Compensation Bill [HL]

moved Amendment No. 14:"After Clause 1, insert the following new clause—" ““EXCLUSION OF LIABILITY (1)   A court in considering a claim in negligence shall accept a notice excluding liability as valid if it— (a)   is displayed in such a way that it is likely to have been comprehended by the claimant at or close to the time when he decided to take the excluded risk; (b)   excludes risks which an ordinary person might reasonably be expected to evaluate; (c)   describes clearly the risks excluded. (2)   No liability in negligence shall arise in respect of risks which are obviously and necessarily entailed in an activity which the defendant has chosen to undertake.”” The noble Lord said: My concern in pursuing this amendment is that there is a level of misunderstanding among the public and public authorities about what one can achieve with notices. That lack of understanding has led to the abandonment of various activities and perhaps to people taking unnecessary risks. Coming back to what I said on Amendment No. 1, in general when people take risks they should take responsibility for those risks. It should be possible, where it is reasonable to do so, for a trader or for an authority to transfer any suggestion of risk to the public and for that transfer to be secure. An illustration that I used a long time ago in a speech in the House of Lords is that as long as butchers display a notice to the effect, they should be allowed to sell rotten meat or meat contaminated with heavy metals—as indeed they are. It is a common practice of butchers to sell high pheasants. We are used to the idea that as long as people know what they are getting they can take the risk. You say that people will accept that risk, but it is becoming increasing difficult now to organise visits for schoolchildren to farms because of farmers being sued because the kids have picked up diseases through touching the animals. The farmer ought to be secure in the idea that if he puts up a notice saying, ““You may catch diseases if you touch the animals””, it is up to the teachers or parents to decide whether to let their children take that risk. It ought not to come back on the farmer. A playground in Holland Park that my children used when they were young has been closed, because it was a fairly adult place for five year-olds and up; it had quite big equipment in it, and you could have a lot of fun in it. But the council felt that it had to provide full-time supervision. Why should it not be able simply to put a notice on the gate saying, ““You use this playground at your own risk. We cannot provide supervision—you take the risk””. It seems important that one can transfer the risk in that way. The noble Baroness has been kind enough to write to me saying what the existing law is. By and large, I think that is what the existing law achieves, although it seems to be overly fond of notices. In walking around the countryside, I have not seen it littered with notices. If you walk through a wood you take a lot of risks. You could slip. Badgers have the habit of digging their latrines in the middle of paths, and they will trip anybody up if they are not looking. You are encouraged to leave dead trees because they are good for the woodpeckers and bugs, but they have a habit of dropping bits on people at one time or another. All sorts of dangers are inherent in woods, but I have yet to come across one that has a large notice excluding liability. That is the point of the second part of the amendment. Where a risk is absolutely inherent in an activity—where it is obvious that to indulge in that activity you must take those risks—there need not be a notice. I beg to move.