no objection. But the Government's view is governed, as of now, by the Scottish departments.
I should like to return to try to clarify the purposes of the Bill. Clause 1 is, and remains, part of the law of tort, that is to say, it is what happens if someone gets hurt on someone else's land and no agreement whatever has been made about it. That is the background against which Clause 1 should be read.
Clause 2 is really part of the law of contract. Supposing that someone comes on to land by permission, in what circumstances is the landowner entitled to impose as a term of his permission that he should be excluded from liability? In dealing first with the latter issue, I take the point of my noble friend Lord Gisborough that, as a matter of fact but not of 742 law, there could be a circumstance when you got pretty close to the line on Clause 2. But on the whole—I shall come back to Lord Mishcon's point on Clause 2 at a later stage—I do not think that it is very likely. However, I would say that, if you start charging for permission, you find yourself in danger of not being protected by Clause 2.
The broad answer given by Clause 2, which is part of the law of contract, is that if you allow people freely on to your land, not as part of your business, whether it is farming, forestry or whatever, but simply out of the goodness of your heart and neighbourliness, you can exclude liability as a term of giving permission. But, if you start charging, then I think that you would be in difficulty because, broadly speaking, it would become a business activity and you would have to justify your exclusion under the existing law of the Unfair Contract Terms Act. I am not saving that it could not be excluded. I am only saying that you would come under the Unfair Contract Terms Act and not under Clause 2 of the Bill.
That brings me back to Clause 1 and the noble Lord, Lord Foot. I would absolutely agree with him in his general observation that the law of negligence is never easy. It cannot be made easy because circumstances are almost infinitely different, the one from the other. But if, being a lawyer himself, he will look at what my father said in Addie v Dumbreck, which virtually excluded liability to trespassers, even child trespassers, unless you did it on purpose, it' I might put it that way, he will see why the Appellate Committee in Herrington chose to depart from my father's fairly easy statement of the law, which would be easy to define, in favour of something far more difficult to define. They answered the question, "Who is thy neighbour?" more on New Testament lines than on Addie v. Dumbreck lines. The moment you start answering the question on New Testament lines, you get exactly the difficulty upon which the noble Lord Lord Foot, put his finger. What, after all, is reasonable? Who is my neighbour? The only answer that the Bill can give and the only answer, I think, that can he given to the lawyer who puts this question, is that that becomes a question of fact for the court and not a question of law for the court. Circumstances differ a great deal.
I take it that Lord Walston's query was designed to he pointed at Clause 2 rather than Clause 1. The answer is that the rider who is allowed to ride on the farmer's land for his or her own enjoyment could, of course, come within Clause 2 if the farmer had said "Yes, ride on my land, but remember that I am not liable for any unforeseen accidents that may happen". If' she had not asked for the farmer's permission, then she would come under Clause 1. If the farmer knew that she was there and that there was a bird-scarer in the field, an ingenious solicitor might be able to advise her that she had a strong case. If one knew that a trespasser was riding a frisky pony in the neighbourhood of a bird-scarer, it might be reasonable to ask the landowner to say, "There's a bird-scarer, so you had better look out". As you will see from Clause 1 (5), a due warning given in such circumstances might discharge the owner of the land.
The noble Lord, Lord Mishcon, asked me questions about two well-known Latin tags. Volenti non fit injuria was one. I think he may find that this is dealt 743 with, so far as it can be dealt with, by subsection (6) of Clause 1. Subsection (6) states:No duty is owed by virtue of this section to any person in respect of risks willingly accepted as his by that person (the question whether a risk was so accepted to be decided on the same principles as in other cases in which one person owes a duty of care to another)".I think that he can be assured that the old tag of volenti non fit injuria" is available to a defendant if he can prove the facts under subsection (6).
As regards ex turpi causa non oritur actio, I am well aware that in one of his more lighthearted moments the noble and learned Lord, Lord Denning, said that ex turpi causa non oritur actio applies to actions of tort. However, he did so in a very lighthearted moment during a striking out application, or rather an interlocutory appeal arising out of a striking out application, and I wonder whether he had really thought the question through. After all, let us take the absurd case of the unfortunate monk who keeps in Devon. a special breed of bees which have been twice stolen by a wicked man. He would not be entitled to set spring guns or man traps to stop the fellow doing it a third time. He would not be able to raise under the common law or under Clause 1 the plea, "Ex turpi causa non oritur actio —bad luck, old chap‡". He would have to bear the "stings and arrows of outrageous fortune" if he did so.
However, supposing you found a burglar putting a ladder up against your house with intent to steal from it or to do something even worse? I am not sure whether you need lean out of your window and say, "Look out, the third rung from the bottom is slightly defective". I suspect that you would not be under a liability to such a man. But I doubt whether that is part of the doctrine of ex turpi causa non oritur actio.I doubt the application of the doctrine in general to the law of tort. I think that the real application is to raise Lord Atkins' question which he sought to answer in a very different context in Donaghue v. Stevenson—namely, who is my neighbour and what duty do I owe him? What is reasonable in the circumstances? The noble Lord, Lord Foot, is absolutely right in saying that that is not at all an easy question to answer. However, we hope to have posed the right question by this Bill and to have removed some of the doubts, which existed before the Bill—and which will exist until this Bill becomes law—as to the principles to be applied about which the lawyers, who took a stricter view than the New Testament about "Who is my neighbour?", have hitherto made a very great deal of difficulty. I hope that this Bill will clarify the law rather than create a revolutionary change in it.
I am not sure how far I have dealt with particular questions. As regards the question put to me by my noble friend Lord Gisborough concerning the mine shaft, I point out that in so far as Clause 2 is concerned, if the visitor comes on with the permission of the landlord then the landlord can either accept the general duty of care under the 1957 Act or exclude liability under Clause 2 of the Bill. If he goes on as a trespasser then I suppose the question would arise under Clause 1 of the Bill whether the landlord knew that the trespasser was in the vicinity of the danger concerned or had reasonable grounds for believing that he might come into the vicinity of the danger and 744 whether the circumstances were such that he ought reasonably to offer him some protection either by warning or otherwise. But that would be a question of fact and not of law.
I hope that I have answered at any rate the bulk of the questions that have been put to me. I am grateful to the noble Lords who have spoken for their relatively friendly reception of the Bill. With those comments, I beg to move that the Bill be now read a second time.
§ On Question, Bill read a second time, and committed to a Committee of the Whole House.