Compensation Bill [HL]

I refuse to eat the apple that has just been passed to me. On the back of the last debate, it is important to consider the position of children. This amendment is an attempt to redraft the duty, including that to trespassers, under the Occupiers’ Liability Act to reflect a view of the current political situation and of the original intention of that Act. It followed British Railways Board v Herrington, which involved a child trespassing on a railway line. The British Railways Board owned an electrified line that was fenced off from a meadow where children were lawfully playing. The fence had been in a dilapidated condition for some time and the defendant’s stationmaster had not done his duty properly. The child, then aged six, trespassed over the broken fence from the meadow where he had been playing and was injured by the live rail. The Appellate Committee found that the British Railways Board was in breach of its duty and the child was entitled to damages. The principle of that case is that if a child is a visitor, an occupier must be prepared for children to be less careful than adults. Apart from any statutory provisions, it is a matter of ordinary common knowledge that children will roam and explore. If a fence marks a boundary, an adult who climbs over it will appreciate that they are doing something significant. A small boy who finds a part of a fence so dilapidated that there is no obstacle to his progress may or may not know that he is a trespasser, and the point follows. The intention of this amendment is to restrict the application of the 1984 Act to children and to go one step further by importing into it—that was the original intention—an equivalent to the criminal standard of assessment of the capacity of children. We need to differentiate between children who know the consequences of their actions and those under 10 or who lack mental capacity. The law has to be especially scrupulous in protecting children, whether they are trespassing or not, but I contend that that care may properly diminish, as it does in the criminal courts, as the child becomes older and wiser. It is probably fair to say that there is a world of difference, even in the 21 years since the Occupiers’ Liability Act 1984 was brought into force, in the understanding of older children about the risks that they are taking. I hope that the Minister will be able to respond to this point, even though it was originally put forward as a way of amending the Act. It gives us an opportunity to reflect on whether that Act has stood the test of time and whether we should now insert this amendment in the Bill, so that the court has regard to the age of the claimant and can differentiate between when the claimant is under 10—the noble Baroness will remember that in the Herrington case the child was six—and when the child is under 14 but can prove that he did not have the capacity to understand the nature of his actions. The amendment imposes that sort of test, which more adequately reflects the demands and the status of today’s facts of life, rather than going back 21 years, because the world has changed considerably. I beg to move.