Compensation Bill [HL]

moved Amendment No. 21:"After Clause 1, insert the following new clause—" ““APPLICATION OF SECTION 1 TO OCCUPIERS’ LIABILITY ACT 1957    Section 1 applies with the necessary modifications to the standard of care required of an occupier of premises under the Occupiers’ Liability Act 1957 (c. 31).”” The noble Lord said: It might be for the convenience of the Committee if we took Amendment No. 22 with Amendment No. 21. This is the first of the specific examples when breach of statutory duty needs to be addressed by Clause 1. I recall the Minister making the general point that there is a whole number of statutory duties to which Clause 1 should not apply—and I seem to recall that child protection, or something similar, was instanced. Of course, I could not agree more with that. What I seek to do now is to respond to the Minister’s point and bring forward specific examples. The Occupiers’ Liability Act 1957 imposes a duty to take suitable care of lawful visitors to land or premises. That Act was passed to amend and codify the common law duties of occupiers to certain persons who came upon their land. The common law distinguished between invitees, in whose visit the occupier had some material interest, and licensees, who came simply by express or implied permission. Different duties were owed to each class. The Act, on the recommendation of the Law Reform Committee, amalgamated the two common law categories designating the combined class as ““visitors”” and provided that all visitors should be owed a common duty of care. Although judicial views have been expressed to the contrary, it is clear from the wording of the statute that this is not simply a common law duty. It will replace the otherwise existing common law duty. Therefore, a provision relating solely to negligence—here I return to the point that I made at the outset of Committee stage—would not catch the liability of occupiers to lawful visitors. That would be a nonsense. Referring briefly to Tomlinson, the minority view was that a claimant had to be seen as a lawful visitor to land and therefore that the duty under the 1957 Act had to be considered. If reference is not made to that Act in the Compensation Bill, no party or court will be able to apply the terms and intention of this clause to a claim framed in terms of a breach of statutory duty—as it was framed in Tomlinson. Noble Lords may recall my previous reference to the case of Herrington v British Railways Board, which gave rise to the 1984 Act. Therefore Amendment No. 22 offers a wider position, this time on the Occupiers’ Liability Act 1984, to that previously raised in connection with the commission of criminal activity. Again, it would import an equivalent to qualify the statutory duty. In Tomlinson the majority view was that, within the terms of the 1984 Act, the claimant was a trespasser. The claimant argued that there had been a breach of the statutory duty owed to him as a trespasser. The clause as currently drafted applies only to claims arising from negligence and thus would not have allowed the defendant in Tomlinson to argue that because it was providing a desirable activity, it should be able to rely on this clause. I turn to the whole question of footpath users who are neither visitors nor trespassers because they are there under licence. The situation is not simple, but to apply Clause 1 only to negligence and not to breaches of statutory duties is a step in the wrong direction. I beg to move.