§ Order for Second Reading read.
§ 8.36 p.m.
§ The Solicitor-General (Sir Harry Hylton-Foster)
I beg to move, That the Bill be now read a Second time.
I regret the need to detain the House for a few moments to explain what the Bill is about. It is a Bill for the reform of the law, and I suppose that means that there is matter for contention among lawyers in it, but I hope and believe that there is no party controversy about its content.
The object of the Bill is, broadly, to give effect to the recommendations in the Law Reform Committee's Third Report. There will be no controversy about the wish and need for me to express the gratitude of this House to the Members of that Committee, distinguished and busy people, who generously gave their skill and wisdom in the public service and produced a Report so clear and agreeable to read that I am reliably informed by a professor that his students have found out all about it and now use it as a textbook. Clearly, the House would think it right to congratulate the draftsman, who has performed his duty in a magnificent fashion in reducing so much matter into so brief and lucid a form.
The Bill is concerned with a limited but important branch of the common law. It deals first with the liability of the occupier of premises to visitors to those premises in respect of injury to them, and their goods due to the state of the premises; and secondly, with the liability of a landlord to his tenants' visitors in respect of injury due to the state of the premises in cases where the landlord has undertaken an obligation to maintain and repair the premises.
To explain the Bill I have, unfortunately, to recall in the broadest possible terms how the law now stands. The standard of care required of an occupier towards a visitor in these circumstances depends upon the category into which the visitor falls at law. He may be a trespasser and have no right to be there. In that case, the Bill leaves the law unchanged. The visitor may be there on the basis of a contract made between him and the occupier. It is convenient to call 462 that kind of visitor a contractual visitor and to talk about him in connection with Clause 5. The position of the rest of the lawful visitors is that they are either invitees or licensees, according to whether or no the occupier has a material interest in their being on the premises. The invitee is entitled to a higher standard of care and the licensee to a lower standard of care, and the difference between them is that in the case of the first the occupier has a material interest in his presence and in the case of the latter he has no material interest in his presence.
The duty of the occupier to the invitee is usually stated as the duty to use reasonable care to prevent injury to the visitor from unusual dangers of which the occupier knows or ought to know. On the other hand, his duty to the licensee is usually said to be to take reasonable care to prevent injury from concealed dangers or traps actually known to the occupier and not known to the licensee. If one states them just like that they sound distinct enough, but decided cases have produced refinements and distinctions until the edges are blurred.
To contrast the unusual danger with the concealed danger or trap has become difficult. All concealed dangers or traps are unusual dangers though some unusual dangers are not concealed dangers or traps. The dangers of which the occupier actually knows contrasted as against those which he ought to know sounds a distinction firm enough, but it has been whittled down by cases, which have imputed to the occupier actual knowledge of the danger if he had knowledge of the state of the premises which constituted the potential danger and that was all. One Lord Justice may, perhaps, be excused for having said that the distinction has now been reduced to vanishing point.
It is not only the distinctions between duties which are tiresome nowadays but the phraseology of the categories of visitors is not satisfactory to the ordinary layman.
He does not begin to understand that if one invites somebody to dinner in the ordinary social sense he is not one's invitee in law. The Committee came to the conclusion—we agree with it—that the test of the material interest of the occupier could produce odd and absurd results. There are plenty of examples in 463 the Report. I do not propose to weary the House with them.
An easy example is the shop. If one goes to a shop to buy the goods one is an invitee. If one goes to the shop to ask the way one is a licensee. If one goes to the shop and sees something which tempts one to buy and one buys, one is an invitee. If one asked to buy something which is not in stock one becomes an invitee. One can go into a shop as an entrant of one category to whom the occupier owes a duty of care and one can come out being in another and owed another duty of care. It is a little artificial. The same Lord Justice has described this as the morass into which the law has floundered in trying to distinguish between licensees and invitees. One of the best textbook writers describe them as profitless distinctions—an epithet which is quite good if the House will not apply it to the legal profession or examiners in law.
The Committee concluded that this distinction between invitees and licensees based on the occupier's material interest was untenable as a rational means of fixing upon the occupier a higher duty of care in one case and a lower in the other, and the Committee recommended, a recommendation we have adopted, that there should be substituted one uniform standard of care—the common duty of care owed to all persons who come upon premises at the occupier's invitation or permission expressed or implied. That duty the House will find in Clause 2 (2).
It is followed in that Clause by some examples which are designed to prevent the courts from being fettered by old cases relating to the duty to invitees. I have to draw the attention of the House to two of them because they involve changes in the law. Hon. Members occupied with the law will recall the controversy which has raged for many years about whether the occupier's duty to the invitee is discharged by giving an adequate warning, or whether he has to make the premises safe.
That was brought into some prominence by a case which the House will remember was lately decided by the House of Lords, where a workman was injured because he was working on an inadequate scaffolding provided by the defendant. He actually complained about it and it was 464 held that he could not recover because he had knowledge of the danger and appreciated its full significance although he had acted perfectly reasonably in going on with the job and had most certainly not accepted the risk willingly.
It seemed a very hard result, and the Bill disposes of it by Clause 2 (4, a) by indicating that…warning is not to be treated without more as absolving the occupier from liability, unless in all the circumstances it was enough to enable the visitor to be reasonably safe…".The next change is in Clause 2 (4, b). It has been held that the occupier cannot escape from his liability to a visitor for injury resulting from faulty work done by an independent contractor. If the proper test is the exercise of reasonable care by the occupier, as most people think it is, that is quite absurd. We can take the example of a hydraulic lift about the maintenance and repair of which the occupier knows nothing. It is entirely reasonable for the occupier to entrust that work to an independent contractor with technical skill and knowledge.
If he does, the Bill enacts that…the occupier is not to be treated without more as answerable for the danger if in all the circumstances he had acted reasonably in entrusting the work to an independent contractor and had taken such steps (if any) as he reasonably ought in order to satisfy himself that the contractor was competent and that the work had been properly done.Clause 3 deals with a case where an occupier of premises has a duty to people whom he is bound to admit to the premises as a result of a contract made with a person other than the visitor. Examples which one might choose are people who ride in a chartered aircraft where one did the chartering, or the case of the friend whom one takes to the theatre, or those many cases where the landlord remains in occupation of the means of access to some place let to a tenant, perhaps the forecourt to a shop Or the common staircase to a block of flats. It has been held with regard to people who are strangers to the contract of the occupier, for instance, visitors going up a common staircase in a block of flats, that the occupier owes the same duty to them as he does to the other party of the contract.
That might have the unfair result of limiting people's rights under the general 465 law, by the terms of a contract of which they have no sort of knowledge at any time. That seemed to the Committee unsatisfactory and unjust, and the Government agree. Accordingly, we invite the House to enact by Clause 3 (1) that the occupier is to owe to such persons, entering in right of a contract to which they are strangers, the same common duty of care that he owes to all lawful visitors. He cannot, by contract, restrict or exclude the common duty of care, but if by contract he has taken on towards the other party to the contract obligations more onerous than the common duty of care, he can, by contract, prevent those applying to persons other than those who are parties to the contract.
Clause 4 deals with a case of a landlord who has undertaken by the terms of the tenancy the obligation to maintain and repair the premises. The House will remember the difficulty here. He does not owe the duty to repair, which he has undertaken by the tenancy, to the tenant's visitors or to members of the tenant's family. All lawyers will recall an old case of 1906 where the wife of the tenant was injured because the floor was defective, at a time when the landlord was obliged by his contract of tenancy to maintain the floor. She was left wholely without remedy. She could not sue her husband, who was the tenant, and she had no right against the landlord. Everyone since has thought that to be an unfortunate result, although the decision may have been right. Certainly it was criticised by the Law Reform Committee. It was also criticised by the Leasehold Committee which reported in 1950, and, in effect, the Bill enacts that the landlord who has undertaken the obligation of maintaining or repairing under a tenancy shall owe a duty to such persons, as if he himself was the occupier of the premises. I am glad to say that this seems to concur with substantial justice and it avoids circuity of action.
There remains to be mentioned Clause 5. This goes back to the contractual visitor, who enters on the premises because of a contract with the occupier which entitles him to do so. In such a case the nature and extent of the occupier's standard of care may be dictated by the express terms of the contract. If it is, then this Bill leaves it dictated by those express terms. However, there are many cases where the 466 contract is silent; the matter is left to an implied term and, as the law now stands, there are two separate standards to be distinguished.
Broadly, in the case where a contract is one for the use of the premises, the occupier must have them as safe as reasonable care and skill on the part of anyone can make them. On the other hand, where the contract is one where the use of the premises is merely incidental to the main purpose of the contract, his duty is to take reasonable care that the premises are reasonably safe for the purposes for which they are to be used.
Since there is an immense variety of such contracts, it is obviously difficult to say sometimes into which category the contract falls, and that is productive of uncertainty. The Bill has adopted a line of thought developed by the Committee by enacting that in such circumstances the implied term should, in effect, once more be the common duty of care. I think that is the right way to deal with the problem.
I regret having to detain the House for so long at this hour but there was a great deal of matter to be explained, even in outline. I commend the Bill respectfully to the House as a useful step in the reform of the law, and I hope that the House will think it worthy of an unopposed Second Reading.
§ 8.52 p.m.
§ Sir Lynn Ungoed-Thomas (Leicester, North-East)
After full and lucid explanation of the Solicitor-General, I need only detain the House a short time. We are in complete agreement with the right hon. and learned Gentleman, particularly with his observations about the substance of the Report of the Law Reform Committee and, indeed, about the way in which it has been presented. I am sure that the House is extremely grateful for such an amazingly lucid exposition of some very complicated law, and also for the strong and common-sense conclusion reached in the Report.
As the right hon. and learned Gentleman indicated, this Bill deals with liability of landlords and tenants of premises for damage caused by the state of the property. The different kinds of persons with whom it deals are those who are lawfully on the premises, including, in particular, what the law calls invitees and 467 licensees. It does not deal with the case of trespassers, to which I will return before I sit down.
In the case of the two main categories of people lawfully on the premises to whom damage may result, there are two criticisms with which we are in complete agreement. The first is the criticism of the distinction in definition between these two categories. The sceond is the criticism of the standard of care required from these two separate categories of persons.
The first point, the distinction in definition between them, is that in the case of the invitee the test is not, as one would expect, and as the Solicitor-General pointed out, whether the person was invited to the premises or not. Far from any such commonsense definition, the test is whether or not the occupier of the premises has, of all things, a material interest in the purpose of the visit.
The result is that if a person is invited to dinner and a crash occurs, in the case of the person invited to discuss a business matter or other, a higher standard of care is required than in the case of a person who is invited merely as a guest. That is contrary to all common sense, and we agree with the criticism made of this distinction between invitees and licensees.
Then we have the different standards of care. I am not going into the definition of the different standards of care which has already been mentioned and can he referred to, if need be, in the Solicitor-General's speech. The ludicrous position of the development of the law is this. The law having spent years in making these distinctions between the invitee and licensee dependent upon the material interest upon the purpose of his visit, has then spent further years in whittling away the difference which it itself has made. At last we have got to a commonsense conclusion as the result of the Committee which was set up to consider the law about it.
Complications which have been piled on complications are not merely limited to this ludicrous distinction between invitee and licensee. We have all sorts of nice questions, as: who is an invitee and who is a licensee? Take, for instance, a person legally entitled to use premises provided for the use of the public. Take 468 the classical case of a public convenience. One would have thought that in the case of a public convenience the local authority which provides it had a material interest in the public using the convenience for which it has provided and, therefore, that the person who gets there would be perhaps regarded as an invitee. But not a bit of it, he is regarded as a licensee.
On the other hand, if a person is legally entitled to enter premises, such as a gas man, he is probably an invitee. If we have a person entering, under a contract, without any express reference in the contract to it, there seems to be a difference of view as to whether he is an invitee or a licensee. Certainly, if he is working in one part of the premises under contract and goes to another part of the premises not under contract, there may be a different standard applicable to him in the one case from the other.
This is really a piece of cheeseparing in the law which makes the whole position ridiculous. The measure of reform, and the approach of the Committee to the reform proposed to this ridiculous position in which the law finds itself is, we think on this side of the House, altogether admirable. What the Report says, in page 22, and lays down as the principle, is that…any measure of reform should aim at preserving real differences while removing useless complications. …That must be a principle which would commend itself to everybody.
It then goes on to consider the reality in these cases. It says:…One and the same standard of care…should apply in respect to all persons lawfully upon his premises, for the duty flows from the circumstances common to all cases (i) that the occupier is in control of the premises and (ii) that the visitor is lawfully upon them.We certainly accept that principle on this side of the House, and we are happy at the way in which this has, in general, been carried out in the provisions of the Bill itself.
There was a criticism by as great an authority as Mr. Justice Diplock, who made a dissenting report which certainly commands respect, disagreeing with the proposal put forward by the majority which now is the principle adopted in the Bill. He pointed out—and I think that lawyers particularly will have a great deal 469 of sympathy with his criticism—the danger of having a new series of rules defining compliance with a widely defined statutory duty. Here we have a widely defined statutory duty and we must all recognise that there is this danger of a new series of rules defining the general term and leading to what he refers to as refinements of the law.
It is by that process of refinements that we have completed the circle in the present condition of the law and led from a ludicrous start to a ludicrous end. There is a similar danger in the Bill and it ought frankly to be recognised. We should all be obliged to Mr. Justice Diplock for calling attention to that danger, because it is conceivable that under the Bill as drawn there might be refinement upon refinement which would mean that we should simply be starting another ludicrous circle such as has been completed, before the Bill came into operation and with which the Bill is designed to deal. I am sure that, in view of the history of this part of the law, that danger will not, in fact, materialise.
There are one or two criticisms, but I will limit myself to the main points that we wish to make. My hon. Friends with whom I have had an opportunity to discuss the Measure may wish to raise other points of detail and they may develop rather more fully than those which I merely propose to mention. It is as well to mention the main ones now.
The first is that we are doubtful whether all persons lawfully on the premises are covered by the Bill. We certainly consider that it would be better to have that clearly established instead of having piecemeal references. For instance, to "invitees" and "licensees", as we have in Clause 1. As far as I can see, all persons lawfully on the premises are in fact, in one way or another, covered by the Bill, but it certainly would be helpful if we could have that rather more clearly established in the Bill itself.
My second point is this. I mentioned earlier that I should refer to the question of trespassers. I wish to refer to trespassers in connection with children in particular. We are rather worried about the position of children trespassing on premises. When children trespass on premises we all know that they may become licensees in certain circumstances, 470 and when they become licensees then the duty with regard to them is higher than is the duty with regard to adults. A defect in the present system is that in deciding whether or not a trespasser becomes a licensee, the test which is applied is precisely the same for children as it is for adults.
The matter has been set out very clearly in page 16 of the Report, in paragraph 30. We recognise the difficulties involved. We have considered this question in some detail. It is a matter to which we shall want to refer in more detail in Committee to see whether a method may be devised of dealing with what I think is generally recognised to be a difficulty and to try to provide a solution which I hope will be rather more satisfactory than the present state of the law.
I will not mention other points of detail which we shall discuss in Committee and to which doubtless my hon. Friends will refer. We have often heard in the past judicial condemnation of Parliamentary legislation and, for Members of Parliament at any rate, it will be refreshing on this occasion to see, I will not say Parliamentary, but judicial condemnation of judge-made law. We all rejoice that on this occasion, as a result of what is largely a judges' Report, we have a solution put forward to put right this fantasy of judge-made law. It is put forward by the judges. It is accepted by Parliament and put forward by Parliament in legislation which, I hope, will not lead to any repetition of the difficulties.
§ 9.5 p.m.
§ Mr. Charles Doughty (Surrey, East)
Although this Bill has been so properly well-received by the House, it makes fundamental changes in the law which I practised and learned in the same places as my right hon. and learned Friend the Solicitor-General and the hon. and learned Member for Leicester, North-East (Sir L. Ungoed-Thomas) and at the same time. I cannot part with the old law without one or two words of welcome for the new.
Some criticism has been made of the judge-made law. That has evolved over many years and one judge has had to take up where the previous one left off. When a Committee, comprising a large number of judges, produces such an excellent Report as has been produced by 471 the Law Reform Committee, one sees how their minds would have moved had they started with the question de novo.
We have that wonderful, theoretical individual, the invitee, with his first cousin, the licensee, who will be now wedded into one. In fact, they are exactly the same person upon different days and even at different minutes, and after the wedding has taken place they will be placed under the protection or definition of Clause 2. Here I wish to say how much I welcome Clause 2, but it raises a question of fact. We have to decide whether people who have been lawfully on the premises, and are occupiers, have carried out their duties as laid down by law. It would be interesting to know who is to decide that question. Is it a pure question of fact and not of law, and could we not have back the jury of twelve people to decide this question of fact?
In the course of the last few years that jury for all practical purposes has disappeared in civil cases. I believe that this is a good occasion on which it could be reintroduced, so that this question, which is one of common sense, could be decided by twelve of our fellow citizens on every occasion.
I am pleased to see that Clause 2 will reverse the decision in that very hard case to which my right hon. and learned Friend the Solicitor-General referred, the case of the workman who slipped off a plank, better known as Horton v. London Graving Dock. I was concerned in that case from the beginning right to the unsuccessful conclusion in the House of Lords, and I have always considered that it was a hard case, though no doubt correct in law. I am glad to think that if anything happens to a person in a similar position to Mr. Horton he will be almost certain to obtain the damages to which he is properly entitled.
Clause 3 is a very wise Clause which makes technical changes in the law. Clause 4 places a much increased liability upon landlords. I would only say—and I am here straying from the legal form of the Bill—that I hope that somehow that point will be made from this House so that those who are landlords in the strict sense of the word or in the form that they have sub-tenants, may realise their liabilities and insure against them. Otherwise, a great many citizens of this 472 country will find themselves faced with liabilities which they will have difficulty in meeting, if they do not find it impossible to meet them at all.
It is perhaps more of a Committee point than a point to be raised on Second Reading, but Clause 4 (6) makes somewhat of an exception and deals with the relations between the landlord and tenant. How is a person who suffers injury to know what is his position, unless there can be inserted some words whereby, when an injury takes place, he is entitled to have pre-trial discovery—I am here using loose words, and I am not suggesting the words of an Amendment—because otherwise it will be impossible for him or his advisers to know whether there is a liability on the landlord or not?
I add my wish to those of the learned Solicitor-General and the hon. and learned Member for Leicester, North-East that this Bill will obtain a speedy Second Reading.
§ 9.10 p.m.
§ Mr. David Weitzman (Stoke Newington and Hackney, North)
I, too, welcome the Bill. I read with very great interest the report of the Law Reform Committee on which the Bill is based. I hope I can say without impertinence that it was undoubtedly an excellent piece of work by a very distinguished Committee.
There is no doubt that the distinction between "invitee" and "licensee" was very artificial. That is well illustrated by the examples given in the Report. As the Solicitor-General has said, the law has now reached the stage where, from the practical point of view, the difference between invitee and licensee has largely disappeared, and it is only right that actual practice should be enacted in an Act of Parliament so that there may be no doubt in law upon the point.
The Bill recognises that there may be a contract between the parties. Of course, in these cases, the rights are governed by that contract. The Bill recognises the right of an occupier when he admits anyone to his premises to restrict or exclude liability. The rights are governed by such an arrangement. It is in the main to cover the absence of such a contract or restriction that we have the provisions of the Bill. Surely it is right, when a person lawfully goes on premises and is not a trespasser, that the occupier should owe 473 a duty to him in regard to the state of the premises. It is reasonable to define that duty in the way in which it is defined in the Bill. It is:to see that the visitor will be reasonably safe in using the premises for 1he purposes for which he is invited or permitted by the occupier to be there.I understand that is the "common duty of care" as set out in the Bill.
The Solicitor-General pointed out two important changes made in the Bill. One I welcome and the other I would dare to criticise. In regard to the first, as the law stands, if a visitor goes on premises and if there is notification of danger and a recognition of risk, the occupier is not liable for damages sustained. Reference was made to Horton's case, in which a man was engaged on repair work on board a ship and complained about the sufficiency of the staging. Despite promises to repair, the repairs were not effected and the workman was injured. The workman knowing the position went on working and it was held he could not recover. This was an obvious hardship. I am glad to see that that position is remedied by Clause 2 (4, a) under which a warning of that kind is not conclusive but has to be taken into account.
I criticise Clause 2 (4, b), where an alteration is made with regard to the law affecting an injured person. The alteration affects his claim adversely. The Solicitor-General pointed out that as the law stands it is no answer to a claim for the occupier to say that injury was due to the faulty work of an independent contractor. The paragraph alters the law M regard to that. It is hard upon an injured person to say that the occupier shall not be liable because the fault is due to the work of an independent contractor. The injured person may be able to sue the independent contractor, but surely the better way is to leave the position as it is. After all, an occupier who is liable may well have his remedy against the independent contractor for the faulty work. I hope that this point will he looked at again to see whether the alteration is really one which should be effected.
I am glad to see that Clause 4 does away with our old friend Cavalier v. Pope. Clearly, where a person lawfully enters premises and is injured because of a state of affairs due to the failure of the 474 landlord to carry out repairs, it is wrong that the right to the recovery of damages for injury should be restricted to that tenant. Even the wife or a member of the family cannot at present recover damages. The landlord must know that there is a wife or that there are members of the family who are on the premises and that other persons can come upon the premises. I am glad to see that the landlord is now made liable for injuries to such other persons for his default with regard to the state of the premises.
I am a little doubtful about the effect of Clause 4 (3). As I read that subsection, it would mean that where a tenant lets premises to a sub-tenant and it transpires that it was unlawful for him to effect such a letting—possibly discovered many years afterwards—then if the sub-tenant is injured because of the failure of the landlord to carry out repairs the subtenant cannot recover. I should have thought that it is wrong to allow a landlord to escape liability for what after all is his fault. I hope that that will be looked into.
I too am concerned a great deal about the position of children, particularly children of tender years. Where they are lawfully on premises, as in the long series of cases by tacit permission which made them licensees or otherwise, difficulty might arise in defining what is meant in Clause 2 by the duty to see that the childwill be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupierto be on the premises.
Suppose a child is lawfully on the premises and there is a machine or some chattel on the premises which constitutes an allurement and the child plays with it and is injured. Obviously, he is not "invited or permitted" to be on the premises for the purpose of playing with the machine. As a learned judge said in one case, the child is not invited, for example, to slide down the banisters. May this not lend countenance to the argument that those decided cases, where it has been held that there is liability for injury to children, particularly where there was an allurement, may, after the passing of this Measure, be held not to be good law?
I appreciate that in Clause 2 (3) the draftsman has endeavoured to deal with the difficulty with regard to children. It 475 will be seen that in that subsection the words have been inserted:an occupier must be prepared for children to be less careful than adults;I venture to suggest that all the words inserted by the draftsman mean is that the duty there is to see that the child will be reasonably safe and to expect the child to be less careful, but does the subsection adequately cover liability for injury to a child in what may be called the allurement case? I personally have grave doubts whether the wording may not mean that many cases where the liability for injury to children has been recognised may not after the passing of this Bill be good in law.
I confess to an unhappy feeling about the position of children in law as trespassers. Admittedly this is a difficult problem. The Committee considered this matter and recommended no change. I appreciate that that is a very strong view, but I cannot help thinking that the decision, for example, in the case of Edwards v. the Railway Executive was a very harsh one. That was a case of a boy of nine who got on to a railway line and lost his right arm.
The evidence was that children from a neighbouring recreation ground were accustomed to break through the fence which enclosed the line. It was true that in that case the fence was repaired by the railway authorities when the break was observed, but it was held that the child could not recover because he was a trespasser. I recognise that it may be putting a heavy burden on a railway authority or other occupiers to hold them liable in cases of this kind.
I feel that one ought to recognise, however, a very great difference between cases of accidents where adults are involved and cases of accidents affecting children. An adult may well know that he is a trespasser, whereas a child of tender years does not appreciate the position. Where there is the knowledge that children are in the vicinity and are likely to trespass, surely there is a case made out for greater care to be exercised in respect of those children by the occupiers than in respect of adults.
There is the further possibility that there may be an allurement on the forbidden territory on which the child is a trespasser, and that may be a factor in 476 considering whether or not tacit permission to go on the land may be implied. There are cases with which I am sure the Solicitor-General is familiar, like Lynch v. Nurden and Donovan v. The Union Cartage Company, where a child climbed on a cart and was a trespasser; and in one case the claim for damages succeeded and in the other the child failed to establish liability.
I appreciate how difficult the point is and I should not be venturesome enough to say that the Committee is wrong. Obviously it ought to be recognised that too hard a burden should not be placed on occupiers, but I am sure that a great many people have the feeling that as the law stands at present consideration of children as trespassers is a matter which needs investigation. I venture to suggest that the discussion of the Bill constitutes a good opportunity to look into that matter a little more closely to see whether something can be done to deal with the position of children.
I have made certain criticisms and I hope that those points will be considered, but I join in saying what an excellent Bill this is. I, too, share the hope that it will have a very speedy passage on to the Statute Book.
§ 9.22 p.m.
§ Mr. A. J. Irvine (Liverpool, Edge Hill)
I do not want to detain the House for long at this late hour. Most of the points have already been covered. I think that this is a very important Bill and on that I agree with the observations of the hon. and learned Member for Surrey, East (Mr. Doughty). The task of the Bill, as I understand, is to strike a balance between the need for clarity and for getting rid of artificial distinctions on the one hand and, on the other, the need to take account of the innumerable varieties of liability which can arise in this branch of the law.
The Bill thus sets about the very arduous task of trying to place upon the Statute Book a clear, comparatively simple and codified system of law which is to be applicable to great varieties of circumstances. I would respectfully express the view that, by and large, that is achieved by he Bill, but I would venture to make one or two reservations about the manner in which it attempts to achieve this object.
The first reservation which I venture to make is this. Licensees and invitees 477 become visitors under the Bill to whom a common duty of care is owed. Less regard will have to be paid in future, therefore, to the category to which the visitor belongs. But as it diminishes the importance of the category to which the visitor belongs, the Bill, as I understand, enhances the importance of the purpose for which this visitor is invited or permitted by the occupier to be on the premises.
I think that it is rather interesting that the purposes for which a visitor is on the premises is not treated in the Bill as a circumstance… relevant for the present purpose …under Clause 2 (3). It is contrariwise set out as a primary element in the duty of care referred to in the previous subsection. What does that mean? As I see it, it means that out of this Bill, when it becomes law, there will develop a body of case law determining "purposes" under Clause 2 (2) which will give rise to just as many refinements, and narrow—it may be artificial—distinctions as formerly characterised the treatment of the categories of licensee and invitee.
The effect of this, of course, is important, because until this change in the law, once a visitor was placed in his appropriate category as an invitee or licensee there were clearly defined duties of care owing to these respective classes; but now, as I see it, there will be substituted for these two clearly defined duties of care to the old categories a veritable plethora of graduated duties, all within the scope of the common duty of care, but determinable by reference to the multitudinous purposes for which visitors are on premises. That general, and it may be thought somewhat venturesome, comment I would put forward as a reservation in the welcome that I give to the Bill.
A second reservation is this. In paragraph 31 of the Report of the Law Reform Committee there is posed the question whether the conventional categories are exhaustive. My hon. and learned Friend mentioned this point, but I venture to refer to it again. In that paragraph the Committee appears to doubt whether the conventional categories were exhaustive. In view of this doubt which this very distinguished Committee has placed on the record, one asks why, under the Bill, "visitors" is a term 478 confined to persons who would be treated at common law as licensees or invitees. Why, in other words, is not the duty expressed to be owing to any person lawfully upon premises?
As has been pointed out, a licensee on premises may become an invitee if his attention is attracted by something which the occupier has a material interest in his being attracted by. If he goes on to premises for purposes which it is explained to him are not regarded by the occupier as legitimate or proper, may he not then become equivalently something less than a licensee? I venture to think that, in view of the doubt expressed by the Committee, the Bill may err in confining the common duty of care to the two categories.
My third reservation concerns the power of the occupier to restrict or modify his duty to a visitor under Clause 2 (1). He can do this "by agreement or otherwise". These words seem far too wide. One asks what is covered by the words "or otherwise". Can a warning notice modify or exclude the common duty? It is quite likely, I should have thought, that it can. The effect of "warning" is set out in Clause 2 (4) but, on the present wording of the Clause, it seems to me likely that the court will in many cases not feel free to get as far as a consideration of the effect of subsection (4). The court may well say that the notice modifies the occupier's duty initially by the effect of Clause 2 (1)?
Another reservation that I would make is this. There was a recommendation in page 41 of the Report which dealt with the case of landlords remaining in occupation of the access to premises which were let. It covers the forecourt cases to which reference has already been made. The recommendation is that the landlord should owe the common duty of care to any third party lawfully using the access, unless a more onerous duty is imposed on the lessor by the tenancy agreement. I ask myself whether that recommendation is fully implemented by the Bill, and I very much doubt it. It will be said, I think, that it is fully implemented by the combined effect of Clause 3 (1) and (4). But in the vast majority of what we call the forecourt cases the visitors are licensees of the landlord. That, in general terms, is 479 borne out by the decision in the case of Jacobs v. L.C.C.
On that view of the matter, one asks why the visitors to forecourts are not regarded as sufficiently covered by the general provisions of Clauses 1 and 2 of the Bill. One is put on guard by the fact that this class of licensee is referred to differentially, as it were, and the wording applied to them appears to be limiting in its effect. The duty is declared in Clause 3 to be owing to persons whom the landlord is "bound to permit to enter". One asks why this is so.
I have only two very short points further to put. There appears from paragraph 80 of the Report to have been some division in the Committee on the question to which my hon. and learned Friend has referred, whether the Bill should alter the law affecting child trespassers. It is rather interesting that this very important matter appears to have been the subject of divided opinion in the Committee. By a majority it was decided that the law should be left unchanged.
The present position, as I understand, is that an occupier must refrain from any act calculated to do bodily harm to a trespasser, and this requires, as the Committee observes, no more than ordinary civilised behaviour. I ask the question which my hon. and learned Friend has just asked: is this a high enough duty in the case of a trespassing child in all circumstances? The presence of an allurement to children in a place accessible to them may aid the inference of an implied licence. There is case law supporting that proposition. One asks whether it would not have been well for this Bill to deal with the point. I think it would have been well if it had.
The final reservation which I would express is this. In Clause 2 (5) reference is made to "risks willingly accepted." I doubt whether that will be found to be a sufficiently comprehensive treatment of 480 the class of case which, I think, the draftsman had in mind. It merely invokes the principle of volenti. I doubt very much whether the wording of it is apt to cover the cases of visitors who, having full knowledge of a danger, are in the position that they are not entirely free to avoid it. I have in mind the line of cases represented by Clayards v. Dethick and the recent case of Riden v. Billings & Son. It is, I think, very much an open question whether that short subsection covers sufficiently and aptly all that is required in that connection.
Subject to these points of doubt, I join in welcoming the Bill.
§ The Solicitor-General
I feel sure that the House will acquit me of discourtesy if I make no attempt to reply now to what are courteously called reservations to the welcome given to this Bill, for which I am very grateful to all hon. Members. I may, without discourtesy, call them Committee points. For my part, I look forward to discussing these matters in Committee, with a view to making the Bill, by our mutual efforts, as good a Measure as possible.
§ Question put and agreed to.
§ Bill accordingly read a Second time.
§ Bill committed to a Standing Committee pursuant to Standing Order No. 38 (Committal of Bills).