Compensation Bill [HL]

I am grateful for the noble Lord’s suggestion, but I have several things to do over Christmas concerning this Bill and others. I shall add it to the list. I was rather hoping that the noble Lord would suggest a study tour to New South Wales might be a more appropriate way for me to spend my time. Perhaps the noble Lord could join me and we could make it a parliamentary occasion. My officials were canny enough to have worked out that the noble Lord would be looking at what David Ipp did in New South Wales. On this element, I shall quote out of context from paragraph 8.18 of his report because it is important from my standpoint:"““Furthermore, the onus of showing that the plaintiff was guilty of contributory negligence has traditionally rested on the defendant. As it cannot be presumed that certain types of behaviour will always and in all circumstances be contributorily negligent, a reversal of the onus of proof is . . . undesirable””." I took that to mean that one of the great difficulties with looking at issues of drink and drugs, in particular, is determining in statute precisely how we would want the courts to interpret that. Looking at the cases that I have examined, it is clear that even though the noble Lord has pointed to a case where that might have been wrong and was then corrected, one of the joys of our judicial system is that it almost invariably finds its way to the right solution. Anything that we do to try to define these issues may have unforeseen consequences for those who are seeking to make claims. For example, the obvious questions would be about the definition of intoxication and the way in which some medications have alcohol in them. Would one be persuading people to try to find out, before they even begin the claim, whether an individual might have taken alcohol at any point? We all know that if one has a glass of wine and is then involved in an incident it might have no bearing at all for some people while for others it might have some bearing. It is difficult to define this in a way that would give the right level of comfort to those involved that we would not create a difficulty that the courts currently do not have. As I understand it, the courts are not interested in how drunk a person might have been but in the carelessness that went alongside that and the way in which his behaviour was altered. One cannot use being drunk as an excuse for not taking care; that does not work at all. The issue is whose fault the injury was and the level of carelessness in what the individual did. I fear that the amendment as it stands would require the courts to consider that in every case anyone who was under the influence of alcohol—and we could try to define that—or another drug was, de facto, careless and that that was the cause of his injury, unless he could prove otherwise. That is a considerable shift in the law and I am not sure that I would think it anything other than too wide. I accept the premise that underlies what the noble Lords are seeking to do, which is to recognise that people who get drunk, do something stupid and are careless, need to take the consequences. It does not always mean that the fault lies entirely with them. The example I have been using all week, which I shall probably regret telling the Committee because I shall receive a competing example, is of a scout troop that decides to pitch its tents in the dark on the side of a cliff. One of the lads gets drunk and walks over the side of the cliff, which he might have noticed had he not been drunk. None the less, the troop should not have pitched the tents on the side of the cliff. The issue is allowing the courts to weigh up all the evidence and to come to a conclusion that puts the carelessness of an individual in the right context. I think that the 1945 Act gives the right framework and moved the law on considerably, and I would not be in conflict with it. On that basis, I hope that the noble Lord will feel able to withdraw his amendment.