Compensation Bill [HL]

It will not surprise anyone to hear that my familiarity with the Occupiers’ Liability Act 1984 is limited. I know that the noble Lord is using the amendment to raise an issue that applies to that Act, as the amendment technically does not work because we are dealing with ““desirable activity”” at this point. However, that has never stopped me from trying to deal with a point that I think is valid in context. I am not going to get into details of how effectively the Act has worked for 21 years, because it will not surprise anyone to hear that I am no expert on it. However, I will undertake to ask the relevant department and Minister whether we can get a letter to the noble Lord, Lord Hunt, and put a copy in the Library to give some view on how it is working in the context of the amendments. I hope that that will go at least some way to deal with the issue that the noble Lord has rightly raised. In British Railways Board v Herrington the age of the child was an important consideration, but there were other considerations. The danger was clear, and the board knew that children used to go through the broken fence—there was evidence of that—and the risk was one which it was reasonable to do something about. While I accept that you have to take greater care in particular ways for children, I do not think that you can differentiate children from adults, as the noble Earl was saying. The noble Lord, Lord Hunt, raised a question that I would have raised with him—that the amendment does not deal with those who have a learning disability and have a mental age of six but may be an adult. The amendment states,"““under 14 years of age but can prove that he did not have the capacity””." I would prefer ““or/and”” to ““but””, because it is important. I know that the noble Lord, Lord Hunt, would not have missed that group of people out, but it is an important factor in thinking through how one would tackle this. I am very loath, for the reasons that the noble Earl gave, to do anything that is age-specific, because children are so different. One of the things that I learnt as an education Minister was just what a disparity of ability and common sense there was between children of the same age. Some of their upbringings and lifestyles—or just the way they were—meant that they did not have any common sense at all. I am nervous of saying that it was particularly true of boys in my experience, but I will not go there in the company that I am keeping this evening. Perhaps that may have been the experience of noble Lords. I will be in real trouble when my son reads that in Hansard. I accept that we want to be clear about people taking on activities and understanding that is what they are doing, and that they need to understand the risks they take within the limits of who can understand risks. That is what the noble Earl started us off with. Even adults undertaking a new activity do not necessarily know the specific risks, and we need to be clear about that. I do not think that we can do anything age-specific, for the reasons that noble Lords would expect me to give. I have undertaken to try to get, at least in part, an answer to the very specific question that the noble Lord asked about that legislation. I am sure that the Minister concerned will thank me greatly for it.