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Dáil Éireann debate -
Thursday, 16 Nov 1933

Vol. 50 No. 2

Workmen's Compensation Bill, 1933—Committee. - Debate Resumed on Amendment 2.

When progress was reported yesterday we were discussing this proposal, in the name of Deputy Costello, that the definition of dependency contained in sub-section (2) of Section 7 should be deleted, and that the law in that respect should remain as it is at present. In the course of that discussion a certain amount of unnecessary heat was introduced, and I think members of the Dáil, in their anxiety to score points in debate, began to lose sight of the question involved. I should like to ask that this question be reconsidered without that heat and with a view to arriving at a conclusion which will secure the enactment of the measure in the best form possible having regard to the circumstances. I am sure there are no members of the Dáil who feel it possible to make substantial polical capital out of a Bill of this nature and I should dislike very much that the Bill should be made the means of achieving political kudos or in any other way be used for the purpose of accentuating or emphasising Party differences. I think it was Deputy Dillon said yesterday that we are passing a Bill here which is likely to fix the law in relation to workmen's compensation for a number of years and that an opportunity of reconsidering whatever decision we make now may not arise for some time. Consequently it is undesirable that this decision should be taken on Party grounds, or for the purpose of securing any temporary Party advantage.

I have very carefully gone into the whole matter at issue since the Dáil adjourned last evening, and tried, as calmly as I could, to place before myself all the arguments on both sides. Having done so, I have come to the conclusion that no case for amending the Bill has been made. The suggestion was made that this sub-section embodied a reactionary proposal, that, in some way, it was an attempt to infringe the rights of the workers, and that the existing law was more beneficial to them than this Bill would be, when it became an Act. The most effective answer to the claim that the sub-section of the Bill embodies a reactionary proposal is that this was the first time that claim was made. Until yesterday, so far as I have been able to discover, nobody had asserted that this particular phrase was contrary to the interests of labour, and particularly, that claim has not been made by any Labour leader. The phrase was recommended in Great Britain by the Inter-Departmental Committee which the British Government established in 1923, on which there were prominent Labour leaders. These Labour leaders subscribed to the report. It is notable that they attached to the report an addendum of their own in which they dissociated themselves from certain recommendations, but they did not dissociate themselves from the recommendation in this particular matter.

The British Act of 1923 was passed and, so far as I have been able to discover, was passed in this respect, at any rate, with the approval of the Labour representatives in the British Parliament. In 1925 another British Act was passed embodying the same phrase, and again that phrase appears to have had the support of the Labour Party in Great Britain. The Inter-Departmental Committee on Workmen's Compensation which was established here in 1925 also included in its membership a number of prominent Irish Labour leaders. The report they submitted was an unanimous report and, in the absence of proof to the contrary, I must accept it that the Labour members of that Committee agreed to the recommendation made in this connection. I refer also to the fact that following the publication of this Bill I had an opportunity of discussing it in detail with representatives of Irish organised labour, in the form of a deputation from the Irish Trades Union Congress. Deputy Norton told us that if he had been present on the second occasion I met the deputation he would have raised this point. The fact is that it was not raised, although the deputation came very well briefed indeed. Consequently, it was not until yesterday I had any indication, from any source whatever, that the phrase it is proposed to insert in the Bill was considered objectionable to Labour interests. If that contention was made it was made yesterday for the first time.

What is the origin of this phrase? The first appearance of it occurred in a judicial decision in Great Britain, a long number of years ago, a decision subsequently reversed by the decision which was quoted here yesterday, which was given by Lord Halsbury in 1900. That decision of 1900 operated until the Act of 1923 was passed. It still operates here. The Committee which was established in Great Britain considered this matter, and in their report they did something which the Committee here did not do; that is, they set out the considerations which weighed with them when making their recommendation. I presume most members of the Dáil who have interested themselves in this matter have read the report, from which they will have seen that the phrase was adopted by the Committee from the Statute of the State of Massachusetts, where it was interpreted in the leading case in that connection in the following words:—

"The test of dependency is not whether the petitioner, by reducing his expenses below a standard suitable to his condition of life, could secure a subsistence for his family without the contributions of the deceased son, but whether such contributions were needed to provide the family with the ordinary necessaries of life suitable for persons in their class and position."

I quote that because the suggestion was made here yesterday that the phrase "suitable for persons in their class and position" was inserted for the purpose of limiting the amount of compensation which the relatives of a deceased worker might obtain. The fact is they are inserted there to ensure that the provision to be provided will not be the barest minimum which will sustain life, but an amount which will provide the necessaries of life, having regard to the class and the position of the person concerned. The interpretation which has been put upon that phrase in the courts in America and in the courts in Great Britain has operated to that end. It has astonished me that members of the House who have been suggesting that this phrase, which appears in the British Act, should not be inserted in our Act, have not attempted to support their contention by any proof that the operation of the sub-section in Great Britain has resulted in hardship. The proof is all to the contrary. Deputies who take the opportunities available to ascertain what are the facts in that regard will find that what I am saying is true.

I do not want to stress the argument that it is desirable that legislation here should conform to legislation in Great Britain. So far as I have been able to discover from Departmental records, the policy of my predecessor was to enact legislation in a form which would keep it as close as possible to the form in the British Act. Not merely was that decision made by my predecessor, but it was made by the Executive Council of which he was a member. That argument could, undoubtedly, be stressed too far. We have to bear in mind that, apart from one or two mutual companies, there are no Irish mutual insurance companies doing workmen's compensation at present. We trust that that position will be remedied at some stage. In so far as any litigation may arise out of this sub-section, it will probably be litigation initiated by English companies, that have had ten years' experience of the operation of the sub-section and are familiar with the interpretations placed upon it by the British courts.

The two main arguments against the insertion of the sub-section were (1) it was reactionary in so far as it was detrimental to the interest of the workers—and that argument I am quite satisfied holds no weight whatever; and (2) it would lead to a considerable amount of litigation. The second argument, of course, could be used against the whole Bill. If the sole purpose is to avoid litigation there would be no purpose in changing the existing law at all, which has been in operation for almost 30 years. The intention, however, is, and I gather that it is the agreed purpose of all Parties, to endeavour to improve the law and I suggest that this is an improvement of the law and that it secures that the compensation paid to the partial dependants of a deceased worker will not be paid as at present where no question of actual dependency arises at all and the only question at issue is the financial injury resulting from the workman's death. The view I hold is that it is difficult to justify payment for compensation to persons who are not, in fact, dependent for support on the earnings of the deceased workman. The purpose of the Bill is to ensure that those who were dependent for support on the earnings of a workman killed or injured in an accident should be provided for. The present practice resulting from the interpretation put on the law by judicial decisions is that compensation is paid in respect of financial injury, in respect of the pecuniary loss sustained by the relatives of the workman. In my opinion it should be paid on the basis of compensating them for the loss of support and should be qualified so as to ensure that support in that connection will not merely mean the amount of assistance which will support life but the amount of assistance which will support the life heretofore enjoyed by the persons concerned and by persons in the same class and position.

The issue is, I think, quite clear. The argument in favour of the existing law is that any change in it will give rise to litigation. That is the first argument. It is undoubtedly true that the exact interpretation of this section will only be fixed by judicial decisions and we have to bear in mind the fact that it is in operation for 10 years in Great Britain and that although decisions of British courts do not bind the courts here, nevertheless the knowledge of what these decisions are will deter people from seeking to get interpretations placed on the section in the courts here where similar attempts in Great Britain have failed. Consequently, I do not feel that the argument about litigation need worry us, particularly having regard to the fact that we are making in this Bill a number of changes in the existing law and the argument could be used equally effectively against any one of them.

The other argument is that the change proposed is reactionary. I deny that. I deny that it is in any sense a worsening of the position of the relatives of a workman who is killed at his work. The section has not operated in that direction in Great Britain and the usual legal records which I have examined show that quite clearly and put it beyond dispute. Deputies who advert to them will, I think, see that for themselves. On the other hand, we have the fact that the change does bring the law into conformity with the main ideal behind it—the idea of compensating people for loss of support through the death of a relative. The fact that it has been recommended not merely by an Inter-Departmental Committee here representative of organised labour and organised employers, that it has been recommended by an Inter-Departmental Committee in Great Britain similarly composed and that it has been the law in Great Britain for 10 years, shows there is some case for keeping the law in conformity or, at any rate, for not needlessly bringing it out of conformity, and I think the balance of argument is in favour of leaving the Bill unchanged and resisting the amendment that has been suggested.

When the Minister for Industry and Commerce rose to-day he began by making a very commendable appeal for the absence of Party spirit. Having made his appeal, he went on to suggest that Party feeling had manifested itself last night and that it was sought to make Party capital out of this amendment. I want to remind the Minister that before the Committee Stage was taken at all, I asked him to send this Bill to a Select Committee, the proceedings of which would be private so that we could discuss it as much as we wanted to quite freely and come back here with an agreed measure and that no one could be tempted to try to make Party capital out of it. In fact, he declined to do that, Heaven knows why. I want further to adduce as evidence of our entire disinclination to introduce the Party spirit into this, the fact that when we came to discuss this, Deputy Morrissey and I differed as to the desirability of this amendment, and made no secret of it. So far as this Party is considering this Bill in Committee, we do not regard the Party Whips as being on at all. We do not consider that there is any obligation on any member of this Party to vote one way or another except as his conscience dictates on a measure of this kind.

We are perfectly clear, those of us who have so far contributed to this debate, that this proviso is a bad proviso. It applies almost exclusively to all these family pool arrangements. Contrary to what the Minister thinks, the effect of this new sub-section, in my opinion, will be to reduce the claim of a bereaved person to anything in excess of bare necessities. Under the law as it stood, and as it stands, the measure of a person's damage from the death of a relative was the difference between what the maintenance of that relative cost and what that relative contributed to the family pool. Under the proposed new law, the measure of the loss will be so much of that difference as is necessary for the provision of the ordinary necessaries of life suitable for persons in his class and position.

Why does the Deputy say that? Has that been the interpretation put on the section in Great Britain or America?

Will the Deputy quote the authority?

There is the Peart v. Bolckow, Vaughan & Co., Ltd. case taken from the 1924 reports. I have not got the big book of case law in reference to this. I have only a couple of cases before me, and the principle was further decided and has been most authoritatively decided in the Young and Londonderry Collieries Company, 1924, taken from the 17th Butterworth Workmen's Compensation Cases, page 215.

What principle?

It is perfectly manifest from the decision that the principle accepted is that where it was held that the surplus of the person's contribution, after his maintenance had been deducted, was the sum which would provide the family with a measure of luxury over and above the bare necessities, they were not entitled to claim in respect of that surplus. You had, therefore, a situation where a family living in very humble circumstances— and mind you, the arbitrator was entitled to take into consideration his personal knowledge of the general conditions under which the class of person he had to deal with was living— and the arbitrator knew that he was entitled to take those circumstances into consideration, and to say that the difference between the maintenance of the deceased person and his contribution to the pool is £1 per week, but that any part of that over 10/- is not essential to the provision of the ordinary necessaries of life suitable for persons in the claimant's class or position, and he must therefore assess the damage done to the claimant on the basis of his having lost 10/- per week.

All we want is that the law should be left as it was and that the court should decide the measure of damage by the amount of the actual loss. Otherwise it seems to me we shall have a situation arising in which a poor family will not be entitled to as generous measure of damages under the Act as a family living in comparatively comfortable surroundings. As far as I can see that is the situation which the new proposal will create and has created in Great Britain. I think that in so far as it has been created, that part of the workmen's compensation code in Great Britain is wrong and we would make a great mistake in following it. The difficulty in this situation and the difficulty that is going to come up against us is, that in dealing with a question of this kind in Committee of the House, you will have lawyers—and I do not wish the Minister for Industry and Commerce to leap to his feet in a moment and say that I am placing myself in this category; specifically I am not—but you will have lawyers of distinction getting up and taking different views of what the effect of a section of this character is likely to be in the Irish courts. You will have them even taking different views as to what the consensus of opinion expressed from the judicial bench in England is. One will take the view that one case is peculiarly authoritative. Another will take the view that another case is peculiarly authoritative, and that if he had to go into court to put up one case, he could pull the court with that case, whereas an equally distinguished lawyer may take the view that by putting up the other case he could pull the judicature of this country to that view. All I wanted was that we should have a committee where counsel and practising barristers in this country could come before us and express their opinion on such questions as this—say what in their opinion would be the judicial interpretation of a section of this kind in the light of the general trend of Irish law. Even at this eleventh hour I think that suggestion might very profitably be carried out. I want to assure the Minister that there is not the slightest inclination on this side of the House to dragoon him or to pillory him as being on the side of the poor or against them. I am convinced that this is a bad provision although the Minister may be convinced that it is going to be a good provision. I am merely trying to express my point of view as the Minister is quite entitled to express his.

Notwithstanding the statement that I made last night to the effect that the signatures of the Labour members who sat on the 1925 Departmental Inquiry must not be taken as indicating that they endorsed everything in that report, the Minister comes along as fresh as ever to make the same allegation to-day.

Why must they not be taken as endorsing the report? Surely the assumption is that they agreed with the report they signed.

The Minister is not a child in politics by any means. I was a member of the Committee which appointed these three persons to the Inter-Departmental Committee. I know the problem that faced them when they came to the report and I know they disagreed with many of the recommendations contained in the report, but in order to get an agreed report they were willing to tolerate certain disadvantages in order to get certain advantages. Although they are not asked now to stand over that position, I am perfectly prepared in their name to take that report as it was signed by them with its advantages and to put up with its disadvantages. But as I said last night, we are not being asked to implement the report. The report has been cut down in certain important respects.

It has been improved.

The Minister knows perfectly well that the Bill is not making the provisions which were made in the report. If the Minister compares the recommendations in the report with the provisions of the Bill he will be more convinced than ever of that fact. We were perfectly prepared to take a Bill based on the report, but this Bill has deviated from the report in many respects. While we are prepared to take the advantages with the disadvantages of the report, it is quite another matter when you come to ask us to take the disadvantages of the report without giving us in the Bill the advantages which the report gave us. The Minister again said that this was the first he heard of this opposition. From the first we were opposed to this particular section of the Bill, so when the matter was mentioned last night——

It is the first time I have seen it suggested that Labour representatives were opposed to it, having regard to the fact that Labour representatives in Great Britain and in this country signed a recommendation making this change.

I have explained already that they signed the report taking its advantages and its disadvantages.

Did they do that in Great Britain?

I am not responsible for what they did there any more than the Minister is. The Minister has said that he did not hear of the opposition to this section until now. Again I say that I was chairman of the joint committee of the Trade Union Congress which examined this section and which prepared the brief which the Minister said the deputation had. I have already told the Minister of the circumstances which prevented my being there on the second occasion. I think that Deputy Dillon has shown that there is a very strong case for leaving the law in this respect as it stands, as it has stood for the past 30 years or for over 30 years. It seems to me to be almost impossible for anybody reasonably to argue that this section is put into the Bill for the purpose of assisting the workman or assisting the dependants of the workman because the whole phraseology approaches the matter from the point of view of limiting the compensation and the actual extent of the dependency by referring to "the necessaries of life suitable for persons in the class and position of the claimant." As Deputy Dillon pointed out in the case of the person who is contributing, over and above what he got back from the family, a sum of £1 per week, if it can be shown in court that only 10/- of that £1 is necessary to provide the necessaries of life suitable to the dependant's class and position, then it seems to me that the courts under this particular section will have to say: "You will only get compensation based on the 10/- per week, because in the view of the court when it came to construe this section, that was all that was necessary in your domestic circumstances to provide the necessaries of life." I should like the Minister to address himself to that particular point. If he examines the subject and adverts to that point he will have no hesitation in recognising that this section is put in definitely to restrict the facilities which were open to claimants in the past. Its only effect can be to make it more and more difficult for the dependants of a workman to receive compensation. It would seem that in future a person will have to go into court and not merely prove that he was partially dependent on a person who has lost his life, but bring in the family budget and show that what he was consuming were necessaries of life and that there were no luxuries in it. If there were luxuries in it, it seems to me that the courts, inevitably, will have to say in respect to the luxuries no compensation, and in respect to the ordinary necessaries of life some compensation, but there may be wide discrepancy between the view of one person as to what are ordinary necessaries of life and the view of another person. The family motor car might have to be scrapped by a decision of the judge.

That is why these words are put in there—to decide what are the necessaries of life having regard to the station of life occupied by the person concerned.

Surely, everybody who likes a motor car is entitled to have one—the farm labourer just as much as the professional man living on Merrion Square, the farmer who is able to buy an old family Ford just as much as the man who can afford to purchase a costly motor car. Everybody knows that, as a result of this, the family Ford is going to go, because the judge is going to say: "This is not a necessary of life, and it is a most intolerable thing for a man like you to be driving around the country in a motor car." All that restriction will be imposed under this particular section. I think that the Minister might well leave this 30-year-old judgment alone, and he would be dealing much more fairly with the people concerned.

There is one matter to which Deputy Norton has not referred, and that is that this particular amendment of the law in Great Britain took place in 1923 for the first time and, after that, a Labour Government was in office and no attempt was made to alter the law so as to restore what he describes as a 30-year-old judgment. If Deputy Norton looks at this 30-year-old judgment, the Main Colliery case, he will see, I think, that one of the matters which troubled the court was, that they found a difficulty in exactly understanding what was the meaning intended to be given to the word "dependant." One of the reasons they arrived at that particular decision was the difficulty which they saw in getting hold of some other standard with sufficient precision to enable it to be clearly understood and clearly followed, and to become a sort of working rule for courts subsequently in the interpretation of the section of the 1897 Act which was then under discussion. I would submit to the House, however, that we are now in this position, that while prima facie one would be inclined to agree—particularly lawyers—with the view of the court in that regard, circumstances are altered for us now in considering this suggested amendment here. First of all, you have the fact that in Great Britain 23 years after that decision was given, the legislature there—and apparently, from what the Minister has said, and his statement has not been contradicted, with the concurrence of Labour representatives in Great Britain—made this amendment in the law which really brings the law into conformity with what was the intention of the framers of this particular type of legislation. You have the fact, therefore, that that was done in England and was done, as the Minister has said, apparently with the concurrence of the Labour representatives.

While I do not want to suggest that we should be copying English legislation in matters of this kind, there is this very strong consideration which, I think, is very appropriate to this particular type of legislation and particularly appropriate in this very Bill: that the legislature in England, in considering legislation of this kind, has a much greater amount of material at its disposal to enable it to decide what is the proper type of legislation, what is fair legislation, and how the scales are to be balanced between the claims of the workmen and the obligations of the employers. In England they are, in some proportion, almost as industrialised as we are an agricultural community in this country; and while, as I said a moment ago, it may not be justifiable, possibly, to suggest that we should always look at their Acts in dealing with matters that we are considering here, I do suggest strongly to the House that, having regard to their peculiar position and the circumstances which obtain there, more than ordinary attention should be paid to an enactment such as this Act of 1923, followed by an Act of 1925 in England, which is now under discussion. Moreover, when, as appears to be clear, Labour in England which, again, has a much wider range of material at its command, I am sure, through its various organisations, unions and so on— when, as I say, Labour in England, which has ample material ready to be called on at a moment's notice on the most minute point of industrial legislation, has allowed and did allow that amendment to creep into the law in 1923 and 1925, I think we should give some weight to that consideration. Perhaps I should not use the word "creep." The amendment came in quite openly and, in the discussion in the Houses of Parliament, was not attacked or condemned as far as we know. Possibly, there may be some reports which show that it was attacked by British Labour representatives, but, so far as we can trace, British Labour representatives inside and outside the House of Commons in England allowed this 23-year-old decision to come into the law in England. That consideration alone, I would suggest to the Labour representatives here and to other members of the House, is something which ought to have some weight in discussing this section.

Following that, a period of two years elapsed, after which this particular section again came under review in the British House of Commons and was embodied in the Act of 1925. It was not embodied merely by reference, but specifically and verbatim re-enacted in the 1925 Act. Again, as far as we can trace, Labour representatives either inside or outside the House of Commons in England do not appear to have criticised it or to have condemned as reactionary those who were introducing it into legislation there.

What does all that prove?

The Attorney-General

That suggests to my mind this: As I said during my opening remarks, British Labour representatives are in a much better position, as are the British employer representatives and as are the members of the British House of Commons, to estimate the effects of a section such as this and in a much better position to consider the way in which it would operate and to examine the arguments for and against it when under discussion. Such an Act as this would have been intensely wider in its effects in England than it would be here. The effects must have been brought home to thousands more people there than they would be here. If Labour in Great Britain allowed this provision to pass without opposition and allowed it to be re-enacted after two years without opposition, I suggest to Deputy Norton that that is a consideration of some importance in deciding whether or not we should follow on the lines of the British legislature. He may not think so, but I commend that aspect of the question to the Deputy's consideration and to the consideration of the other Deputies who are taking this issue seriously. It is very easy to say that this is a reactionary provision and that it is unnecessary. Prima facie, the considerations I have mentioned would dispose one to the view that the amendment of the law made in Great Britain was not an unreasonable one. Experience of the working of the older judgment had shown the amendment to be not unreasonable. Ten years have elapsed since the new section was brought into operation in England and, in those ten years it was possible to test whether the fears expressed by one of the judges were realised. Lord Davy said:

"I agree with my noble and learned friend of the Woolsack that that is a much more satisfactory way of construing this Act—to look at the actual income and expenditure rather than introduce some vague and uncertain standard which it is impossible to lay down with precision."

That would appeal to a lawyer and it appealed to the court there. Approaching this question as a lawyer, one would say that that is a very sound reason for not departing from the law as it exists at the moment. But, with these views before them, the British Parliament did make this change in the law. Now, they have had ten years' experience of its operation in England. If the critics are relying on that argument—it is one they ought to be able to rely upon if they want to induce people of commonsense to take their view—they should be able to bring forward some statement as to the operations of this section in England. They should be able to show how far the courts have found difficulty in construing this provision, how far the law has been thrown into confusion and what anomalies have arisen by reason of the change condemned so vigorously by Deputy Dillon.

I have here, as I assume Deputy Dillon has, a recent Willis, in which the effect of this amendment of the law is summarised. Like the Deputy, I have not got the complete reports but I looked at the reports of some of the cases. So far as I can see, there was a certain volume of litigation in England about this provision. Although I shall hardly be taken as seriously wishing that litigation should be diminished, I do agree that it would be unfortunate if the introduction of this amendment were to produce a crop of litigation and throw the insurance companies, the employers and the workmen into a state of confusion as to the effect of the new section. Within the period of ten years which has elapsed since the introduction of this section, the courts have laid down certain principles. If Deputy Dillon examines the samples of the cases given in Willis, he will find that the new section in England does, in fact, carry out what was the intention of the original Act and that this decision of the House of Lords really widened the scope of the section beyond what its original framers intended. There do not appear to be many cases on the question in England but there are a certain number. The judges there have been able to lay down certain principles to guide the county court judges in construing this section. One thing that still remains as a first principle is that dependency is still a question of fact. I imagine that in ninety-nine cases out of a hundred—I was going to say in nine cases out of ten—this particular amendment will not produce a different result from what would have been produced under the other section. The Deputy may ask "If that be so, why change the law?" After all, this was progressive legislation and it did improve the position of the workers. Unless we adopt the principle that any person who suffers pecuniary loss by the death of another is entitled to compensation, unless we go the whole way on the lines of Lord Campbell's Act, it seems to be quite reasonable that some evidence should be required that the claimant was deriving benefit from the earnings of the deceased in the sense of relying upon that person for support. That is all the word "dependent" originally seemed to mean. That was what the first decision in England held it to mean. That was what the text writers held it to mean and it was only after this decision that the word got a wider meaning. They have in England gone away from that. They have enacted this provision without serious opposition from those who ought to be, who are regarded as being, and who, Mr. Norton must admit, would be the severest critics of any type of reactionary legislation affecting the working classes. That legislation has been ten years in operation in England. During that time, there was a Labour Government in office in England. So far as I am aware, no serious suggestion was made that that section should be repealed and a return made to the earlier provision.

The decisions of the courts here need not follow the decisions in England. When I say that certain principles have been laid down by the courts in England, I do not argue that the same principles would necessarily be laid down here. It is quite possible that different principles would be laid down by the courts here. But if anomalies arose or if hardships were brought about it would be quite possible to have the law again amended. I suggest that there is no really serious argument against following the example of a country which has more experience of industrial conditions than we have, and I think that the section should be enacted in the form in which it appears.

I want to say very briefly, in reply to the observations made by the Minister in his opening remarks to-day, that in putting down this amendment I had no intention of making any Party capital out of the matters that are involved in the amendment or in the sub-section, nor did I expect that any such considerations could possibly arise on such an amendment. They were very far from my mind and from my expectations and it came as a surprise to me that such considerations were allowed to arise yesterday. I may say that we have no intention of making this Bill a Party measure. I have only one intention and that is to do what I conceive to be in the best interests of the working people who are to be affected by this Bill. Might I say, without offence to the Minister, and I am sure he will take it in the proper spirit, that he is rather too much of the advocate for this Bill? Without entering into any consideration as to whether my observations yesterday to the effect that this is a reactionary measure were responsible for the subsequent heat or whether the Minister's observations about our hypocrisy were responsible, may I suggest that he should not be so much of the advocate for the Bill? He may possibly take up the attitude that this Bill is as much his predecessor's as his Bill.

The point is that every Party in the House wants to improve the Bill. We have discussed this matter at considerable length and, of course, we could, if we so desired, have a grand cabman's holiday here, those of us who are interested in the legal profession, reading cases from Butterworth and Willis and quoting other cases from the Irish and British Courts on the various sections. We could, if we wished, keep the Dáil going for a very considerable period in that way, but the fact of the matter is that we merely want to improve this Bill from the point of view of the working classes. It is a remarkable fact that the British House of Lords, in their decisions over the last 30 years, have in practically every instance given the most liberal interpretation to these Employers' Liability and Workmen's Compensation Acts and they have always given decisions in favour of the workmen. That is a remarkable fact, but it happens to be perfectly true, and every court leans towards giving a liberal interpretation in favour of the workman to any of the provisions of legislation of the character we are not enacting.

But if our courts, coming to construe this measure, find themselves in the position that the legislature here has had an opportunity of stating definitely what is to be the law, having regard to British decisions on similar legislation in England, then it may be that the courts here will find themselves fettered in their desire to give a liberal interpretation to this legislation in favour of the workman. This sub-section, so far from being what the Minister appears to think it is—and I think the Attorney-General supports him in so thinking—a matter of clarity and freedom from doubt, is quite uncertain, and the latest British decision on the sub-section has left the matter in complete uncertainty. The British House of Lords has refused to determine what exactly is the meaning of these words to which we take exception in this sub-section. We are now proposing to enact a sub-section which is left by a recent decision of the British House of Lords in a state of complete uncertainty as to its interpretation.

This amendment was put down by me for this reason, that some months ago it fell to my lot, in the course of my practice, to consider this question of partial dependency in connection with an actual case, and I had to determine the state of the law here and in England. I came to the conclusion that if ever a Workmen's Compensation Bill came into this House, and I had any control over it, I would see that this sub-section (2) would not get into the Bill. It was for that reason I put down the amendment. I convinced myself as an ordinary practitioner on the hazard that this was a bad sub-section from the point of view of the worker. It was not through any, motives of political expediency or Party capital that the amendment appeared on the paper.

I did not adduce the argument yesterday that this was a copy of the British section or that this measure is largely a copy of the British Act. I do not think that is an argument against the measure. I think in legislation of this character it is eminently desirable that, so far as possible, and so far as the differing conditions in the two countries allow, the legislation should be parallel here with what obtains in England. As the Attorney-General pointed out, they have great experience I of this class of thing in England and we may well benefit by that experience. My object is to enable the working people to benefit by the experience which the British people have had for years.

The Minister told us that he had convinced himself that no case had been made against the section. In putting forward that observation he showed himself to be what I have already said—I hope without offence to him—an advocate for this Bill. He is not in the position of being bound to stand over every line and section in the Bill. If it is pointed out to him now, as I believe we have conclusively pointed out to him, that this sub-section is against the interests of the working people and is taking away the rights of the partial dependants of working people which they have enjoyed for a period of 33 years, it is not an answer to say that, because the Labour Party here or in England have never objected to a similar provision, it should stay in. I think that is no argument. The fact that the consequences of this sub-section have not been brought to the consideration of the Labour Party may possibly account for the fact that they have not raised this matter. Now that it is raised I suggest it is a matter worthy of attention and should not be brushed aside lightly by merely saying that the British and Irish Labour Party have never raised the matter.

We feel we have made a conclusive case against the proposal in the Bill. When you are changing a state of affairs that has existed for the benefit of the working people for 33 years, it is the duty of the people making the change to bring forward a conclusive case in favour of it and it is not for those who object to it to be called upon to prove that the section is not going to work properly and in the interests of the working people. The Attorney-General advances the argument, as I understood him, that this amendment really gives effect to what was the intention of the legislature as far back as 1899.

I think I dealt with that argument yesterday when I said that this sub-section does not give effect to the intention originally of the legislature because the House of Lords in 1900 authoritatively declared what was the intention of the legislature, different to what is contained in this sub-section and as admitted by the Minister. This sub-section proposes to change the decision given by the House of Lords 33 years ago. But assuming that the House of Lords, in the year 1900, had stated "although we believe it to have been the intention of the legislature to have enacted something other than we are going to decide, yet they have enacted what we are deciding. In other words, we are deciding contrary to the intention of the legislature and to the strict letter of the law." Assume that they did that in 1900. In the year 1906 that same legislature, with the decision of the House of Lords before them and after-six years had passed, gave legislative sanction to that decision of the House of Lords. So that I am entitled to say this, that when the British legislature, in 1906, allowed the House of Lords decision to stand and to continue to be the law of the land, the intention of the legislature from 1906 onwards was perfectly clear. Now you are deliberately to set aside what was the intention of the legislature in 1900 and what was the practice in this country for the last 33 years.

The Minister said that these words, "suitable for persons in his class and position" were put in for the benefit of the worker. If, and in so far as they are for the benefit of the workman, I have no objection to them, but they were the same words that were used in the judgment that was set aside by the House of Lords in 1900. The House of Lords decided in 1900 to set aside these words in favour of the partial dependence of the working people. But assuming that they are in favour of the working man, and assuming that the intention of putting them in is in favour of the working people, the phrase that we object to is the phrase "provision for the ordinary necessaries of life." That is what we object to. That is the vicious portion of this sub-section, because it will impose upon the people who claim to be partial dependants of the workman, the necessity for coming into court and discharging the onus cast upon them by this sub-section, and proving that the money they got from the deceased workman was spent by them on the ordinary necessaries of life. It will be then for the court to determine whether the things in respect to which the money was spent were, in fact and in law, ordinary necessaries of life.

I do not know what any ordinary judge may decide to be the necessaries of life. The British House of Lords have left the matter in the air after ten years' experience of a similar sub-section. As the Minister has asked me to quote cases, I will do so. I would refrain from quoting cases in this Assembly, were it not that the Minister asked me. May I refer him to the most recent case on this or on a similar sub-section, the McArthur and Fife Coal Company decision in the House of Lords in 1926? That was after the 1925 Act had been some time in force, and after the 1923 Act had been in operation for some years. What is the result of this decision? Here is what the judgment says: "It would seem that the question of the effect of the statutory definition (that is, as to partial dependency) upon the method of calculating the compensation to partial dependants has yet to be discussed and has not been finally quoted by the foregoing dicta." So that the reason which is put forward by the Minister as one of the arguments which in this matter stand for themselves is that it is one of the sub-sections which bring the beneficial state of the law into force. It is bringing into force a state of law on which the British House of Lords has not yet finally decided.

I do not know yet where we stand on this matter. May I read an extract from this authority, an extract which will bring it home to the Deputies that this phrase is one of complete ambiguity and is one which will give rise to litigation which will require an authoritative decision of the Supreme Court of this country for its interpretation or definition? Here we have an opportunity of deciding definitely and authoritatively what ought to be the proper definition of this phrase and as to whether we should put this sub-section in. Yet, we are completely passing a sub-section the proper interpretation of which has not yet been decided by the British House of Lords. Here is the extract:—

"Assuming that a claimant brings himself within the statutory definition of a partial dependant, there arises the question whether the statutory definition has affected the assessment of compensation without determining the amount reasonably and proportionately to such dependants of the injured, for the person who has been a dependent of the deceased to any extent for the necessaries of life is entitled to be compensated not only for such loss but also for such luxuries on which he may have been dependent on the deceased."

Then they set out various aspects on which one says he is and another says he is not. If you put it into this sub-section you leave it still in the air.

I would ask the House to consider the position of anyone going into court on behalf of a working man and trying to prove his case and trying to bring himself within the sub-section. Bringing himself within the sub-section would be a considerable task. The position would be that it would be found that no one would be able to advise the dependants of a working man as to whether they have a good case. We are now going to put in this sub-section which so far from being properly and definitely construed with a definite and beneficial construction to the working people given to it, is a sub-section the construction of which is completely indefinite and indecisive at the present moment.

We have had a state of affairs here in this country for 33 years which has worked well. Practitioners know what they have got to prove. The judges are experienced in administering that law and the insurance companies know what they have to face. What is the case now for putting in a sub-section into this new Bill? It puts the whole matter into the melting-pot; it will leave people in a state of indecision and it will leave the working people in a state where they will not know whether they have come within the provisions for compensation or not. I fail to see how the Minister in view of the arguments brought forward here has convinced himself that this is a beneficial and clear provision. The Minister says he is convinced himself and his opinion is that this sub-section is something that would be beneficial to the working people and not to their prejudice. He may have convinced himself of that but the judges have not yet convinced themselves of it so far as a decision on a similar sub-section in England is concerned. This sub-section is going to take away the right which the partial dependants of the working people had for 33 years. In place of that you are going to put in a sub-section of which at the moment nobody is able to get a proper interpretation.

Question—"That the sub-section proposed to be deleted stand"—put.
The Committee divided: Tá, 62; Níl, 55.

  • Aiken, Frank.
  • Bartley, Gerald.
  • Beegan, Patrick.
  • Blaney, Neal.
  • Boland, Gerald.
  • Brady, Brian.
  • Breathnach, Cormac.
  • Breen, Daniel.
  • Briscoe, Robert.
  • Browne, William Frazer.
  • Carty, Frank.
  • Cleary, Mícheál.
  • Concannon, Helena.
  • Cooney, Eamonn.
  • Corkery, Daniel.
  • Crowley, Timothy.
  • Daly, Denis.
  • Derrig, Thomas.
  • De Valera, Eamon.
  • Doherty, Hugh.
  • Dowdall, Thomas P.
  • Flynn, John.
  • Flynn, Stephen.
  • Fogarty, Andrew.
  • Geoghegan, James.
  • Gibbons, Seán.
  • Hales, Thomas.
  • Harris, Thomas.
  • Hayes, Seán.
  • Houlihan, Patrick.
  • Jordan, Stephen.
  • Kehoe, Patrick.
  • Kelly, James Patrick.
  • Kelly, Thomas.
  • Killilea, Mark.
  • Kilroy, Michael.
  • Kissane, Eamonn.
  • Lemass, Seán F.
  • Little, Patrick John.
  • Maguire, Ben.
  • Maguire, Conor Alexander.
  • Moane, Edward.
  • Moore, Séamus.
  • Moylan, Seán.
  • Murphy, Patrick Stephen.
  • O'Briain, Donnchadh.
  • O'Doherty, Joseph.
  • O'Dowd, Patrick.
  • O'Grady, Seán.
  • O'Kelly, Seán Thomas.
  • O'Reilly, Matthew.
  • Pearse, Margaret Mary.
  • Rice, Edward.
  • Ryan, James.
  • Ryan, Martin.
  • Ryan, Robert.
  • Sheridan, Michael.
  • Smith, Patrick.
  • Traynor, Oscar.
  • Victory, James.
  • Walsh, Richard.
  • Ward, Francis C. (Dr.).

Níl

  • Anthony, Richard.
  • Beckett, James Walter.
  • Bennett, George Cecil.
  • Bourke, Séamus.
  • Brennan, Michael.
  • Broderick, William Joseph.
  • Brodrick, Seán.
  • Burke, James Michael.
  • Burke, Patrick.
  • Coburn, James.
  • Corish, Richard.
  • Cosgrave, William T.
  • Costello, John Aloysius.
  • Daly, Patrick.
  • Davis, Michael.
  • Desmond, William.
  • Dillon, James M.
  • Dockrell, Henry Morgan.
  • Dolan, James Nicholas.
  • Doyle, Peadar S.
  • Everett, James.
  • Finlay, John.
  • Fitzgerald, Desmond.
  • O'Leary, Daniel.
  • O'Mahony, The.
  • O'Sullivan, John Marcus.
  • Pattison, James P.
  • Reidy, James.
  • Fitzgerald-Kenney, James.
  • Haslett, Alexander.
  • Holohan, Richard.
  • Keating, John.
  • Keyes, Michael.
  • Lynch, Finian.
  • MacDermot, Frank.
  • McDonogh, Martin.
  • MacEoin, Seán.
  • McFadden, Michael Og.
  • McGilligan, Patrick.
  • McGovern, Patrick.
  • McMenamin, Daniel.
  • Minch, Sydney B.
  • Morrisroe, James.
  • Morrissey, Daniel.
  • Mulcahy, Richard.
  • Murphy, Timothy Joseph.
  • Myles, James Sproule.
  • Nally, Martin.
  • Norton, William.
  • O'Donovan, Timothy Joseph.
  • O'Higgins, Thomas Francis.
  • Rice, Vincent.
  • Rogers, Patrick James.
  • Rowlette, Robert James.
  • Thrift, William Edward.
Tellers:—Tá: Deputies Jordan and Sheridan; Níl: Deputies J. Brodrick and Bennett.
Question declared carried.
Question—"That Section 7 stand part of the Bill"—put and agreed to.
Sections 8, 9, 10, 11 and 12 agreed to.
SECTION 13.
Question proposed: "That Section 13 stand part of the Bill."

I do not know whether anything that really arises upon the Schedule referred to in this section would not be more properly raised on the Schedule than on the section.

What does the Deputy want to raise?

I want to raise the question of the Workmen's Compensation (Anglo-French Convention) Act of 1909. That is repealed by this section, but it may be dealt with on Section 69. I want to raise the question now with a view to seeing whether Section 69 adequately covers all the Acts referred to in this section.

Very well; better raise the matter now.

The enactments repealed by Section 13 appear in the First Schedule. The first mentioned is the Workmen's Compensation Act, 1906; the second is the Workmen's Compensation (Anglo-French Convention) Act, 1909, which was an Act passed to implement the Convention arrived at between the British Government and the French Government to provide for certain reciprocal facilities, I think, for British workmen who suffered injury under French jurisdiction, and for French workmen who suffered injury under British or Irish jurisdiction. What I want to ask the Minister, on this section, is whether provision is made in this Bill, or whether it will be necessary to make provision in this Bill to fill the gap that will be created by the repeal of the Act of Edw. VII, c. 16, and whether, when dealing with that question, he will consider reciprocal arrangements with other States along similar lines? At the present moment I do not quite know what the arrangements are as between this country and Great Britain in respect to workmen's compensation. I think this might be a convenient opportunity for the Minister to open that question and state what the exact position is.

I think that question would be more properly raised on Section 69, which permits the Executive Council to enter into reciprocal arrangements with other countries and on sub-section (2) of that section which particularly relates to the Anglo-French Convention, and in connection with which power is taken to enter into agreements.

The House will remember that in the Expiring Laws Bill, dealt with yesterday, several Acts were left standing although we knew they were being repealed by new Bills actually passing through the House. With that analogy it seems to me that it would be more expedient to allow this French Convention Act to stand pending the arrangement of a new convention. If we pass this Bill in its present form the benefits of the 9th Edw. VII, c. 16, will cease and there will be a hiatus between the passing of this Bill and the establishment of the new convention.

The manner in which a convention is implemented raises a question of national status. The proposed convention between the French Government and the Saorstát will replace the existing agreement between the British Government and the Government of the Saorstát.

But all that cannot be done by a turn of the hand. No doubt, owing to the friendly relationship between our Government and the French, everything will be done, but meantime these formalities have to take place. I would have thought the easier way would have been to make a new convention and then to repeal this Act. But to repeal the Act first and then to embark on a new convention seems to me a dangerous procedure if we are, in fact, deriving any benefit from that Act. I do not know—the Minister has no doubt examined the question—but there may be cases arising from month to month the remedy for which is found in that Act. If we adopt the procedure proposed in the Bill a situation may arise in which one or two individuals will be deprived of their rights simply as a result of the procedure which we saw fit to follow. I take it the Adaptation of Enactments Act carried over that.

It is very debatable.

My learned friend thinks it is very debatable. I do not know whether it is or not. I suggest that it carried over the conventions as well as the Acts of Parliament arising out of the conventions. Certainly, whether it did or not, it is a question to be considered. We ought to know what we are doing. Unless the Minister is quite clear that no anomaly will arise from the procedure which this Bill proposes to follow, I think he ought to drop this Act from the Schedule and allow it to be dealt with by a later amending Bill. However, there is no hurry about it. Between this and the conclusion of the Committee Stage the Minister can turn that over in his mind and when we arrive at the Schedule he can decide whether it is prudent to drop this particular Act out of the Schedule or not. The other one I wanted to mention was 8 and 9 Geo. V., c. 14. That is the Silicosis Act. Is that fully provided for in the new section contained in this Bill relating to industrial diseases?

It is fully covered.

Section put and agreed to.
Section 14 put, and agreed to.
SECTION 15.
(1) If in any employment personal injury by accident arising out of and in the course of the employment is caused to a workman, his employer shall, subject to the provisions of this Act, be liable to pay compensation in accordance with the provisions of this Act.

I move amendment 4:

In sub-section (1), line 17, after the word "accident" to insert the words "whether within or without Saorstát Eireann."

This amendment, I hope, will not give rise to any Party differences, although in the course of the discussion, perhaps, references will be made to Northern Ireland. It is to be hoped, however, that references to Northern Ireland will not arouse any heat or Party differences. The object of the amendment is to draw attention to the fact that if the section is allowed to stand without some such words as I have indicated in my amendment a state of affairs may arise whereby grave injustice may be done to workmen. The kind of situation to which I wish to draw attention would arise where a workman was employed by an Irish employer in the Irish Free State, doing his ordinary work in the Irish Free State, but in the course of his work it may become necessary for that workman to go either to England or to Northern Ireland. If, in the course of carrying out his work, he is sent by his employer either to Northern Ireland or to England and meets with an accident, admittedly arising out of and in the course of his employment, he will be debarred under this section as it stands at present from compensation. Take the case of a man living in some of the Border counties. He is employed by an Irish Free State employer under an Irish Free State contract. In the course of his employment he is sent with a consignment of cattle, say, over the Border—legitimately, let us observe in parenthesis. For the sake of this argument I assume that he would go there legitimately. In the course of his employment it becomes necessary for him to cross the Border, say, for one hundred yards and he meets with an accident arising out of or in the course of his employment one hundred yards over the Border. Under the section as it stands he gets no compensation. I do not think the Minister would like to see that state of affairs occurring under the Bill. It occurs to me as not being a proper state of affairs to allow to happen.

It arises in this way: In the year 1909, under a similar section in the Workmen's Compensation Act, 1906, a British workman employed by British employers was sent on their work to Malta and arising out of and in the course of his employment, as was admitted, he met with an accident. I forget whether he was killed or not, but, at all events, he was injured and he was entitled to no compensation because the Act had no extra-territorial operation. Without wishing to cast any doubt on that decision, it appears to me to be quite unreasonable. It is still more unreasonable when you have regard to the relations that exist between this country and England commercially and the daily intercourse that must take place between people here and people in England, or people here and people in Northern Ireland. If a man, in the course of his employment, is sent, say, from Lifford to Strabane across the bridge just across the Border and meets with an accident, he will get no compensation, although if he met with the accident one inch on this side of the Border he would get compensation. There is an actual case at present pending before the Supreme Court. It has been decided by the High Court, following this decision in England, that the Workmen's Compensation Act, 1906, has no application outside the territorial borders of the Irish Free State. That decision is the subject of an appeal to the Supreme Court.

We have, however, at the present moment an opportunity of putting the matter right and I suggest that we should take the opportunity of making clear whether it is or is not the intention of the Oireachtas that a workman employed in Irish employment, under an Irish contract, going to Northern Ireland in the course of his employment and meeting with an accident there arising out of and in the course of his employment should, or should not, be entitled to compensation. The actual case I am referring to was a case where a stable boy was sent by his employer, who is a trainer at the Curragh, over to Liverpool to the Grand National with a horse and, admittedly arising out of and in the course of his employment, he was injured over in England. The High Court here have held, following this decision, that he was not entitled to compensation. I suggest that it is unreasonable that that state of affairs should be allowed to continue.

The definition of workman is pretty largely widened by this Bill so to cover people with £350 a year and people of various kinds will be brought under it. I do not know whether there is any such thing as a commercial traveller going to England from an Irish firm, but I assume there would be such a person. If he meets with an accident in England arising out of or in the course of his employment he gets no compensation. If a man is sent with cattle to Birkenhead and meets with an accident on the Birkenhead Pier, he gets no compensation. If a man is sent from one end of a street to another in a town bordering on the Irish Free State and Northern Ireland, if he meets with an accident at one end of the street he gets compensation; but if he meets with an accident at the other end of the street he gets no compensation. It is for the House to decide whether that state of affairs should continue or not. I suggest it should not continue and I bring the matter before the House in order that a decision may be taken upon it. The amendment, in my opinion, is in favour of the workman. It is an amendment which ought to be accepted. Possibly in the form in which I have put it down it may be too wide. I think it is not too wide but other people may think it is too wide. I suggest, however, that some definite provision should be made in this Bill, now that we have an opportunity of making the wishes of the Legislature clear, and not leave it to the chance of a decision one way or the other in the courts. We have an opportunity now of making our opinion clear. I suggest that the House ought to make up their minds one way or the other and I urge that they ought to make up their minds along the lines I suggest in my amendment. That is a matter for the House, but I do suggest that they ought not to leave the section in the state of uncertainty in which it exists at the present moment.

Mr. Rice

I rise to support the amendment in the name of Deputy Costello. The test as to whether or not a person ought to be compensated is not the locus in quo of the accident which occurs to him. The test should be solely a question of whether it arose out of his employment and occurred to him in the course of his employment. I think it is unreasonable to say that a servant who is sent on his master's business outside the borders of the State, and met with an accident in the course of that employment, should not be compensated for it. You can conceive such a situation arising on the Border as a man working on one field of his employer's land, and meeting with an accident, being entitled to compensation because it is within the borders of the State, and a man meeting with an accident in another field being outside the protection given by the Workmen's Compensation Act. The same thing might arise in a house on the Border. A servant meeting with an accident in one room might be entitled to compensation, while a servant meeting with an accident in another room might not. The proper test is whether the accident arose out of his employment and in the course of it. I, therefore, support the amendment moved by Deputy Costello.

The purpose of this Bill, and the purpose of the Workmen's Compensation Act in Great Britain, and as far as I know in every country, is to provide compensation for workmen injured by accidents within the jurisdiction. I do not know why it is assumed that a workman who met with an accident in Northern Ireland or Great Britain would not be compensated. He is entitled to compensation under the British Act. The effect of this amendment, if accepted, would be to entitle him to get compensation twice.

Whom would he get it from under the British Act?

Against his employer.

Who is living outside the jurisdiction.

What about Alexander's case and Armstrong's case?

Sin ceist eile.

In that case the employer was not a national of the Saorstát.

That is why I say that Armstrong's case is a complete answer.

Allow me to suggest to the Deputy that he might be wrong. I just want to break the suggestion gently to him if I can—he might be wrong. The fact is that I am advised that a workman employed by an Irish contractor, say on a contract being carried out in Northern Ireland, and injured in the course of that work, is entitled to get compensation from that employer through the Northern Ireland court.

Against whom?

It is true that compensation awarded by a Northern Ireland court might not be remitted to the Saorstát, or vice versa, but that is a question of reciprocal arrangement. Power is taken under the Bill to enter into a reciprocal arrangement, and until such an arrangement is made there may be difficulty. I cannot see, however, that the difficulty would arise out of the type of case which the Deputy suggests.

I am loath to believe that the Minister is still so far adopting the role of advocate that he will not see the reasonableness of the amendment put forward here. The very answer he gave clearly shows that he is adopting that role. It is no answer. The Minister talks about reciprocal arrangements. Reciprocal arrangements will not cover the case I have mentioned. You find an accident, say in Northern Ireland, happening to an Irish Free State workman employed by an Irish Free State employer who lives in the Irish Free State. It seems to me a very peculiar thing to say that you have got to have a reciprocal arrangement with Northern Ireland to enable him to sue his own employer; that you have got to get him to sue in Northern Ireland an employer with whom he is living in the Free State; and that you have to have a reciprocal arrangement with Northern Ireland to enforce that judgment given in Northern Ireland against the employer living in the Free State.

I will give the Deputy an instance of a German workman enforcing a claim for compensation against a German employer in the Irish Free State—Messrs. Siemens Schuckert.

Who is the German employer? Siemens Schuckert Limited, Ireland.

Can you give me an instance of an Irish employer living in the Irish Free State, employing an Irish workman living in the Irish Free State, and that workman being forced to take an action in Northern Ireland against that employer living in the Irish Free State, going through all the machinery of service outside the jurisdiction in order to get a man with whom he is probably living brought into a foreign court, further machinery being necessary to enable that judgment to be enforced through the courts of Northern Ireland and through the Irish Free State courts against an employer with whom he is living? The thing is ludicrous.

I want to make a further point which I omitted to make originally. The 1906 Act applied as between the three countries—the whole of Ireland, England and Scotland—so that wherever an accident occurred to an Irish workman, whether in England, Ireland or Scotland, that workman was entitled to get compensation. If the accident occurred in England he was entitled to sue his employer in Ireland. This Bill takes away that right from him, a right which he had by reason of the three countries being politically one. In consequence of the political severance it has been decided that that right under the 1906 Act is gone, largely by reason of the fact that there is no machinery. That was the decision in the Armstrong and Alexander cases, but the decision in a recent case is that by reason of the operation of the 1906 Act, as kept in force by Article 73 of the Constitution, it operates only within the area of the Irish Free State. It seems to me to be utterly unreasonable to say that a workman employed by a farmer on the Border can get compensation if an accident arises in one field but cannot get it if an accident arises in another field.

With great respect he cannot, at the present time. He has to sue his employer. Where can he sue him? He cannot sue him in the Northern Ireland court because the contract is not made in Northern Ireland. Number two, he cannot serve his employer because there is no machinery for serving him; and, number three, how can he enforce his judgment in the Northern Ireland courts?

I am surprised at the statement of the Minister that he is prepared to leave a workman who meets with an accident outside the jurisdiction to obtain compensation in the British courts, considering that quite recently I had occasion to lay before the Minister for Justice the case of an Irish Free State employee working for a cross-Channel firm on a contract in the Saorstát, meeting with an accident and receiving compensation in the Free State court. The compensation was duly paid by the British firm as long as the contract was being carried on, but immediately they finished the contract and returned to Bristol they repudiated the compensation awarded by the Free State courts and refused to make any further payment. The local agents on behalf of that workman had to take any settlement they could get—a good deal less than the man was entitled to—because of the lack of machinery to enable them to compel respect for the court decision. If that is going to continue it will be very difficult to get any justice. I certainly think we ought to take the necessary precautions under this Bill to enforce the decisions of our own courts and protect a Free State workman who meets with an accident across the Border, without depending on the reciprocal conditions of the Northern courts.

Surely we are asking no more in this amendment than to extend to the ordinary workman what the Bill itself extends to seamen. Is not that so? Am I not right in believing that this Bill provides that if a seaman working in an Irish ship for an Irish master sustains an injury in Chinese waters he can notify the Consul— incidentally the British Consul—and that will be notice for the purpose of this Act, upon which an action can be based in the Irish courts to recover damages from an Irish master? Surely this amendment is on all fours with that? What we are asking for the ordinary workman is that without the intervention of the British Consul, he can start proceedings in the Irish courts to recover compensation from an employer for injuries sustained in the course of his employment. If the Bill purports to do that for a seaman what argument can the Minister adduce to refuse to do it for the ordinary workman, to whom an accident is more likely to happen than to a man in the mercantile marine? I suggest that with the analogy of Section 65 with the sub-section applying to seamen very little remains to be said.

From the Minister's remarks it would seem to me that his difficulty is the possibility that the workman might receive compensation under two Acts. If that is the only difficulty I suggest that it is not beyond human ingenuity to meet the situation, and to enable the Bill to be so drawn as to preclude the possibility of that happening. It is all right to tell a workman that the courts in Northern Ireland are open to him if he meets with an accident. You might as well tell a tramp that the Gresham Hotel is open to him. These people have not the ghost of a chance of getting in there. A workman meeting with an accident in Northern Ireland may have such impediments put in his way, when suing an employer for compensation, and then in enforcing judgment, that, in fact, he will get no compensation at all. It may be exceedingly difficult to get over these impediments. They may constitute such a formidable barrier that the employer may be able to defeat the purpose of the Bill, or the litigation which it would be necessary to institute might be of such a costly character as to deprive the man of portion of the compensation he would get if there were greater facilities at his disposal for prosecuting his claim.

Deputy Costello, with his legal experience, told us of these difficulties. A writ has to be issued against the employer who lives outside the jurisdiction of the courts and permission obtained to serve it. Then the employer has to be directed to attend within the administration, and when judgment is got it has to be "marked" in order to be enforced. An astute or an unscrupulous employer has many ways in which to seek refuge, while the workman is trying to get this huge machine to work on his behalf. It must be remembered that we are dealing with workmen, people whose energy and weekly wage are their only guarantee that they will not be in the workhouse. That is the kind of man who is being asked to go to a court outside the place where he resides to sue his employer. Very often the workman has not merely to fight the employer, but a wealthy foreign insurance company. I suggest that the Minister should look into the matter again and not make it possible for an unscrupulous employer, aided and abetted by a wealthy foreign insurance company, to deprive a workman of compensation that he would have got if he had sustained injury within the jurisdiction of courts operating in this area. If it is only a matter of preventing a person getting compensation twice, I am sure the Minister will be able to find words to get over the difficulty. To tell a person that he has a right of action in Northern Ireland or Great Britain, if he meets with an accident there while working for a Saorstát employer, is not giving him a fair chance of having at his disposal machinery which is at the disposal of fellow-workmen who happen to be employed in the area of jurisdiction of the Free State. The Minister should look into this matter again, to try to remove what will be an admitted handicap if the Bill is allowed to pass in its present form.

I think the case mentioned by Deputy Norton does not arise. It has been clearly laid down that a person cannot get double compensation for an accident.

I did not make that case.

That was the Minister's case. That case cannot arise. A person cannot get compensation twice for the same accident. I remember a case I had ten or 12 years ago where a man was killed. I served a notice under the Workmen's Compensation Act claiming £300 and, as the man had a large family of minors, in order to protect myself I issued a writ under Lord Campbell's Act. The insurance company lodged £300 under the Workmen's Compensation Act and then tried to stop the action under Lord Campbell's Act. The court refused to stay the case, stating that the company had not been asked to lodge the £300, that they could not bar the proceedings seeing that neither case had been tried. The court decided that double compensation could not be received. If compensation is given in the Free State or in Northern Ireland the decision must be accepted in one or the other place. The Act does not say where compensation is to be given. That is immaterial and, in that way, the Minister's difficulty does not arise.

The argument of the Minister in answer to the amendment was a perfectly fantastic one. He stated that the workman could sue in the court of the territory in which the accident occurred. In the case mentioned by Deputy Costello, that of a stable boy who was sent to Liverpool, and who brought an action in the English court, he had to find an English solicitor to bring the action, and to bring his employer over to have the question of right decided in an English court. The thing is grossly unjustifiable. It is putting a very serious, and often an insurmountable obstacle in the way if a person has to go to an English court, to get money for a solicitor to act there, and to bring witnesses over to have the case tried. It is also unjust to the employer who lives here, like the trainer at the Curragh, who was brought across to England to have it decided whether he was liable for the accident to an employee during the course of his employment. I do not understand the argument that was put forward by the Minister—if it can be called an argument. The obvious and the convenient way is to have the matter decided where the parties live. If a drover who is sent to Birkenhead with cattle meets with an accident, according to the Minister he has to go to England to bring an action and bring his employer over from this country to answer there. I say the argument of the Minister is fantastic. I do not understand why he put it forward.

Nobody wants to deprive the workman who meets with an accident in the course of his employment from getting compensation, but we do not want him to get compensation twice. That is the only question that arises, whether the enactment of this amendment is going to enable him to get compensation twice from the same employer.

Mr. Rice

Does the Minister suggest that a man injured in the circumstances mentioned, the stable boy from the Curragh, can bring an action in the English courts and get compensation there against an Irish employer, and then come back to the Irish courts and bring a similar action and again get compensation?

If this amendment is passed.

Mr. Rice

That is why I described the argument as fantastic. No court would listen to the second action in either country.

The point I want to make is that that will not happen. I suggest if this amendment is carried it could happen. I do not suppose anyone would suggest that the Bill should be so amended as to permit that. The purpose of this Bill is to provide compensation for accidents occurring in the Irish Free State.

Mr. Rice

Half a dozen words in the section to prevent any two claims being made.

Then I suggest that as this is a question of fact in one sense, we leave this matter over until the next stage and we will then have the question of the state of the law clearly set out for discussion. If there is a case for amending the Bill, it can be amended but it has got to be amended so as to ensure that the position will not arise which I understand the amendment will give rise to.

Let us get some indication of what the view of the law on the other side is. The case put by Deputy Costello is: A Saorstát employer has a Saorstát employee and he sends that Saorstát employee across the Border and somewhere in the Six County area that employee gets hurt. The Minister contends—does the Attorney-General agree?—that that employee can take that Saorstát employer into the Northern Ireland courts and get compensation? That is the Minister's contention. Does the Attorney-General agree? I do not think that there is any doubt about the law on that. Does the Attorney-General think that the Minister's statement is correct? That is the net point.

The Attorney-General

The Deputy is not satisfied with what the Minister has said that there is no intention to try to deprive a workman of any benefit it is possible to give him under this legislation. In view of what the Minister decided with reference to the matter I did not intend to join in the discussion at all. Deputy McGilligan has his own motives for wishing to have the matter pursued further. The Minister in making the statement he did make, is relying on the advice given to him by two lawyers who have considered the matter and, whether I agree or not with that, the position is that the Minister's action in postponing it until Report Stage, in view of what has turned up in the discussion, is the most reasonable way to meet it. I would hesitate to say that Deputy Costello would make a statement as to the law without having considered fully his responsibility in subscribing to a statement of the law such as he has made on this section. As to Deputy McGilligan's view of the law I would not attach any weight to it.

You have not given us your own view yet.

The Attorney-General

And as to what Deputy McMenamin said, it is obvious that he does not understand what is under discussion at all. He is talking about a completely different thing. Deputy Rice is as positive as he usually is, without realising the difficulties of this matter. There is one aspect of this which Deputy McGilligan, if he recollects the Report on which this legislation was originally based——

I am going to read you a page of it in a minute.

The Attorney-General

The Deputy, as usual, is furnished with a mass of detail for such a discussion as this. He is going to read a page of it, but perhaps I am going to anticipate him in the page I propose to refer to. In this matter of the effect which was created by the Treaty in regard to rights such as these, I think it was Alexander's case which first showed the difficulties which were created by the coming into existence of the Saorstát as a separate entity. In that particular case and in the Report on which this section is based, it had always been suggested and apparently, always adopted until Deputy Costello put down an amendment, that the way of dealing with this type of case was by some reciprocal arrangement between the different countries. So far as I read page 52 of this Report, it refers to the Alexander case, and refers also to Judge Hanna's evidence before the Commission. The suggestion was there put forward that the case as outlined by Deputy Costello, as I understand it, should be met by a convention.

"The witness suggested that the obvious remedy for difficulties of this kind was the application of a convention by agreement between the Governments concerned, and he referred to the Anglo-French Convention as a solution of the question of similar concern to English and French nationals.

The concluding portion of the judge's evidence suggesting the points to be covered by an arrangement of this kind and referring to the desirability of having similarity in the compensation laws of the countries concerned, may here be reproduced...."

and then reproduced are a number of cases. I think I am right in saying that one of the cases covered is the one which Deputy Costello has instanced here, so that when the Bill as drafted by Deputy McGilligan's instruction and direction, and with his approval——

It was not.

The Attorney-General

I suppose the Deputy wishes to disown it?

It was not so drafted. Remember that and speak accurately.

The Attorney-General

I understand the Bill to have been drafted years ago.

Your understanding is wrong when you think it was drafted under my instructions.

The Attorney-General

I understood that the Deputy was Minister?

The Attorney-General

In control of the Department of Industry and Commerce?

The Attorney-General

At the time this Bill was drafted?

The Attorney-General

And I understand that it actually went the length of getting into a White Paper?

The Attorney-General

And yet the ex-Minister wishes to disown responsibility for a provisional draft which took the shape of a White Paper and which went before the Executive Council as a White Paper.

I do not disown it. I say it was drafted without my instructions.

The Attorney-General

I do not understand what the Deputy is at.

I am not surprised.

The Attorney-General

With my little experience of government and my little knowledge of how Ministers handle matters, it sounds a most extraordinary statement for the Deputy to make when he says that he, as Minister, allowed a White Paper to go before the Executive Council for discussion for which he now denies responsibility.

The Attorney-General

The distinction may be too fine——

Mr. Rice

For you to understand.

The Attorney-General

The distinction between being a Minister in control of a measure which takes the shape of a White Paper and goes before the Executive Council and accepting responsibility for it may be too fine. "Being responsible for it"— perhaps the Deputy will accept that— that he was responsible for putting the measure in the shape which it took of a White Paper?

Yes, certainly.

The Attorney-General

And it contained this provision in the form in which it now stands and without the suggested amendment now put forward.

And it contains many minutes which show that it was a draft for discussion.

The Attorney-General

I am not aware that it contains any suggestion to meet this particular type of case.

I am not to be impugned because you do not know something. That would be a big list against me.

The Deputy's memory is defective.

I will stand criticism from anybody who knows the file but not from a man who is wandering.

Neither of them knows it.

Mr. Rice

They neither know the law nor the file.

The Attorney-General

My information is that the White Paper or memoranda in the Minister's Department for which he was responsible or any notes he has made on it contain nothing in the shape of Deputy Costello's amendment. Does the Deputy deny that?

I am going to speak on this. Go on.

The Attorney-General

He is not prepared to deny that statement.

I am not prepared to answer you in your present wandering state because you are not capable of enunciating correctly what you are pretending to think.

The Attorney-General and Ministers may be replied to, but not answered by way of interruption.

Nor can an attempt be made to jibe them into answering.

The Attorney-General

The Deputy is very sensitive. He calls "jibing into answering" the asking of a question in regard to a matter which he himself brought under discussion by challenging my statement.

The Attorney-General

He is very sensitive. I wish he would have regard to other people's sensitiveness to the extent to which he wishes to have his own sensitiveness regarded. I can see no reason for objecting to having this matter considered on Report and if the view which is put forward on the responsibility of certain officers, legal officers, that this amendment, if it goes in its present shape, may have the effect of enabling a worker to recover twice, if that danger is likely and can be avoided, surely the sensible thing is to let this discussion go over to Report.

I agree that it is proper that the Minister should consider this on appropriate advice before Report. I only wish to make the matter clear so that the consideration of my amendment may not be made on a false basis. The Attorney-General has stated that this White Paper that is supposed to exist contains nothing like my amendment. Of course it does not, because this decision on the meaning of the section has only been given in the last few months. It was certainly not given and never occurred to me when I was in office, and if I were asked for advice on the section, I would have given an advice contrary to the High Court decision. I am still in hopes that that decision may be reversed by the Supreme Court because I am still convinced that it is a wrong decision. I would have thought that the state of affairs that existed pre-Treaty would be carried over by Article 73 post-Treaty. The purpose of the amendment is to cover cases which cannot be and should not be covered by an international convention. The type of case covered by an international convention or by a reciprocal agreement is the case, say, where an Irish citizen is working for an Englishman or a Frenchman or a German and you want to get your rights against him. Say a German is over here and you want to get your judgment against him made effective as against his assets in that country. That is the type of case that should be covered by an international convention, but it seems to me the height of absurdity to suggest that in the case of an Irish employer working in Ireland, employing a workman who is an Irishman, perhaps living in the very same house with him or certainly living in the same town with him, that you should require an international convention in order to enable him to sue his employer in the District Court or the Circuit Court. That is not the case that is covered by the arrangement made in——

The Attorney-General

I do not like to interrupt the Deputy, but I would draw his attention to page 52 of the report. Unless I misunderstood him, the case mentioned in paragraph (1) is the case which the Deputy was referring to.

That would probably cover it, but that is not a case that requires an international convention.

The Attorney-General

Judge Hanna thought it was.

With the greatest respect to Judge Hanna if he intended to cover it by sub-section (1) I entirely disagree with him, but I do not think he did. My case is where you get a contract made in the Irish Free State with an Irish workman and an Irish employer living in the Free State, and where an accident happens just outside the borders of the State. It would be the height of absurdity in that state of affairs to have an international convention to do one or two things, namely, to enable the Irish workman to sue his employer in an Irish court or else enable that Irish workman to go solemnly outside the jurisdiction, cart his employer outside the jurisdiction, get a foreign jurisdiction and have an arrangement to make that foreign judgment enforceable against an Irish employer, against his neighbour——

The Attorney-General

Did Judge Hanna not think it necessary?

I do not care what Judge Hanna has said.

The Attorney-General

Is he not a recognised authority on workmen's compensation?

I am quite satisfied that No. 1 does not answer the case I am putting. I am quite satisfied that Judge Hanna—and I know that he is a recognised authority on those questions—would never suggest that you should have an international convention to decide a purely intraterritorial question, to enable an Irish workman to sue an Irish employer in Irish courts. I do not think he ever made the suggestion——

The Attorney-General

This is a quotation from him.

What is the quotation? You have not read it yet.

Might I interrupt this lawyers' garden party?

A Deputy

A garden party?

There are such things as bear garden parties.

There are a few people here who might be invited to the next garden party. May I put this question to the Attorney-General? It seems to me clear from the way in which the section is drawn that it is not possible for a Saorstát national employed by a Saorstát employer to sue that Saorstát employer in a Saorstát court if he meets with an accident say in Great Britain. I think that is clear from the Bill. Consequently, the employee, in order to get a remedy against his employer, must sue in a British court in a case of this kind. That procedure would constitute a hardship against the workman.

Can he do it at all?

Too many cooks spoil the broth and I am afraid too many lawyers will spoil this Workman's Compensation Act. Let us suppose that that Irish workman can sue that Irish employer in the English courts. The trouble to which the workmen may be subjected may, in some cases, provide a source of glee for the employer or the insurance company but suppose the Irish employer was quite agreeable to be sued by the employee in an Irish court in respect of an accident which happened in Great Britain, would it be possible for the court to hear that claim or would they have to go over to Britain to have the claim heard there?

The Attorney-General

They would.

It should not be necessary in the case of an agreement to go over to Britain and have the case heard there.

I should like the Minister, at any rate, to understand this point, because the Attorney-General has failed to understand it, before he comes to deal with it on the next stage. We have the extraordinary fact of the Attorney-General being asked his opinion on a matter of law and of his simply refusing to give it. He shelters behind some unknown lawyers who have given a certain advice to the Minister. One is tempted to ask whether they were Glasgow lawyers, but that might be rude in the circumstances. Here is the head of the profession, the titular head of the profession, in this House and he is asked this simple point, which is the basis of the Minister's case, and he cannot give an answer. The basis of the Minister's case is that if the amendment is carried in certain circumstances the employee will be unable to get compensation. What is the other way in which he will get it, as the law stands at present? Take the circumstances put up by Deputy Costello. A Saorstát employer has a Saorstát employee and he sends that employee across the Border and that employee gets injured across the Border. The simple question is put to the Attorney-General: Can that employee, as the law stands at the moment, sue the Saorstát employer in the British court?—and he cannot answer it or, at any rate, he has not answered it. He knows very well he cannot but he does not want to let down the Minister. Deputy Norton's argument proceeds on the basis that that individual has a right to get compensation but that he has a difficulty in going to the English courts. Would the Attorney-General bring himself to the position of venturing an opinion as to whether he has rights in the British courts in these circumstances? Let us imagine such a man getting over all the difficulties. Can a Saorstát employee, injured while in the Six Counties, take action in the British court against a Saorstát employer by whom he has been employed? It is a very simple point. The Minister says that he can, and if this amendment is passed he can then come down and get compensation here, and it is on that basis he is going to reconsider all this. The Attorney-General knows that that is not the state of the law. I suggest that if the Minister had read the report we would have been saved all this discussion. This whole page starts with the "Alexander" case. This thing refers to Deputy Costello's case. Mr. Justice Hanna said this, or is quoted as saying it:

"There were two underlying principles as regards workmen's compensation legislation which, by reason of the legal operation of the Treaty and the Constitution of the Free State, had become very far-reaching, namely, the position of the Free State, in international law, as a separate entity to be treated as in the same category as a foreign country, and the territorial application of the Workmen's Compensation Acts."

Mr. Justice Hanna is quoted here as the greatest authority on workmen's compensation, and I think it will be admitted that he is entitled to be so called. He continues:

"These resulted in two disabilities in the case of an ordinary Saorstát workman: firstly, that he cannot bring a foreign employer before the Saorstát courts...."

That is not the case we are talking about, but I want the Attorney-General to weigh this:

"...and, secondly, if his injury occurred without the Saorstát he cannot make the Saorstát employer liable."

Is that a clear statement of the law? It answers Deputy Norton's point. It is not a question of making him liable in the British courts, he cannot make him liable. Then Mr. Justice Hanna goes on to deal with the case of foreign contractors operating in the Saorstát, with which we are not concerned. The Attorney-General says that Mr. Justice Hanna recommended the application of a convention. Let us pause here. Mr. Justice Hanna is, by common consent, an acknowledged authority on workmen's compensation. Mr. Justice Hanna has given decisions in which it is clear that he has adverted to the new position in the Saorstát since the Treaty and its position in relation to the remnant of the United Kingdom. It is suggested here that this authority on workmen's compensation, this judge of ours with his knowledge of the repercussions of the Treaty upon the position of the two countries, considers that it requires an international arrangement to make or to enable the Saorstát employee to sue a Saorstát employer in the Saorstát courts.

The Attorney-General

I did not suggest that.

That is what is here, and the suggestion is that Mr. Justice Hanna was in favour of that. The Attorney-General runs away from it now.

The Attorney-General

I do not.

Let me read further. It is clear that when you do not pay attention to a document you can take a very absurd meaning from it. The report continues:

"The witness suggested that the obvious remedy for difficulties of this kind...."

The difficulties referred to here are those caused by the "Alexander" case and the case of foreign contractors and Saorstát employees and nonSaorstát employers:

"was the application of a convention, by agreement between the Governments concerned, and he referred to the Anglo-French Convention as a solution of questions of similar concern to English and French nationals."

Now we will take up the next sentence, which is as follows:—

"The concluding portion of the judge's evidence, suggesting the points to be covered by an arrangement of this kind, and referring to the desirability of having similarity in the compensation laws of the countries concerned, may here be reproduced."

The Attorney-General

I read that.

That is the Commission's comment. Here is what Mr. Justice Hanna said:—

"I would venture to make the following suggestions:—

(1) Every domiciled Irish workman who is injured while working anywhere either in or out of the jurisdiction for an Irish employer should be entitled to bring proceeding in Irish Free State courts."

There is a recommendation, and the Attorney-General tied that up with his recommendation for an international convention. I think he did.

The Deputy is only quibbling and wasting time. It is quite clear what is meant.

The Minister is so fogged about the matter that the meaning is not clear to him. The justice goes on to make other suggestions which ought to be covered and to which effect can only be given by agreement.

The Attorney-General

Why did you not put them in the White Paper?

I will come to the White Paper in good time. Do not draw malodorous red herrings across the trail when you are in a hole. Mr. Justice Hanna goes on as follows:—

"The consideration of the foregoing matters indicates, almost conclusively, that the compensation law in the adjacent States should be the same so far as the substantial benefits are concerned, though some difference as to procedure may be considered necessary."

That is the point as to whether there should be an equality as far as compensation is concerned. Then, the justice finally takes up this point again:—

"But there are other considerations. If we take what is called the ‘Boundary,' we find on either side of it considerable towns from which contractors may have occasion to send workmen over the Border to do work, and even many farmers have carting of produce or driving of stock into market towns over the Border, in doing which work their servants may meet with accidents for which provision must be made. In fact, there is a mobility of labour which in its daily routine cannot recognise the exact territorial limits of a State, and the rights of both workmen and employers should be established irrespective of this."

We are getting away from the convention, and we are getting definitely away from this absurd view sought to be imposed on a justice of the standing of Mr. Justice Hanna, that he thought that there should be an international arrangement to cover the case of a Saorstát workman meeting with an accident in the Six Counties and wanting to get compensation.

The absurd view of the International Labour Office!

The next paragraph speaks of that also. Does the Minister think that that refers to the case we are talking about at the moment? The Minister is in a national fog, and he should not try to drop into an international one.

The Deputy himself is in several kinds of fog.

The amendment is being resisted on the basis, firstly, that at the moment the law is that, in the conditions talked of by Deputy Costello, that employee cannot claim compensation—Mr. Justice Hanna said he could not. The second contention is that Mr. Justice Hanna recommended that that type of case should be covered by an international convention.

And so did the International Labour Office.

And so did they! But when you try to make a fool of them the case is different. In the one case it might not matter so much, but in the other case you are guilty of something like contempt of court. It will not weigh much either way with the world or with the nation. As to the White Paper, I challenge the Attorney-General, with all the information at his disposal, and with his fingers on the files, to produce any evidence to this House that that Paper represented the considered view on workmen's compensation.

It was prepared by the Executive Council.

The Attorney-General

The Deputy did not consider what he put up to the Executive Council.

He did, and the Executive Council thought fit to consider them occasionally, not like the Glasgow case, where the President did not think fit to consider the Attorney-General. Let the Attorney-General produce this White Paper, and let him produce with it the old much-thumbed Bill in typescript form and falling in pieces, and he will see the obvious reason why that skeleton measure had to be got into some form for people to consider.

The Attorney-General

You spent four years at it.

It would have been better to spend another four years at it than to wander into this sort of performance. If the Attorney-General talks about something I did, as if it were a serious recommendation of mine, let him produce the evidence. He has a habit of running away, I know, but since he has inaugurated this thing himself let him produce the evidence. Let him give us his standing on this whole matter. Is he yet able to tell the House what is the law on the simple point: a Saorstát employer, a Saorstát employee, the employee getting injured in the Six-County area? Can that employee claim compensation anywhere as the law is at the moment? If we can get an answer to that, we shall know how to proceed.

Are we to understand that Deputies opposite want this matter decided now or do they wish to have it left over for next stage?

We are open either to reason or to threat.

If the Attorney-General finds himself in a position in which he cannot make up his mind——

It is not a matter for the Attorney-General; it is a matter for me.

If the Attorney-General finds himself in a position——

It is the Minister who is responsible for the Bill.

I fully appreciate that and, if the Minister allows me to finish my sentence, I shall explain. If the Attorney-General cannot make up his mind as to what the law is and wants time to consider the matter——

Does the Deputy want a vote on this amendment now or does he want the matter left over?

If the Minister would address the Chair, he would obtain the information more readily than by making disorderly interruptions.

The Minister has asked whether the Opposition desire a vote now on this amendment or whether they desire to have the amendment left over.

And you want a prompt answer?

I should like to qualify my answer.

It is for the Opposition to give the answer, not for the Chair.

I do not wish to contest your ruling, sir, but, as I see the situation, we are entitled to debate this amendment.

The Chair is not ruling.

If the Attorney-General is not in a position to say now what the law is, and if he is prepared to defend the proposition that in order to afford the right to a citizen of this State to sue another citizen of this State in the courts of the State, an international convention is required——

The Attorney-General will certainly not learn any law from Deputies opposite.

If the position is as I have suggested, it would be better to postpone the matter until the Attorney-General has made up his mind. So far, the Attorney-General has declined to answer a direct question put to him— whether or not it is necessary to have an international convention to make it possible for one citizen of this State to sue another citizen of this State in the courts of this State.

The Attorney-General

It is not, and I never suggested it was. All I suggested was that, when this question was being approached by the Committee, Judge Hanna and those who considered it regarded it as a matter that might properly be made the subject of a convention before legislation was introduced. That was the reason I suggested that the matter might be reconsidered. In the case of extension of judgments—making English judgments enforcible here and our judgments enforcible across the water— legislation is required both here and in Great Britain. Before you proceed to legislate in such matters, it is usual to have a convention securing reciprocity. At the moment, we have not reciprocity with regard to extension of judgments.

Deputy Costello, if he were here, would admit that the question of dealing with the law and amending it has been several times considered, so as not to allow the British to occupy the favourable position they do with regard to the enforcing of ordinary judgments, having regard to the fact that they are not allowing us a similar privilege in their courts. This question is on the same sort of footing. Despite Deputy McGilligan's suggestion, I interpreted what Judge Hanna suggested on page 32, as this—that it was a proper subject for an international convention although, whether there was an international question or not, legislation would be required here. Before we embark on legislation, which will put certain people in a favourable position, we ought to consider whether we will get reciprocal arrangements with the other countries involved. That is all I intended to suggest and that is all I do suggest. That is the only question on which the Minister wants to have a postponement.

Deputy McGilligan, for reasons quite obvious, wishes to bring me into conflict with advice which the Minister has got. I want to protest against the attacks made upon me by Deputy Rice, in his sneering references, and by Deputy McGilligan. My attitude is quite reasonable and fair. I have just read here the opinion of two officers who are not practising lawyers, but who are lawyers. I do think that it is most unreasonable and unfair for these two Deputies to seek to involve me in an altercation with these officers. It would have been more fitting if some show of reason had been made by Deputy McGilligan. I imagine that if Deputy Dillon had sole charge such reason would have been shown, and I think the matter might be allowed to stand over so as to have the question of policy and any question of difference in the law determined at a later stage.

I am sure that there is no desire to introduce acerbity into this matter. But it does seem that we have difficulty in arriving ad idem. The difficulty we envisage does not call for an international arrangement——

The situation, as we see it, is one in which a workman might be injured and would have no remedy at all at law. He could not sue in the British courts, even if he could get his employer to go into the British courts, because there would be no contract within the jurisdiction. He would have no grounds for action even if he could get his employer to go across the Border. He could not sue in the Saorstát courts when he came home, because he is expressly excluded by statute from obtaining any remedy for an injury sustained outside the jurisdiction. All we are trying to secure is that that employee will have some remedy somewhere. There may be other matters arising which would be suitable subjects for an international arrangement, but these can be best dealt with under the section of the Bill which provides facilities for making reciprocal arrangements. But here is a situation in which an injured workman has no right of action in Northern Ireland, and is prohibited from taking action in Southern Ireland. The purpose of Deputy Costello's amendment is to give him in the Saorstát courts the remedy which the absence of contract deprives him of in the British court, even if he could bring his employer into that court.

The Attorney-General

Will the Deputy read Article 2, on page 82 of the Report? It deals with the point as to the convention.

That refers merely to the convention.

The Attorney-General

It refers to your point, and it shows that I am not wrong in saying that this is a proper point for a convention.

As to the point of a person securing compensation twice, we have no control in Great Britain or Northern Ireland or in France. How can we say, if we give the right of action here, that the claimant will not be able to get compensation in Northern Ireland as well? Consequently, there must be an international agreement.

If that difficulty were seriously present to the mind of the Minister, it would be very easy to amend the law further. However, if the Attorney-General and the Minister feel that it is better that the matter should be given further consideration, and if they consider the question with a view to incorporating in the Bill an amendment on the lines of Deputy Costello's——

Can we have a reciprocal agreement that it be given some consideration?

The Minister's suggestion being that it is an ill-considered amendment? The Attorney-General should take note of where the acerbity is coming from now. I prefer to overlook the Minister's interjection. I am perfectly certain that Deputy Costello and other Deputies here will have no reluctance to postponing the matter to the Report Stage, provided the Minister and the Attorney-General will look into it with a view to drafting an amendment to achieve the purpose we have in mind, over and above what they themselves purport doing by way of reciprocal agreement with Great Britain.

I do not want to prolong this matter. I merely want to give an example. I can assure the Attorney-General that there is plenty of available material in his office with reference to illegal trawling. I know it was the bane of my life for years.

And it is the bane of his life now.

With regard to illegal trawling outside the territorial limits in Saorstát waters, Saorstát fishermen, fishing by certain methods of trawling which are declared illegal, can be prosecuted and fined in Irish Free State courts and it does not require an international convention to do that. Neither would it require an international convention to enable a man to sue his employer, who is living beside him, in reference to a contract.

The Attorney-General

I never challenged that.

The object I am aiming at is a state of affairs that does not require an international convention.

Amendment 4 withdrawn.
Sections 15 to 18, inclusive, agreed to.
SECTION 19.
Question proposed: "That Section 19 stand part of the Bill."

With regard to Section 19, a variety of considerations arise. This is one of the sections which, above all, I wanted sent to a select committee. In Section 19 you have the critical words "for the purpose of his trade or business." These words have given rise to boundless litigation and there is every promise that they will give rise to boundless litigation in future. It is a source of very great regret to me that we have not been afforded an opportunity of studying these words with expert advice with the object of discovering some different formulae that would make their meaning clearer. The Attorney-General will remember that three alternative meanings have been adduced by the judicature for those words and eventually a kind of compromise meaning has been adopted which has done very little to clarify the situation.

The second thing I want to draw the Minister's attention to is with reference to the position of agricultural labourers. Normally, if an agricultural labourer is working for somebody who undertakes to do work, say, for a farmer, he has his remedy against his direct employer and the farmer. If, however, the sub-contractor proceeds to do the agricultural work with machinery, for some reason that commended itself to the British legislature it was decided that the employee would only have his remedy against the sub-contractor and that the employer would be discharged from liability. Why exactly that is carried over into legislation in this country, I do not know.

The third point I want to raise is this. Sub-section (5) provides: "This section shall not operate to prevent a workman recovering compensation under this Act from the contractor instead of the principal." In England the purpose of that sub-section was, I think, effected by a rule under the workmen's compensation rules which were provided for in one of the schedules—I have forgotten which of them. In the workmen's compensation rule 2, sub-paragraph (2), it was provided that the workman need not elect between the employer and the sub-contractor until a verdict was given. In Ireland, apparently, he must elect before he starts the proceedings. The rule was laid down in Ireland in the case of Myer versus the Dublin Corporation, in 1912, that as between the sub-contractor and the employer the workman must elect before he starts proceedings. If he starts proceedings against the sub-contractor, and the sub-contractor proves to be a bankrupt person, he cannot abandon the proceedings and go for the employer, because he is estopped the moment he opens proceedings.

In England the rule would appear to be the same as the rule that applies when he is making his election as to whether he will go under Lord Campbell's Act or the Workmen's Compensation Act. He is not debarred from changing until judgment is given. In view of the fact that the ruling in the case of Myer versus the Dublin Corporation has been upset by the workmen's compensation rule 2, sub-paragraph (2), in England, I think it might be as well that the Minister should consider adopting that view by statute in Ireland also. Otherwise the judgement in the case to which I have referred will stand. The particular advantage arising under the English rule is that the workman can actually make the principal and the contractor joint defendants and can, apparently, recover jointly against them. Here, of course, the workman is debarred from that remedy and I suggest to the Attorney-General and the Minister that they might take that matter into consideration, as well as the machinery question, if it has not already come to their minds.

As the Deputy is, no doubt, aware, we are not proposing to change the law in this respect at all. The whole of Section 19 is a reenactment of a section of the 1906 Act. It may be that it is possible to improve upon the verbiage, but those who have considered the matter, including the Inter-Departmental Committee, have not been able to suggest any alteration. I have no reason to believe that if we set up another committee, similar in constitution to the committee of 1925, it would fare any better in this respect. If the Deputy likes to try his hand at producing a form of words that will be more suitable than the words in the section, I shall be glad to consider them on the Report Stage. No suggestion has yet been made from any responsible quarter which could receive support. If it is desired to make the contractor and the principal jointly responsible, we can have that matter discussed upon the Report Stage, if an amendment is tabled. The position is that no recommendation to effect a change in that regard has been made, and, consequently, we are re-enacting the section of the 1906 Act without variation.

I take it the Minister and the Attorney-General will look into the question I have raised. If they do, I think they will find it is deserving of consideration. The Minister has not stated why he deemed it prudent to adopt from the British legislation the provision about exempting an employer where the sub-contractor uses machinery.

I think the purpose behind sub-section (3) is quite clear. If a person is employed by a threshing machine owner, then he is employed by the threshing machine owner and not by the farmer for whom the threshing machine owner at the time is working.

That is not the point. Surely the whole object is to preserve the right of the worker to proceed against the sub-contractor or employer. The exception is made where the sub-contractor works with machinery, ploughing and threshing and other agricultural work.

Machinery driven by mechanical power.

But the obvious thing is that it is only when it is a question of agricultural work that special exemption is given. It is not given in the case of any other sub-contract.

What is the difference when a man enters into contract with a farmer for threshing his corn and enters into a contract with the same farmer to build his house for him?

The Minister is missing the whole point. Special exemption is made for agricultural workers from the general rule of law.

I do not think the Minister knows. It is not clear why. The Minister is taking the section holus-bolus from the British Act, and he has no more idea of why he is doing it than he has as to why pigs do not fly. At the moment I cannot see the reason for this exception, and everybody in this Chamber knows that the Minister has not himself the vaguest reason or the vaguest idea of why it is so.

That sort of abuse will get us nowhere. When the Deputy is driven into a corner he spits out abuse. That is not argument. I explained the reason for this to the Deputy. The exception in this case is for the reason that the farmer himself does not own a threshing machine and he has to hire a threshing machine to get his work done.

Does he not own a plough?

When it is not driven by mechanical power the exception does not apply.

Are there not a number of men who use tractors for the purpose of ploughing? If that is the reason for the exclusion of agricultural labourers under this sub-section then this is an entirely erroneous exemption, and I propose to raise the question further on Report Stage.

Sections 19 and 20 put and agreed to.
SECTION 21.
(c) where the workman had entered into concurrent contracts of service with two or more employers under which he worked at one time for one such employer and at another time for another such employer, his average weekly earnings shall be computed as if his earnings under all such contracts were earnings in the employer for whom he was working at the time of the accident;

I move amendment 5:—

In paragraph (c), before the word "employer," line 37, to insert the words "employment of the."

This is only a drafting amendment.

Amendment agreed to.
Sections 21, 22 and 23 agreed to.
SECTION 24.
(2) Every Order under this section shall be made subject to the condition that it shall cease to be in force if the workman receives unemployment benefit.

I move amendment 6:—

To delete sub-section (2).

This section has apparently been brought into this Bill consequent upon the passage of the Unemployment Assistance Bill. As this stands I believe it is reproduced in the 1923 Acts in Great Britain. What I apprehended when I read this sub-section was this, that if you had a man who suffered injury and was awarded, say, 25/- a week workmen's compensation, the time might arrive at which he would become eligible for unemployment benefit or unemployment assistance. In order to become eligible for unemployment assistance, it was made very clear in the original Bill that he had to be fit and well and ready for work. A man might be fit and well and ready for work but still be suffering sufficiently from the result of his accident as not to be fitted for the work which he was accustomed to do. I felt that a situation might arise in which you would have an ordinary workman falling between two stools— first, his rights, under the Unemployment Assistance Bill and on the other side his rights under the Workmen's Compensation Bill. It seemed to me that this sub-section was unnecessary because it is here for the purpose of preventing a workman getting both benefits. But the moment a workman gets benefit under the Unemployment Assistance Bill or under the Unemployment Assistance Code, that opens the door for the employer to go into court and say: "This man on his own admission is fit for work; therefore my liability under the Workmen's Compensation Act ceased on the moment that he was fitted for work." And, immediately, the court would declare the man cured and suspend his claim against the employer.

Most people who are paying this unemployment benefit are large insurance companies with legal staffs continually on the qui vive, or else, individual employers who are carrying a burden they are anxious to get rid of at the first opportunity. The very first opportunity these people get—that is, the moment the man gets unemployment benefit—comes with the proof that he is fitted for work. They can come into court with that proof in their hands and ask to be discharged from the obligation to pay benefit under the Workmen's Compensation Act. But if you put in a sub-section such as this in the Statute it seems to me that a case might arise where you would find a workman getting neither one benefit nor the other. It is not a likely contingency but it is a possible contingency. It is quite impossible to have any insurance company or any big employer going on paying insurance for one day longer than the law demands. Therefore, if the Minister wishes it brought to an end he should leave to the employer to bring it to an end by some procedure such as I have indicated rather than bring in the Statute which we have here which might operate to deprive the workman of both benefits at the same time.

I do not know if the Deputy succeeded in making the point clear to himself. But he did not make it clear to me. The whole Section 24 is designed to provide this:—If a workman has been injured and recovers sufficiently from his injury so as to be able to undertake light work and he tries to get that light work and does not succeed, he can then go into court and if he satisfies the court that he has failed to obtain that light work, the court may make an order entitling him to receive compensation for the period as if he were totally incapacitated. Sub-section (2) provides that the order of the court becomes discharged if the worker receives unemployment insurance benefit. It is not possible that the worker can lose both. The position, in fact is, that if the worker has a claim to unemployment insurance benefit it may well happen, and perhaps would happen in a number of cases, that receiving the partial compensation which he is entitled to in any event, plus unemployment insurance benefit, he will be in receipt of more than what he was earning before the accident occurred. This section does not prevent that and it is not intended to prevent it, but it is intended to provide that where he is drawing unemployment insurance benefit he will only get the partial compensation to which he is entitled and not the special compensation under an order of the court which he could get if he proved that he was unable to obtain work which he was capable of performing. Ordinarily the position will be, I presume, that the order of the court will persist until the worker obtains light work. The worker may lose that light work again and become entitled to unemployment insurance benefit which cannot be withheld from him if he is available for work of any kind, is seeking it and is unable to obtain it. If he has the necessary credit in the Unemployment Insurance Fund, then he is entitled to unemployment insurance benefit. If his right to benefit became exhausted, or if he is unable to obtain any light work, he can go back to the court and again ask for an order under sub-section (1), but there is no possibility of his falling between the two stools. On the contrary, that sub-section is obviously fair. Even under that sub-section the position may well be that the worker will get more than he was earning before the accident occurred so long as the compensation claim lasts and he is entitled to draw unemployment insurance benefit.

Take the case of a man earning 40/- a week. If he becomes incapacitated he is entitled, on the basis of total incapacity, to receive 30/- a week. If he recovers sufficiently to be able to take up light work and, in fact, succeeds in getting a job, say, as a night watchman at 10/- a week, the difference between his earnings pre-accident and post-accident is 30/- and he is entitled to get 75 per cent. of the 30/-, that is, 22/6 or thereabouts. His position while he has the light work is that he is getting 10/-, plus 22/6. If he loses the light work and becomes unemployed he will be getting in Unemployment Insurance Benefit a minimum of 15/- and may be getting 25/-, which, added to the 22/6, will give him a total remuneration above that which he was earning before the accident occurred. This sub-section provides, therefore, if he is getting unemployment insurance benefit, that he does not get, in addition to the compensation he is entitled to, the additional compensation which is provided for in sub-section (1). That additional compensation is only payable if the workman is unable to obtain light work and is not entitled to unemployment insurance benefit.

If he has 35 stamps to his credit he gets 35 days' unemployment insurance benefit at the 15/- rate, and when that is exhausted he goes on to the Unemployment Assistance Bill.

No, the Unemployment Assistance Bill does not come into this at all. In the case of that Bill there is a means test, and what the workman was receiving, and was entitled to receive from other sources, would be taken into account. In the case of unemployment insurance benefit there is no means test. Irrespective of what his resources are he is entitled to unemployment insurance benefit in respect of the stamps he has to his credit.

What will happen to our friend under sub-section (2) when the benefit to which his 35 stamps entitle him is run out? Can he go back to the court and get his full incapacity restored to him?

That is in the discretion of the court.

I want to get this matter made clear. I am not at all satisfied that a person who is even partially incapacitated can go and draw unemployment insurance benefit. I take it that a person applying for unemployment insurance benefit is called upon to declare that he is available for, and able to take up work. Let us take the case of a man who works, say, on the roads. He is signing on for what? For employment. Supposing he is offered employment which is similar to that which he had been accustomed to do before the accident and he tells the manager of the local labour exchange that he is considered fit only for light work, is he going to get his unemployment insurance benefit? I am very doubtful, and I would like the Minister to look carefully into this matter.

He is entitled to get it if he is available for work.

But there is the question of his ability to work.

If totally incapacitated he could not draw unemployment insurance benefit at all. If he is partially incapacitated and capable of performing light work and makes a claim for unemployment insurance benefit, he is entitled to get it if he has credit in the fund.

In every case?

There may be borderline cases.

I would be glad if the Minister would look into this matter between now and the Report Stage. What the Minister has stated is news to me. A man goes in and lodges a claim for unemployment insurance benefit. In order to get that claim recorded he has to declare that he is available for, and able to work. When work is offered to him, work that he has been doing all his life-time, and he says: "I am unable to take up that particular job because the doctor says I am only able to do light work," what becomes of his claim? I know what becomes of it if the Minister does not. I know that he does not get benefit, and in saying that I am sure every member on the Labour Benches who has practical knowledge of the matter will agree with me.

The strict interpretation which the Deputy has given means that nobody who is not fit in physical health can get unemployment insurance benefit.

The Minister himself gave an extreme case. I do not think either is correct.

The Minister says that there is no means test for unemployment insurance benefit. Deputies, I am sure, will be glad to hear that. The matter has been raised many times in this House, and questions have been addressed to the Minister's Department about a means test being applied to those seeking unemployment insurance benefit. It seems to me that there is no possible chance of a workman drawing in unemployment insurance benefit and in an award from the court more than he would get through an ordinary maximum award from the court.

I gave the Deputy an example.

I do not think the Minister was right in the example he gave. It seems to me that if the Minister is going to persist in his present attitude cases will certainly arise where men will be victimised.

In any event there is no case for the amendment because if he does get unemployment insurance benefit, then he is all right. The Deputy's argument is that he may not get it.

I want to get the Minister clear on the point. I am afraid that he has not been properly advised, that a man can go to the local labour exchange, a man who is not able to take up the work that he ordinarily does, and having refused that work because of his inability to do the particular job offered, be allowed to draw unemployment insurance benefit. If the Minister argues that such a man will be able to draw unemployment insurance benefit, then I am afraid he has very little practical knowledge of what goes on.

That does not matter for the purpose of this amendment because sub-section (2) only deals with the case of a man who succeeds in getting benefit. If he has succeeded in getting benefit there is no case for continuing the additional compensation which sub-section (1) makes provision for.

Not as long as it is additional. Suppose one is substituted for the other. Let us take a man who is injured and judged to be partially incapacitated—who is declared to be fit for odd jobs—an odd-job man. He proposes to satisfy the judge and the arbitrator that he has made attempts to get light work. This section says the judge shall deem him to be totally incapacitated and says that the provision will not apply if he draws unemployment benefit. If he draws unemployment benefit he should not be allowed to get it at all. But suppose we have power to make him elect to decide as between two funds. The choice as between the two is a most reasonable one. Surely the employer, in whose service he met the accident that led to his incapacity, should bear the burden. That is one step in many courses. It is quite true that if a person is so incapacitated as to be drawing health benefit, then it is not the same case for unemployment benefit at all. But I do not think it matters because of the opposite extreme. I think you can have people not so badly incapacitated, or who for some reason are drawing health benefit and it would be a moot point as to whether that person is able to work. The criteria for unemployment benefit are: willingness to work, available for work and fitted for work. That may be 100 per cent. ability reduced down to total incapacity. Suppose a workman applied for unemployment benefit and on being questioned he admitted that he had made application and had got the court to declare for the reason given, total incapacity. In these circumstances, and drawing this compensation, does anyone think that the officers of the Department or the umpire or the referee, would give that unemployment benefit? I doubt if they would. There are certain cases that might slip through. There are other cases where you would get a slipshod position. But in the main a man totally incapacitated, and who is drawing money upon that basis, would be ruled out. If we had the chance of putting him on the one fund, as against the other, should we not put him back upon the man in whose employment he suffered the incapacity rather than upon the other section of the community? Guarding always against the double drawing, if there is to be a choice to be made it would be more logical to bring him in under the Workmen's Compensation Act rather than to put him upon the Unemployment Fund.

The matter is not so simple as the Deputy thinks. He has pictured a sick man as distinct from an injured man who, perhaps, has lost his foot. There is nothing to prevent a man who has lost a foot from taking an insurable occupation carrying insurance benefits.

Suppose he does not get it?

He should get it. Take the case of a man who went into insurable employment, with a wooden leg, or with one arm, or some other physical incapacity of that kind. He enters an insurable employment for a year or two. Then the job closes down and he makes his claim for insurance benefit in respect of that period of employment. He must get it and, at the same time, he may be drawing under the Workmen's Compensation Act. Let me give an example. A man earning 40/- a week loses his right foot. He goes to the hospital and gets cured up to the point where he is capable of obtaining light work. He comes out to seek work and does not succeed in finding it. He can, under sub-section (1), come into court on the ground that he is not able to find work—not on the ground that he could not perform work, but that he could not find it. The court may make an order entitling him to receive compensation on the basis that he would be paid if totally incapacitated. Now if that person could perform light work and is seeking it he can draw benefit, and he will seek it and draw it. It will be in his interest to draw it.

If he is eligible.

He is eligible. If he is capable of performing light work and is seeking it.

What about his means?

There is no means test in unemployment insurance. Let me complicate the matter a little further. The person I have indicated, having got an order from the court, is drawing his full compensation. Then he gets a job as night watchman and he takes it. The order of the court is discharged. But he gets out of that the partial compensation that he was awarded originally. He gets wages for his work and he gets his partial compensation. He then loses the job of light work but, having accumulated a number of unemployment insurance stamps, of course he gets benefit.

It is not by any means a case of "of course."

There are sufficient decided cases to put it beyond doubt. I went to the fountain head of authority to make sure I was not misinterpreting the position. He is entitled to get his unemployment insurance benefit, and to draw the compensation that was awarded to him and which, subject to commutation, might be continued for life. Again, this insurance benefit goes on if he cannot find light work and makes an effort to find it, and another order can be made entitling him to full compensation on the basis that he would get it if totally incapacitated. The effect of the amendment is, on the one hand, to make it impossible for that person, if entitled, to draw unemployment insurance benefit. If carried, in the form proposed, the effect on a person to whom the court awarded full compensation would be that he could draw unemployment insurance as well and get the same order. That is the effect of the amendment.

No, no. Surely one of the qualifications for receiving unemployment insurance benefit is that the person should be able and ready for work. The ground under which he gets compensation under the Workmen's Compensation Act is that he has neither got, nor is fit for work. The moment he becomes capable he is no longer entitled to benefit.

The only persons covered by this section are people capable of certain light classes of work.

Work of a certain kind.

That person is entitled to draw unemployment benefit if he is in credit. The effect of the amendment would be to enable him to draw that unemployment benefit while, at the same time, getting full compensation under the court order under sub-section (1). That is obviously undesirable. Even on the basis of the lower compensation, if he has unemployment benefit, there will be a payment, which in respect of the worker with 40/- or thereabouts will probably be higher than his pre-accident earnings. The amount will vary from case to case, and will depend on the amount of compensation awarded. It is impossible to fix a general rule in that respect. In any event, it is in the interest of the worker, apart from the interest of the unemployment benefit fund, that he should be allowed to draw against it, even sacrificing for that right the small additional compensation which the court would award him, because it means more money for him so long as his right to benefit lasts. That is why I think the amendment does not quite achieve the purpose which the Deputy has in mind, nor is it in the interest of the worker.

Two points fall for consideration on this amendment arising out of the attitude adopted by the Minister. One is: Can a man who has lost a leg in an accident, who has recovered from the subsequent hospital treatment and secured light work, get unemployment benefit in the event of his losing his light work? Will the umpire, under the Unemployment Insurance Act, judge him to be capable of and available for work within the meaning of the Act? The second point is: Can a man, who does succeed in getting unemployment insurance benefit, exhaust his benefit, and is still unable to go into the open labour market as a result of his accident, go back to the court after his unemployment benefit is exhausted and get another order from the court under Section 24 (1)? That is a very important point. The Minister said that supposing a man suffers a partial disablement, becomes available for light work and gets it, and then loses the light work and gets unemployment insurance benefit, when he has exhausted his unemployment insurance benefit he may go back to the court and get another order under sub-section (1) and get put back on the insurance company as a totally disabled man. I should like to be perfectly sure of that. It is by no means unknown, when an insurance company has a man who is partially disabled on their hands for a long time, getting the compensation of a totally disabled man, that they give him a light job, keep him in it for a certain spell of time, and then sack him.

That may be so. In any event, I should imagine that a person who had succeeded in getting a light job, even a temporary one, would have difficulty in convincing a court that he could not obtain another light job, if he again claims.

I do not want to snatch any advantage of the Minister, but he will bear in mind that five minutes ago he said that a man in that condition could go back to the court and get put back on the original order made under sub-section (1). I think the Minister was mistaken in that detail. I do not think he can.

The Deputy is probably right. If he succeeded in obtaining work once, he is probably knocked out.

By sub-section (2)?

I would not be so sure that that is so.

I think it is one of the effects of sub-section (2).

Not sub-section (2). The wording of sub-section (1) is "that he has taken all reasonable steps to obtain and has failed to obtain such employment." It would be the interpretation of these words which would rule it, if he had in fact succeeded in obtaining employment, though only for a short period.

I would invite the Minister, in view of the points raised as a result of the introduction of the amendment, to consider the section in the light of the discussion that has taken place and see if steps cannot be taken on the Report Stage to redraft this so as to meet the kind of case which I had in mind when I proposed to delete sub-section (2). I think probably the best way to do it would be to submit the discussion to the experts of the Department and allow proposals to be formulated for the Minister's consideration. I might add that that work could have been done in a peculiarly effective way in special committee.

The Minister made reference to a point which I do not think very definitely arises, that is, if a workman goes to court and proves that he has taken steps to obtain and has got employment, or if it can be proved against him, that that ousts him. I think the ordinary practice is to reduce the award to a nominal amount but to keep the claim alive. I think Deputy Dillon was going on a different point. Look at sub-section (2): "Every order made shall cease to be in force if the workman receives unemployment benefit." That is intended to mean, I know, while he is in receipt of benefit, but that is not what the section says. It appears to me that the reading of that sub-section would mean that if a man got unemployment benefit his award ceases to be effective not merely during the time he gets unemployment benefit, but that if he once got it the award goes. I am sure that is not what is meant. Do the words "if the workman receives" mean while the workman is in receipt of benefit?

The workman need not claim unemployment benefit unless he has worked it out to be in his interest.

Supposing he has claimed once, then he has received benefit. Does the award then cease, or cease only for such time as he is in receipt of benefit?

A new order will have to be made by the court.

Is that intended?

Although the Minister believes that, in fact, if he went to the court he might not get it?

Not in the particular case mentioned by Deputy McGilligan. I am referring to a case where a man got work. He is referring to a case where a man got benefit.

That is the purpose of the amendment. I am prepared to leave the whole thing over and have it considered in the light of the discussion and let us reopen the section on the Report Stage.

I am not quite clear as to what is to be considered. I should like to look up and see if any peculiar legal decisions have been given arising out of this section and its operation in Great Britain. I have not heard of any peculiarities arising, but there may be some.

Supposing the Minister is satisfied that a practice has grown up, whereby insured persons have deliberately given light work to partially disabled employees for the purpose of knocking them out of an order made under sub-section (1), will he consider amending the section so as to prevent the practice in future?

I shall have to consider that very carefully, because there is no obligation on the employee. If the employee has got the order from the court, then there might be something in that. But the employee does not get the full compensation until he has got the order from the court.

Suppose the employee says that he is fit for a certain type of light work, and goes to the court and says he cannot get that kind of light work, and the court says, "We hold you to be totally disabled until you are able to get that type of light work." Then he is met by a man on the door-step who says, "I will give you a job of that kind." Immediately he must go and take it, and his compensation is reduced by the amount of the wages he gets for that light job. He holds the light job for a couple of months, and he is then sacked out of it. He is then in the position that he has his reduced compensation and no job.

He would have his unemployment benefit, of course.

He would have his unemployment benefit, but that is exhausted in a very short time if the man has been at work only eight or nine weeks. If the Minister is satisfied, as I think he will be if he inquires into it, that fictitious jobs are given just for the purpose of defeating the concession under this section, will he consider redrafting the section in order to meet that possibility?

I do not know whether we are discussing Deputy Dillon's amendment, or the section.

We should have been discussing the amendment, but the section has been covered as well.

I should like to say a few words on the section.

Perhaps the Deputy would withdraw his amendment first.

I withdraw my amendment.

On the section, I just want to point out to the Minister that he has in this instance let go of his sheet-anchor—the British legislation. The Minister, in answer to various amendments which we put forward, advocated the retention of his draft by reference to the British legislation. In respect of this particular section the Minister has, whether advisedly or not I do not know, overlooked the fact that the section which he has put in here has been amended very considerably in England, by the Act of 1931, so that in this section this legislation will lag slightly behind the British legislation. I should like to know what is the point in preferring this particular section to the later section in the British Act of 1931. I should also like to draw attention to one outstanding feature of the present section which has been altered in the British legislation of 1931. Under the section as it stands the onus of proving his inability to get light work is on the workman. Under the amending Act of 1931, it would seem that that onus has been shifted from the workman. If it has not been actually shifted to the employer, the burden on the workman has at least been lightened, because instead of using the words which are used in this section and which I think were used in the Act of 1925, Section 9, sub-section (4)—"If a workman who has so far recovered from the injury as to be fit for employment of a certain kind, proves to the satisfaction of the court that he has taken all reasonable steps to get light work. ..."—the section of the 1931 Act says, "If it appears to the county court judge that the man has taken reasonable steps ..."; in other words the burden is either shifted or lightened. We are proposing to keep the burden on the workman, and I should like to know why it is that the later Act of 1931 has not been adopted here instead of the provisions that are contained in sub-section (1) of this section.

In the Act of 1931 there is an additional right or a safeguard put in for the workman, which does not appear in this section. In addition to enabling the court to give compensation as for total incapacity on the failure of the workman to obtain employment, there is a provision that "if the court considers that having regard to all the circumstances it is probable that the workman would but for the continuing effects of the injury be able to obtain work in the same grade and in the same class of employment as before the accident..." I should like to know why that provision was left out in this section. I should also like to know the justification for it. It would seem that the amending Act of 1931 has desirable elements in it which should commend themselves to this House, and that those desirable elements should appear in this section. I would have put down an amendment, but before doing so I wanted to know why they are left out, so as to be able to see what case has to be met. I should like the Attorney-General, who has now taken the Minister's place, when considering the section as a whole, to look into this matter and let us know what the policy is, and why the British legislation—which is, as I have already said, the sheet anchor of the Minister —has been loosened in this particular instance.

The last point I wish to call attention to is the retention of this very vague phrase "employment of a certain kind." I do not know what that means. The British judges have refused to tell the British people what it means. I suppose we will have to wait until some courageous Irish judge tells the Irish people what it means, and in the meantime the legislature is going to tell no one what they meant when they put it in. I should like the Attorney-General to consider whether, having regard to such decisions as there have been on those words "employment of a certain kind," it would be possible to get appropriate words which would enable people to know where they stand. Fortunately again the British House of Lords has stepped in in favour of the workmen, and has given those particular words an extended meaning, although some of the judges were of the opinion that the extended meaning they proposed to give to those words was not intended by the Act. I do not know whether the Minister will go back to his second sheet anchor, the original intention of the legislature, and give a less extended right to the workmen because of the original intention of the legislature, cutting down the rights which have been given to the workmen by the British judges. Those are matters which should be enquired into before this section is again considered on the Report Stage.

The Attorney-General

The Minister is prepared to meet Deputy Costello's point. I am afraid the amendment made in the English Act has been overlooked. There is no intention of lagging behind the British section in regard to dealing with this matter. On an earlier section the Deputy stressed the fact that decisions in England have shown that the courts have been faced with certain difficulties and have had trouble in discovering what was the intention of the legislature. It would be much better, I would suggest, that the Minister should, on the Report Stage, endeavour to amend the section so as to get rid of the difficulties as discovered by the cases which have been before the courts. On the earlier section the Deputy suggested the radical cure of going back to the old section of the 1906 Act. With regard to this section and that earlier section. I imagine a much more sensible thing would be to put in amendments embodying words which would avoid raising the difficulties that have been discovered by the English courts. We ought to be able to arrive at some agreed amendment which would prevent, if possible, the same state of affairs arising as has occurred in England. I will undertake to have the matter looked into.

I do not know if I properly understood what the Attorney-General said. Certainly I am not paid for drafting amendments of a difficult character. The Attorney-General has an expert staff at his disposal. I think it was described in the Seanad as the most expert staff of draftsmen in the world. They can put it into shape. I have drawn the attention of the House to the fact, and I understood the Attorney-General to say that the Act of 1931 was overlooked. How could I know that the Attorney-General and the Minister overlooked the Act of 1931? Was I to put down the Act of 1931 as an amendment on the assumption that they had overlooked it? Before I put down an amendment I want to know the policy behind this section. Now that I understand it is really a mistake, it is a matter for the Attorney-General, the Minister and the draftsman. Certainly I am not going to do the job for them, if that is the suggestion.

The Attorney-General

I quite accept that. All I suggested was that if the Deputy wishes I will let him have a draft of the amendment.

Certainly. I thought the Attorney-General was suggesting that I should formulate the words.

The Attorney-General

No. I suggested that if the Deputy wished we could discuss it on the Report Stage when I will submit an amendment.

Sections 24 and 25 agreed to.
SECTION 26.
(3) Where the medical practitioner who has under the provisions of this Act relating to medical examination of workmen by employer's medical practitioner examined a workman in receipt of a weekly payment has certified that the workman has wholly or partially recovered or that the incapacity is no longer due in whole or in part to the accident, and a copy of the certificate (which shall set out the grounds of the opinion of the medical practitioner) together with notice of the intention of the employer at the expiration of ten clear days from the date of the service of the notice to end the weekly payment or to diminish it by such amount as is stated in the notice has been served by the employer upon the workman, the following provisions shall have effect that is to say:—
(a) if before the expiration of the said ten clear days the workman sends to the employer the report of a duly qualified medical practitioner (which report shall set out the grounds of his opinion) disagreeing with the certificate so served by the employer, the weekly payment shall not be ended or diminished except in accordance with such report, or if and so far as the employer disputes such report, except in accordance with a certificate given by the medical referee in pursuance of the provisions of this Act relating to examination of workman by medical referee;
(5) The section shall apply to weekly payments under the Workmen's Compensation Act, 1906, as well as weekly payments under this Act, and for the purpose of such application to weekly payments under the said Workmen's Compensation Act, 1906, the following provisions shall have effect—
(a) the references contained in paragraph (c) of sub-section (2) of this section to the provisions of this Act relating to examination of workman by employer's medical practitioner shall be construed as a reference to paragraph (14) of the First Schedule to the said Workmen's Compensation Act, 1906; and
(b) the references contained in the said paragraph (c) of sub-section (2) of this section and in sub-section (3) of this section to the provisions of this Act relating to examination of workmen by medical referee shall be construed as references to paragraph (15) of the First Schedule to the Workmen's Compensation Act, 1906.

The Attorney-General

I move the following amendments:—

7. In sub-section (3), page 12, line 44, to delete the word "workmen" and substitute the word "workman."

8. In sub-section (5) (a), page 13, lines 24 and 25, to delete the words "the references contained in paragraph (a) of sub-section (2)" and substitute the words "the reference in sub-section (3)."

9. In sub-section (5) (b), page 13, lines 30 and 31, to delete the words "contained in the said paragraph (c) of sub-section (2) of this section and in sub-section (3)" and substitute the words "in sub-sections (3) and (4)."

These are drafting amendments.

In amendment 7 it is proposed to substitute a word which means nothing for a word that means something.

Clearly it is taken from the wording at the side of Section 34. These are the exact words it is now proposed to put in.

The Attorney-General

I do not suppose the Deputy is making any case there.

No. I think it was blindly copied.

What is to be done? Is the amendment to be withdrawn, or corrected if there is power to do so now? No one raises any objection to a verbal alteration if it is permissible.

It is only a matter of drafting.

Amendment 7, by leave, withdrawn.

The Attorney-General

Amendment 8 is a drafting amendment.

The amendment purports to eliminate words that are not in the Bill.

It says paragraph (a). I have paragraph (c) in the Bill.

The Attorney-General

The substituted words will be correct.

It is a misprint. There are references to several paragraphs but not to the paragraph mentioned in the amendment. The amendment proposes to eliminate words not in the Bill.

Let us chance it.

I suggest that we should adopt Deputy McGilligan's suggestion to chance it.

I will alter the amendment (a) to (c.)

Amendment 8, as amended, and amendment 9 agreed to.

On the section the medical certificate takes effect unless before the expiration of ten days the workman sends to the employer a report from a duly qualified medical practitioner disagreeing with the certificate served by the employer. While it appears to be reasonable to allow ten days for the workman to arrange to have himself examined and counter evidence put in against the employer's medical adviser, very often ten days would be inadequate. In many cases, members of trades unions look to the headquarters of their organisation to protect them in cases of this kind. In practically all cases members of trades unions can get legal and medical advice when a difficulty arises relating to workmen's compensation. If an employer's medical adviser's decision becomes operative in respect of the termination of or the diminution of compensation within ten days it may seriously inconvenience the employee. A workman may be employed in Connemara or in Donegal but he may be attached to a trades union in Galway. He will have to communicate with the local secretary, who will have to communicate with headquarters, and then the union medical adviser will have to examine the man and the information will have to be conveyed perhaps to another area. It would be a hardship to fix ten days in a case like that. I suggest that there will be disagreement between the workman's and the employer's medical advisers, and that in order to avoid hardship, there is a good case for extending the period to 21 days.

The Attorney-General

I think that is a reasonable point. I agree that when a stipulation with regard to time is put into an Act it is sometimes discovered that it works a hardship. Had this been a matter of rule it would be open to the courts to extend the time. There is the difficulty that if this is embodied in the section it might be difficult for the courts to extend the time. I will suggest to the Minister to extend the period to 21 days or that some way of allowing a workman to escape from the strictness of the section may be discovered.

Section 26, as amended, agreed to.
SECTION 27.
(1) Where any weekly payment to a workman, whose incapacity is permanent, has been continued for not less than six months, the employer of such workman may, at any time after such workman has attained the age of 21 years and before he has attained the age of 50 years, apply to court for an order redeeming his liability to make such weekly payment, and upon such application being made the court shall order that such liability shall be redeemed as from the date of such application, by the payment by such employer of a lump sum of such amount as would, if invested on the date of such application in the purchase of an immediate life annuity, purchase an annuity for such workman equal to 75 per cent. of the annual value of such weekly payment.

I move amendment No. 10:—

In sub-section (1), lines 39 and 40, to delete the words "and before he has attained the age of 50 years."

Section 27 prevents a workman from commuting his liability after he has attained the age of 50 years. I do not think it can be argued that a workman of fifty years of age has not got all the faculties he will ever possess and I do not see why that provision should be put in. It may possibly increase the difficulties in the way of such a workman obtaining employment. Certainly it will not diminish them and I would ask the Minister's consideration for the amendment.

The limitation suggested is designed to prevent injustice arising. I must say that I do not feel very strongly on this but it seems to me that the balance of argument is in favour of the limitation suggested in the Bill. The lump sum which the employer must pay in order to release himself from liability to make a weekly payment is the sum which if invested on the date of the application in the purchase of an immediate life annuity would purchase an annuity for such a workman equal to 75 per cent. of the annual value of the weekly payment. Obviously, the lump sum which would purchase that annuity becomes much smaller as the age of the workman advances and if he is over 50 years of age the employer could release himself from liability by the payment of perhaps a comparatively small sum which would not be adequate compensation to the workman for loss of the weekly payment. Whether the fifty year figure is the proper point it seems to me that there should be some point at which we could say that the right to commute the weekly payment should not be operative and that the weekly payment should continue. Fifty seems to be a reasonable age having regard to all the circumstances but if the Deputy will suggest another age we can consider it.

I suggest that we are on two really different aspects of the proposition. I am suggesting that it is undesirable to prevent a workman commuting his payment after fifty years and that it may operate harshly against him. If the Minister wishes to take up the attitude that his only objection to this is that an employer will get out of his liability for a very small sum compared with that payable in the case of a younger man there is no reason why the Minister should not look into that question between now and the Report Stage.

There is another point in connection with this section. I think that Deputy Norton is rising to make it so I will forestall him by referring to it myself. It is the question of whether we should put into the section words which will give the workman the right to get a weekly payment transformed into a lump sum payment at the end of six months. As the section stands it gives an employer the right to apply to the court for an order authorising him to cease the weekly payment and to make a lump sum payment. The Bill says that if such an application is made the court shall make the order. The question is whether we should give the workman the same right to apply to the court for an order requiring an employer to make a lump sum payment in substitution for weekly payments. The practice, as I understand it, is that employers rarely avail of this power to terminate the weekly payments and representations were made to the Committee in 1925 by trade union representatives that the workman should have the right which I suggest. The suggestion was renewed to me by the Irish Trade Union Congress and the Labour Party and I am having the matter considered, but I should like Deputies also to consider it so that we could have a satisfactory discussion on it on the next stages of the Bill.

I would urge the Minister not to accept the amendment moved by Deputy Dockrell because——

He has not accepted it. He is considering it.

Has the Deputy withdrawn it?

I take it that the Minister is going to consider it between now and Report Stage.

Amendment, by leave, withdrawn.
Question proposed: "That Section 27 stand part of the Bill."

On the section, I want to urge the Minister not to be in any way generous towards the amendment moved by Deputy Dockrell when he comes to consider it because Deputy Dockrell says that he does not want to see the workman penalised. If his amendment is carried, quite conceivably it may result not only in penalisation but in thriftlessness on the part of many workmen. I think there is a very strong case, and especially in the case of a man of advancing years, for not permitting an employer or the insurance company to commute his payments by purchasing even an annuity. I would prefer the 50 years to be reduced rather than extended and I would suggest to the Minister that when he comes to consider the amendment, he ought to bear in mind that if he accepts the amendment it will be possible for a man of 55 or 60 years of age to have his weekly payment commuted by the purchase of an annuity which will yield him only 75 per cent. of his weekly compensation and that, at that age, in existing circumstances, it would be extremely difficult for him to obtain any other kind of employment, however light. There is a very strong case for making it impossible for an employer or the insurance company to say: "We will go into the court; commute the weekly payments and pay this man the equivalent of 75 per cent. of his weekly compensation." What you really are doing in the case of that man is reducing his weekly sustenance by 25 per cent. and while a man young in years could probably take that kind of risk a man of 55 or 60 years of age in existing industrial circumstances, ought not to be permitted to expose himself to that kind of risk. I hope that the Minister will stand at least for the 50 years figure. If there is any case, it is for reducing it to a lower figure.

I would draw the Deputy's attention to the fact that the evidence is that the employer rarely uses this right.

Then there is no case for Deputy Dockrell's amendment.

I suppose that is true, also.

Question put and agreed to.
SECTION 28.
(4) A notice of accident may be given to the employer, or if there is more than one employer, to one of such employers, or to any foreman or other official under whose supervision the workman is employed or to any person designated for the purpose by the employer.

In sub-section (4) words were introduced by the 1923 Act which had not been in the Workmen's Compensation code before. Sub-section (4) provides for the giving of notice and says:

A notice of accident may be given to the employer or, if there is more than one employer, to one of such employers or

and the following words were brought in by the 1923 Act:

to any foreman or other official under whose supervision the workman is employed.

There end the words introduced by the 1923 Act, and the remainder of the old section follows:

or to any person designated for the purpose by the employer.

It occurs to me that it is not a very satisfactory arrangement, that where you have a large factory and several hundred workmen working under different foremen, it ought to be sufficient notice for the purpose of this Act for a man to inform one of the foremen that he has met with an accident, particularly when you remember that it is quite legitimate to send your employer a letter telling him that you have suffered an injury, and all that anybody need do who meets with an accident in a factory is to send a registered letter to the registered address of the company informing them that he had met with an accident. They can also tell any person who is designated for the purpose by the company, or they can communicate the fact to any director or, I should think, to the secretary. The question is whether "employer" will include "manager," which I doubt. However, sub-section (5) provides that notice of the accident may be given by delivering the same at, or sending it by post in a registered letter addressed to, the residence or place of business of the person to whom it is being given. So long as a person has the right to do that and all the other things, I do not think he should be discharged from all further responsibility for notifying any firm with whom he may have been working. I did not put down an amendment on the matter, but I suggest to the Minister that he should consider that between now and the Report Stage, and if it is open to any abuse, or if it is creating any inconvenience he should consider seriously dropping it and reverting to the old form.

I should like to know from the Minister if he has definitely considered the absolute necessity for imposing upon a workman who is injured the obligation of giving notice in writing. In this instance, as in the section I referred to a few moments ago, the Minister has departed from his sheet anchor, the British legislation, because the British legislation provides that notice of an accident may be given verbally or in writing. It appears to me personally—and I am merely expressing an individual view— that a workman who is injured will not be very desirous of sitting down and writing a letter. In addition, he may not have twopence for a stamp, and fourpence for registering the letter, or he may not have the sealing wax to seal up the envelope. It occurs to me that it may impose undue hardship on a workman who is injured, to ask him or his wife to sit down and write a letter giving notice of the accident. I do not know why the requirement of notice in writing is put into the Bill. I know the Departmental Committee recommended it. I know it is desirable for the purpose of facilitating an inquiry into the accident. I know it is desirable for the purpose of enabling an employer to be in a position to inquire into the accident. I am also aware of the provision enabling the court to dispense with the notice in writing if the justice of the case requires it. At the same time it does impose what appears to me personally to be a rather unnecessary obligation on the workman to have to write a letter, get a stamp and where he is sending the letter by registered post, to get sealing wax and all the other paraphernalia necessary to the sending of a registered letter.

I cannot see that it is such a serious burden to ask the workman to give notice in writing of the accident within six months. It does not necessarily require a registered letter or a stamp. If he can get somebody to deliver it, he can have it sent by hand. Taking all the circumstances that may possibly arise into account, I think it is desirable in the interests of the employer that he should get formal notification of the name and address of the person injured, and the circumstances in which he was injured. That is what the employer gets, the name and address of the person injured, a statement of the cause of the injury, and the date at which the accident happened. It is I think accepted that it is hardly a burden on the workman to require him to give a brief statement of these particulars—the statement can be in a very rough form indeed—while it would be unfair to the employer to amend the section so as to delete this provision and the employer should have that information in any event. The section is clearly enough drafted to prevent any injustice arising because of this obligation. The fact is that we have the existing law, the recommendation of the Committee, and the sheet anchor to fall back upon.

The sheet anchor, the British legislation, I would again remind the Minister only requires verbal notice. I may point out that it is departed from in the sheet anchor legislation followed in many instances here. As a matter of fact the way the matter works out in practice is that no workman ever gives notice in writing or very seldom gives notice and the judge, taking a very human point of view, says to the employer: "You are not prejudiced in any way because you knew all about it."

If the employer can be proved to have known all about it, there is no necessity for notice.

When the Act says that you must serve notice in writing, it rather strengthens the employer in the case and enables him to go to court and say he has been prejudiced by reason of the absence of the notice in writing of such particulars as are required by Statute. Although personally I would prefer to see an amendment down to the effect that this notice should be verbal or in writing, I think that in practice the courts will probably ignore the necessity for a notice in writing. In effect, the workman will not be prejudiced because in 90 per cent. of the cases notice in writing will not be given.

Section put and agreed to.
SECTION 29.
Question proposed: "That Section 29 stand part of the Bill."

In the Report of the Departmental Committee set up in 1925 it was recommended that in any legislation to be introdced here the provisions of the British Workmen's Compensation Act——

What paragraph of the Report?

Paragraph 16, page 22. It was recommended that the provisions of the British Workmen's Comsation Act in respect of the installation in every factory of a first-aid outfit in charge of a responsible person, should be embodied in legislation here. Referring to the advantages to be gained from the installation of a first-aid outfit in every factory, the Committee stated that they understood that "under an arrangement with the British Home Office the insurance companies are keeping a classified record of all investigated accidents in order that appropriate measures for safety and prevention may be devised in the light of experience." The Committee goes on to say:—

"Too much importance cannot be attached to this subject and from the evidence it is clear that the value of prompt treatment, even of minor accidents, is appreciated. We consider that the adoption in the Saorstát of statutory provisions similar to those covered by the recent British Workmen's Compensation Act would be of advantage here and we recommend accordingly."

I can imagine the Minister saying that that is the kind of provision that should be made in a Factories and Workshops Bill but it may be a good while before a Factories and Workshops Bill passes through the House and becomes law. I suppose the same could be urged in Britain at the time it was embodied in legislation there but we have it from the Report that "too much importance cannot be attached to this subject and from the evidence it is clear that the value of prompt treatment even of minor accidents is appreciated." I would suggest to the Minister that even at the risk of its being a little clumsy, from the legislative point of view, there is a good case for the insertion in this Bill of a provision requiring every factory to instal a first-aid outfit so that injuries may be treated promptly and so as to prevent possible loss of employment to the workman and the payment of compensation by the employer.

The sole reason why the recommendation of the Committee is not being carried into effect in this Bill is the determination that the recommendation could be more appropriately dealt with in a Factories and Workshops Bill such as we have in contemplation. I hope shortly to be able to introduce a Bill to amend the Factories and Workshops Act and it was thought that this particular matter could be dealt with more suitably in that Bill rather than in this. I do not think the difference in time will be so substantial as to cause any serious inconvenience to anybody.

May we take it from the Minister that it is definite that he will introduce such a Bill?

Question put and agreed to.
Sections 30 to 43, inclusive, agreed to.
SECTION 44.

I would ask Deputy Dockrell to hold over his amendment to this section. I accept the amendment in principle and am trying to get an amendment drafted for the Report Stage which would meet the Deputy's point and my own.

I quite accept what the Minister has said and am prepared to withdraw my amendment.

Amendment No. 11 not moved.
Sections 44 to 51, inclusive, agreed to.

I move amendment No. 12:—

Before Section 52 to insert a new section as follows:—

Every redemption agreement, commutation agreement and agreement by way of compromise shall be submitted to the court for approval before registration, and where it appears that the lump sum is inadequate the court may make an order directing that such agreement shall not be registered.

There are two other amendments on the paper, Nos. 14 and 16, dealing with the matter raised by my amendment, and, perhaps, it might be considered convenient that the three should be discussed together. No. 14 is the amendment put down by the Minister, and No. 16 is Deputy Dillon's amendment, and they all deal with the same matter. I did deal in some detail with the question raised by this amendment during the Second Reading, and, as I do not wish to take up the time of the House, I do not propose to go over that ground again, because the Minister has accepted the principle of the amendment. However, I must say that I prefer either my own amendment or Deputy Dillon's amendment to that of the Minister, for the reason that the protection sought to be given by this amendment to the workman is really an attempt to reenact a provision in the Workmen's Compensation Act of 1906. I would like to refer to the words of the provision in the Act of 1906 on that matter. It is in the Second Schedule of the Act and provides that "where it appears to the registrar of the county court, on any information which he considers sufficient, that an agreement as to the redemption of a weekly payment by a lump sum, or an agreement as to the amount of compensation payable to a person under any legal disability, or to dependants, ought not to be registered by reason of the inadequacy of the sum or amount," the registrar may then refuse to record the memorandum of agreement sent to him for registration, and refer the matter to the court. I prefer that to the wording of the Minister's amendment, and I also prefer Deputy Dillon's amendment, for the reason that his amendment does specifically draw attention, as the Act of 1906 draws attention, specifically, to the question of inadequate amount. Deputy Dillon's amendment raises the same point by the use of somewhat different words. The Minister's amendment says that, where the county registrar has any reason which seems to him sufficient that the agreement should not be registered, he shall refer it to the court. I think it is important that the specific attention of the judge or the registrar should be directed to the adequacy of the sum. Therefore, I suggest to the Minister that he might either accept Deputy Dillon's or my amendment, or else that he might change the wording of his own amendment by bringing in a direct reference to the question of the adequacy of the lump sum to be given.

Another thing to which I should like to refer is that I think that in the case of agreements of this kind, which are to determine the workman's rights finally and which are of so much importance to him, they ought to be brought before the judge in every instance and not merely before the registrar. The position here is different from that which obtains in England. The enormous mass of work that an English court has to get through with regard to compensation claims would render it humanly impossible for the judge to deal with all these matters. That, however, is not the position here, and I do not think that any of our circuit judges would complain if the onus were put on him of going into this question of whether the sum were an adequate sum or not. Accordingly, I submit that the Minister might accept either Deputy Dillon's or my amendment or change his own amendment to bring in a direct reference to the adequacy of the sum. I would also suggest that he should change it so that the reference of this highly important question should go to the judge and not to the county registrar. I am aware, of course, that the county registrars are very competent people, but they have a lot of work to do, and I consider that it is important that this matter should be dealt with by the judge in court himself.

The suggestion I should make is that the amendment, No. 14, standing in my name, should be inserted in the Bill now, and that the question of amending that amendment might be considered between this and the Report Stage. I am not convinced that it would not be better to leave in the words "for any reason that seems to him sufficient" rather than refer to the adequacy of the amount. However, that is a matter we could deal with in relation to that particular point. I make the suggestion that if we insert the Government amendment now we can then have specific proposals in relation to that amendment.

Mr. Rice

I am satisfied with that.

I am satisfied to withdraw my amendment if the Minister, between now and the Report Stage, would inquire from his legal advisers as to whether the words "for any reason which seems to him sufficient" might not be interpreted to imply that the agreement would have to have in it some legal defect before the registrar could refer it to the court. That is just something to think about. It is a danger to safeguard oneself against, because, clearly, what the Minister has in mind and what Deputy Rice and I have in mind is that if the registrar thinks that a "fixer" has been trying to put over a quick one on a disabled workman, his attempt to do so ought to be prevented by the intervention of the court.

Amendment No. 12, by leave, withdrawn.
Section 52 agreed to.
SECTION 53.
(2) Such application shall state whether the workman who is a party to the agreement is an insured person or not and in the event of his being an insured person shall state the name and address of the approved society by which sickness or disablement benefit under the National Health Insurance Acts, 1911 to 1933, payable to such workman is administered, and shall also contain such other particulars as may be prescribed by rules of court.

I move amendment 13:—

In sub-section (2), page 21, line 5, to delete the word "prescribed" and substitute the word "required".

This is a purely verbal amendment.

Amendment No. 13 agreed to.
Section 53, as amended, agreed to.
Section 54 agreed to.

I move amendment 14:—

Before Section 55 to insert a new section as follows:—

(1) Where no notice of objection based on a statutory ground of objection to the registration of an agreement the subject of an application for registration under this Act is received by the county registrar within the time limited by the immediately preceding section, but the county registrar is, for any reason which seems to him sufficient, of opinion that such agreement should not be registered except in pursuance of an order of the court, he shall refer the application to the court which shall make such order in the matter as it thinks proper.

(2) Where the county registrar refers an application to the court under this section, he shall notify all notice parties of such reference and the reason therefor.

That is the amendment of which we have just been speaking.

Amendment No. 14 agreed to.
SECTION 55.
(1) If no notice of objection based on a statutory ground of objection to the registration of an agreement the subject of an application for registration under this Act is received by the county registrar within the time limited by the foregoing section, the county registrar shall forthwith register such agreement in the register of agreements and shall notify all notice parties of such registration.

I move amendment No. 15:—

In sub-section (1), page 21, line 51, to delete the words "the foregoing section" and substitute the words "this Act", and in line 52 before the word "forthwith" to insert the words "unless he refers such application to the court under the immediately preceding section."

This is a consequential amendment.

Amendment No. 15 agreed to.
Amendment No. 16 not moved.
Section 55, as amended, agreed to.
SECTION 56.
(1) If a notice of objection based on a statutory ground of objection to the registration of an agreement the subject of an application for registration under his Act is received by the county registrar within the time limited by this Act, or before such agreement has been actually registered in the register, the county registrar shall refuse to register such agreement and shall notify all notice parties of such refusal and serve a copy of such notice on all notice parties other than the party who gave such notice.

I move amendment 17:—

In sub-section (1), page 22, lines 10 and 11, to delete the words "or before such agreement has been actually registered in the register."

This amendment is also consequential on amendment No. 14.

Amendment No. 17 agreed to.
Section 56, as amended, agreed to.
Sections 57 and 58 agreed to.
SECTION 59.
Question proposed: "That Section 59 stand part of the Bill."

This section deals with the alternative remedies which are open to a workman who has sustained injury, or to his dependants in such circumstances as, in the opinion of his legal advisers, to make it possible to bring a claim under another Act. Let us take the case with which most of us are familiar—a case under the Fatal Injuries Act. A workman may meet with an accident in the course of his employment, which accident results in his death. His relatives are advised that it is possible to sustain an action under the Fatal Injuries Act. They make a claim under the Fatal Injuries Act. The employer responds by lodging the maximum amount he would be liable to pay under the Workmen's Compensation Act. It is provided in sub-section (3) that when compensation is sought under the Fatal Injuries Act, and the court decides that the employer is not liable, they may, after dismissing the action, proceed to assess compensation under the Workmen's Compensation Act. It is provided that they may deduct therefrom all or part of the costs caused, in their judgment, by the plaintiff bringing the action under the Fatal Injuries Act rather than under the Workmen's Compensation Act. That seems to me to be a most unfair way of garnisheeing the compensation to which the dependent relatives of the workman are entitled under the Workmen's Compensation Act. This deduction is made from compensation which is not the property of the deceased workman, but the property of his dependent relatives, and it is they who have to pay.

Why should they not?

I say that that is a most unfair way to reward the legal fraternity for their trouble.

You are not rewarding them, you are only paying them.

Why should they not pay?

If the Deputy suppresses his impatience I shall try to tell him. I can understand a plaintiff, when he loses his case, having the costs given against him and these being levied against his estate. But the compensation provided under the Workmen's Compensation Act for a wife and dependent children ought not to be garnisheed in this way simply because it is easy for the court so to do. If these people have any other assets, let these assets be made responsible in respect of the costs of the unsuccessful action. But the compensation provided for a widow and children in respect of the loss of their breadwinner ought not to be garnisheed so that the legal people can get their costs.

Is it not the widow who starts the suit under Lord Campbell's Act?

I do not know whether Deputy Dillon ever heard of the workman who fell down a manhole and who, by the time the legal people had finished making representations on his behalf and recovering damages for his injuries, was moved to inquire: "Was it you or I fell down the manhole?"

It is quite clear that his widow could not be involved until the man was dead.

Quite clear, but the widow might be advised by one set of lawyers that she had a good case under Lord Campbell's Act while another set of lawyers would be equally convinced that she had no case.

It is the jury you must convince.

Surely the jury is part of the court.

The moral is: "Stick to the Workmen's Compensation Act."

That is the employer's moral. If the employer is likely to be saddled with compensation under the Fatal Injuries Act he would, of course, prefer that the plaintiff should proceed under the Workmen's Compensation Act. The Deputy knows that perfectly well. What I want to ensure is that the widow and children, who are awarded compensation under the Workmen's Compensation Act, will not have portion of the compensation payable in respect of the death of the breadwinner garnisheed for the costs of an unsuccessful action under another Act. If these people have any other assets, these assets can be made liable for the costs, but, in many cases, these people have no other assets. While this Bill is intended to provide a definite scale of workmen's compensation, the person who brings an unsusccessful action under the Fatal Injuries Act will not get the scale of compensation provided under this Bill, but that scale of compensation less the costs incurred by the bringing of the unsuccessful action. I think that the compensation awarded under the Workmen's Compensation Act should be free from any charge for such costs. If they were, there would be fewer people advising dependent relatives to proceed under the Fatal Injuries Act. So long as compensation awarded under the Workmen's Compensation Act is available for costs under another Act, then the potential claimant will always be able to get abundant advice from the lawyers to proceed under the Fatal Injuries Act. The worst that can happen is that compensation will be given under the Workmen's Compensation Act and that that will be available for costs.

Why is that the worst that can happen? Cannot the action under Lord Campbell's Act be thrown out?

A person may lose under Lord Campbell's Act, but he will get compensation under the Workmen's Compensation Act.

He may get nothing.

The Deputy knows that that is a fairly remote "may."

It is not usual but it does happen.

The fact that compensation under the Workmen's Compensation Act is available for costs will result in many people getting advice to proceed under the Fatal Injuries Act. I suggest that the Minister should give consideration to the question of making workmen's compensation available only for the purpose intended—to provide sustenance for the widow and dependent children instead of being responsible for the costs of an action which possibly was the result of foolish advice.

I do not spring to my feet to defend the right of my professional brethren to get paid for the work they have done. Deputy Norton seems to have some "down" on the legal profession. I do not know why. Now that his colleague, the Leas-Cheann Comhairle, proposes to join us in that profession, I trust he will reconsider his opinion. I think that Deputy Norton can have no complaint against the judiciary or against either branch of the legal profession for the manner in which they look after the interests of the working people. They do not go out to make costs for themselves and they are not going to make costs for themselves by, as the Deputy seems to suggest, wrongfully advising the widow of a deceased workman to take an action under Lord Campbell's Act in order that they may be able to collar the costs that may be got out of compensation that subsequently would be awarded under the Workmen's Compensation Act.

I would like to point out to Deputy Norton a matter which he appears to have overlooked. Perhaps he has not read the section. I would like to point out that it is all in the hands of the widow. These costs cannot be given unless the widow puts herself in the power of the court to award costs. If the widow takes an action under Lord Campbell's Act, and if then it appears that she is going to fail in that, she may ask the court to assess compensation. She there and then says to the tribunal: "You assess my compensation under the Workmen's Compensation Act and at the same time in your discretion deduct the costs out of that."

Which will be the cheaper?

The widow of a workman can with great ease take an action under Lord Campbell's Act and, if she loses, the defendant has a judgment for costs against her, but that judgment for costs is of absolutely no practical use in 99 cases out of 100 or in 999 cases out of 1,000. She will not have any assets. Under this section she can only be made liable for the costs if she walks into the lion's mouth, hands herself to the tribunal and says: "You assess the amount and take the costs of my abortive proceedings out of my compensation." Even in that case the word in the section is "may." The judges have a discretion as to whether they will or will not give it, and again, in 99 cases out of 100, the judges will not give costs. I might even go so far as to say in 100 cases out of every 100 the employer will never get the costs. That is the invariable experience of anyone appearing in these cases. The courts will not give you costs in those circumstances.

There is a more fundamental difficulty in this section than that raised by Deputy Norton, a very much greater difficulty from the point of view of the dependant of the workman and that is at what period, at what stage, is he deemed to have made his election. It is a matter of doubt under the existing law. It is a matter of doubt whether, when the widow of a man who is killed in the course of his employment issues a summons under Lord Campbell's Act, the mere institution of proceedings under that summons is an election which, having exercised, she must go on with and abide by the result. It is a matter of doubt when she issues a writ whether she then and there debars herself from proceeding under the Workmen's Compensation Act or whether a claim under the Workmen's Compensation Act is barred once judgment is given. That is not clear under this section and I think Deputy Norton would be better advised to direct his attention to that aspect of the section than to be bothering his head about the costs of the legal fraternity when the legal fraternity do not get the costs.

As regards the matter raised by Deputy Norton, I have nothing to add to what Deputy Costello has said. It is quite clear that the representative of the workman cannot have it both ways. If he elects to take proceedings against the employer under the Act to which the Deputy referred and loses his case, he has to take the chance of costs being awarded against him and being deducted from the compensation awarded under this Act. Deputy Costello has told us that the practice nearly always is that the court will not award costs against the workman. Whatever the practice may be, if we put anything like that in the Statute we would be practically inviting every workman who thinks he has any case at all at least to have a try out. In a fatal case a workman's dependants can do so with the knowledge that no matter what the outcome may be they are not going to lose money. That would lead to an impossible state of affairs.

On the advice of a lawyer?

I do not take a lawyer's advice for all it purports to be.

Sections 59 to 62, inclusive, agreed to.
SECTION 63

If Deputy Costello is prepared to leave over consideration of amendment 18 until the Report Stage, perhaps that would be the more advisable course. I am prepared to accept the amendment in principle.

There is a difficulty, where a person is bringing proceedings against the State, in deciding who his employer is. His employer may be the Minister for Defence or the Commissioners for Public Works. It was for the purpose of drawing attention to that, that I submitted this amendment.

I am having an amendment prepared. Personally I do not think this is the same as in the case of the Traffic Act. I think the workman as a rule knows what Department he is employed under.

Yes, but legally he might not know who his employer is. Take the case of a man employed by the Department of Defence. It would be difficult for him to say his employer is the Minister for Defence, because the Minister for Finance pays him. It is to get over that difficulty and to have something rigid that I have put down the amendment. It struck me that the Minister for Finance, being the person who pays, would be the appropriate respondent.

Amendment 18 not moved.

What is the significance of sub-section (2) of Section 63? Does it mean that the Minister may approve schemes for friendly societies outside the operation of the ordinary terms of the Act?

It empowers the Minister to modify by warrant any annual allowance or gratuity granted under the Superannuation Act of 1887, so as to bring such allowance or gratuity into line with the amounts awardable as workmen's compensation under this measure. The section is, in fact, the same as the section in the 1906 Act. It does not effect a change in the law except as regards the terms. We have the terms "Minister for Finance" and "Oireachtas" instead of the terms in the original Act.

By what authority does the Minister for Finance issue a warrant? I understood that was a Royal prerogative.

It can be done in a Republic, too.

But can it be done by the Minister for Finance?

Apparently so.

I am not sure that this is not a function that ought to be reserved for President de Valera, and then let the man who reads the warrant make up his mind what he was president of at the relevant date. It is a different business bringing in the Minister for Finance. I think the Minister for Industry and Commerce ought to look up as to whether and why the Royal Prerogative is exercised and where it is exercised. If the President would sign it, we would know at a particular date whether he was King or whether he was President of an Irish Republic, but it is very awkward to find the Minister for Finance acting as King Seán MacEntee.

Or Seán II.

Sections 63 and 64 agreed to.
SECTION 65
(1) (c) in case of the death of the master, seaman or apprentice, proceedings to recover compensation shall be commenced within six months after the news of the death has been received by the claimant.
(2) This Act shall not by virtue of the immediately preceding sub-section apply to such members of the crew of a fishing boat which is a ship to which this section applies as are remunerated wholly or mainly by shares in the profits or the gross earnings of the working of such boat.

I move amendment 19:—

In sub-section (1) (c), line 39, after the word "death" to insert the words "by accident".

This is only a comparatively insignificant point to which I wish to direct attention by this amendment, but it may have important effects. The effect of this amendment would be that proceedings can be brought by the relatives of a seaman within six months after they have received notice of the death by accident of the seaman. As the section stands at the moment proceedings must be commenced within six months after the news of the death has been received by the claimant. Supposing an Irish seaman is abroad somewhere, say, Valparaiso, or some distant part of the world, supposing he meets with an accident, dies as a result of the accident and the shipping company writes a formal notice to the widow to say they regretted that on a certain day the husband died. The widow may not know for months afterwards that the circumstances were such as to constitute an accident. I do not want to have the dependants of a seaman jeopardised by this particular provision. The widow will have notice of the death of the husband, but she will not have notice of death by accident. The section as it stands would enable a shipping company if they were unscrupulous enough to inform the widow that the husband had died on such and such a date, without informing her that he had died by accident. The limitation should be six months from the date on which the widow gets notice of the death by accident. That is the purpose of my amendment.

If the Deputy will leave that over I will have the matter looked into.

Amendment 19, by leave, withdrawn.

I move amendment 20:—

To delete sub-section (2).

I move this amendment in order to raise a general question of fishermen rather than to secure the passing of the amendment. The British Act provided that fishermen who were remunerated by shares in the profits of a boat were excluded from the operations of the Act. That has been re-enacted here. Under Section 67 power is given to the Minister so that he may "by Order under this section declare that this Act, subject to such modifications as may be specified in such Order, shall apply to such members of the crew of a fishing boat as are remunerated wholly or mainly by shares in the profits of the gross earnings of the workings of such boat, and whenever such an Order is made and has come into force this Act shall, with such modifications as are specified in such Order, apply to such members." I was not satisfied that the English form was suitable to the conditions obtaining in this country. I do not know what type of fishermen in England are remunerated on the share system, but I do know that a great many fishermen in Donegal are altogether remunerated on that basis everywhere. I am not at all sure what the merits of the case are, whether it is wise to exclude those men from the benefits of this Bill or not. In the County Donegal it might mean that you made the skipper of one of these comparatively small boats liable for the workmen's compensation, and this might operate to stop fishing altogether or to wipe out somebody altogether. A claim might be made on one of the shareholders in the boat. I am not at all sure, taking into consideration the type of title under which these boats are held, whether it would always be easy to establish the individual against whom the action would be taken. For that reason, I thought it right to draw the Minister's attention to the matter. Probably if he has considered it he may have something to tell us as to what influenced him in the decision he has come to in drafting the section as it is.

The decision has been come to in order to avoid the holding up of this Bill until the difficulties associated with its application to share fishermen have been solved. We have taken powers of bringing up this question afterwards. Section 67 gives the Minister power to apply the Bill to such fishermen with or without such modifications as the circumstances arise. I am afraid I cannot give the Deputy much more information since this section is simply for the avoidance of the problem until this particular matter has ben solved.

Would the Minister take steps to consult interested parties and secure a memorandum after these parties have been consulted and at the same time to bear in mind that he is by statute withdrawing any possible claim they might have? He is taking something definite from them.

They are not included in the present law at all.

What does the Minister mean?

Share fishermen under the existing law are not eligible for compensation.

That would be a matter for the court to decide, as to whether they are workmen or whether they are engaged as workmen. The statute here defines that they are not. Therefore, we ought not to lose any time in setting about the collection of the information which we may require so that we may make an order at the earliest possible moment to secure the inclusion of these fishermen.

I support the amendment and I do so for this reason, that in the Sea Fisheries Association these men are paying for shares. The insurance would come to a very small amount. It would cost very little to have them insured. At present in a small town when a death takes place the local people have to subscribe. I would appeal to the Minister to include all these in the workmen's compensation because it will only come out of the boats. I ask him to have them included.

If it could be done in that way it would be quite satisfactory. This Bill does not require insurance against risk at all. The owners of the boats may not have insured against risks. In the case of share fishermen it would be hard to determine against whom the injured men would proceed. The Deputy said that share fishermen did get compensation. It is a question of fact whether they come within that definition or not. The existing law says: "This Act shall not apply to such members of a crew of a fishing vessel as are remunerated by shares earned in the profits or the gross earnings of such vessel." We are not changing the law in respect of them. We are, however, taking power to apply the Workmen's Compensation Act to such people with such modification as circumstances may necessitate, it being provided that the order under the Act shall not come into force until it has been before the Dáil for 21 days.

The provision in the Bill is an improvement on the present position. The provision that the Minister has just read out has been interpreted, strange to say, in an extremely strict way. It has been interpreted to mean that a man who has had even the very smallest share in the profits, or in the gross earnings, of a boat is excluded from the Act. There have been judicial decisions to that effect. The leading case is that of Costello v. Kelsoe Brothers. In that particular case the applicant was only in receipt of a very small amount of the profits of the boat in comparison with his ordinary remuneration. He was in receipt of a substantial wage of, I think, £1 a week, plus his keep and bunk on board. He received something small, which amounted only to about £1 in the month or more, by way of poundage or share in the profits. Yet he was held to be outside the operations of the Workmen's Compensation Act. A case such as that could not occur under the provisions in this Bill, which speaks of "wholly or mainly paid out of profits." Therefore the position of a fisherman working on a share system is improved to that extent. If he is only receiving a small portion as remuneration in the way of shares he now comes within the scope of the Workmen's Compensation Act. In our circumstances there are many of those persons who are running a boat, more or less, on equal shares, and undoubtedly while the owner of the boat gets what is called the "boat's share," there are two or three men who depend entirely for their remuneration on shares in the boat. They are co-adventurers—that, I think, is the term applied—with the owner in the work of running the boat.

They have no share in the boat at all.

Mr. Lynch

There is what is called the "boat's share." That is a technical term. The boat's share is probably one-half of the total earnings of the boat, and that would go to the owner of the boat. Then the other half is divided in diffrent ratios amongst the crew. In the case of a small proprietor of a boat, and where the members of the boat are remunerated entirely on the earnings, I fear that if you made the owner liable for workmen's compensation it would involve him in the cost of insuring his crew—of the men working on shares. I am afraid that would put him out of business. I do not see how you can improve on the present provision in the Bill. The same provision was made in the British Act of 1923, and it was put into that Act because of the decision in the case to which I have referred. That decision excluded persons from the Workmen's Compensation Act if they were getting even the smallest share in the turnover of the boat. I consider this a considerable improvement on the present position.

Amendment, by leave, withdrawn.
Sections 65 and 66 agreed to.
SECTION 67.
Question proposed: "That Section 67 stand part of the Bill."

On the section I want to refer to sub-section (2), which provides: "The Minister may by order under this section declare that this Act, subject to such modifications as may be specified in such order, shall apply to such members of the crew of a fishing boat as are remunerated wholly or mainly by shares in the profits or the gross earnings of the workings of such boat, and whenever such an order is made and has come into force this Act shall with such modifications as are specified in such order, apply to such members." Does that mean that the Minister can make an order that the Workmen's Compensation Act shall apply to one particular boat?

I do not think so.

Does it not look very like it? It seems to me that the Minister cannot apply this Act to one crew.

If the Deputy will look back at Section 65 he will see that it does not mean that the Minister can only apply the Act to one ship. I take no responsibility for the drafting, but that is the interpretation.

It is a fairly important thing. None of us wants to give the Minister power to apply the Workmen's Compensation Act to the boat of his worst enemy, or, again, to the boat of his best friend, so that clearly that is not the purpose the Minister has in mind. Perhaps he would look into the drafting of the section.

Question put and agreed to.
Sections 69 to 72, inclusive, agreed to.
SECTION 73.
Question proposed: "That Section 73 stand part of the Bill."

I want to ask the Minister a question with reference to sub-section (3). It reads: "The Minister may from time to time by order under this section extend the provisions of this section to other diseases and other processes and to injuries due to the nature of any employment specified in such order not being injuries by accident, either without modifications or subject to such modifications as he may think fit." I think that is a very wide power to give the Minister. Is it wise to give the Minister power to extend the benefit of this Act to diseases that are not contained in the Schedule?

The Deputy is aware that this is not new. It is a re-enactment of a section already in the 1906 Act.

I did not know that it was in the 1906 Act. The Schedule of industrial diseases that have already been defined as diseases which might properly be dealt with under this Act is pretty long. Perhaps the Minister will tell us what procedure he goes through before defining an industrial disease for the purposes of the Act.

I am afraid I cannot answer that, because I have not had any experience.

No case has arisen in the Minister's experience?

I suppose the Minister will take extensive precautions?

Question put and agreed to.
SECTION 74
(1) If the workman at or immediately before the date of such disablement or suspension as is mentioned in the foregoing section was employed in any process mentioned in the second column of the Fifth Schedule to this Act....

I move amendment 21:—

"In sub-section (1), to delete the word "Fifth", line 27, and substitute the word "Sixth".

Amendment agreed to.
Section 74, as amended, agreed to.
Sections 75 to 96 agreed to.
First Schedule agreed to.
SECOND SCHEDULE.
Rules For Computation of Compensation in Fatal Cases.

I move amendment No. 22:—

To delete Rule 3 and substitute the following Rule—

3 (1) Where a workman leaves a child or children and such child was or all such children were wholly dependent on his earnings, the following provisions shall, subject to Rule 5 of this Schedule, have effect in relation to the children's lump sum, that is to say:—

(a) the children's lump sum shall not in any case exceed £600;

(b) where the compensation consists of both the children's lump sum and the adults' lump sum, and there is one child only, the children's lump sum shall be a sum equal to the amount arrived at by multiplying £2 1s. 8d. by a number equal to the number of complete calendar months between the date of the death of the workman and the date on which such child will attain the age of 15 years;

(c) where the compensation consists of both the children's lump sum and the adults' lump sum and there are two or more children, the following provisions shall have effect, that is to say:—

(i) in case there are two children only, the children's lump sum shall be a sum equal to the total of the following amounts, that is to say:—

I. The amount arrived at by multiplying £3 6s. 8d. by a number equal to the number of complete calendar months between the date of the death of the workman and the date on which the elder of such children will attain the age of 15 years, and

II. the amount arrived at by multiplying £2 1s. 8d. by a number equal to the number of complete calendar months between the date on which the elder of such children will attain the age of 15 years, and the date on which the younger of such children will attain that age;

(ii) in case there are three children only, the children's lump sum shall be a sum equal to the total of the following amounts, that is to say:—

I. the amount arrived at by multiplying £3 15s. 0d. by a number equal to the number of complete calendar months between the date of the death of the workman and the date on which the eldest of such children will attain the age of 15 years, and

II. the amount arrived at by multiplying £3 6s. 8d. by a number equal to the number of complete calendar months between the date on which the eldest of such children will attain the age of 15 years and the date on which the second of such children will attain that age, and

III. the amount arrived at by multiplying £2 1s. 8d. by a number equal to the number of complete calendar months between the date on which the second of such children will attain the age of 15 years and the date on which the youngest of such children will attain that age;

(iii) in case there are four children only, the children's lump sum shall be a sum equal to the total of the following amounts, that is to say:—

I. the amount arrived at by multiplying £4 3s. 4d. by a number equal to the number of complete calendar months between the date of the death of the workman and the date on which the eldest of such children will attain the age of 15 years, and

II. the amount arrived at by multiplying £3 15s. 0d. by a number equal to the number of complete calendar months between the date on which the eldest of such children will attain the age of 15 years and the date on which the second of such children will attain that age, and

III. the amount arrived at by multiplying £3 6s. 8d. by a number equal to the number of complete calendar months between the date on which the second of such children will attain the age of 15 years and the date on which the third of such children will attain that age, and

IV. the amount arrived at by multiplying £2 1s 8d. by a number equal to the number of complete calendar months between the date on which the third of such children will attain the age of 15 years and the date on which the youngest of such children will attain that age;

(iv) in case there are five or more children, the children's lump sum shall be a sum equal to the total of the following amounts, that is to say:—

I. the amount arrived at by multiplying £4 3s. 4d. by a number equal to the number of complete calendar months between the date of the death of the workman and the date on which the eldest of the four youngest of such children will attain the age of 15 years, and

II. the amount arrived at by multiplying £3 15s. 0d. by a number equal to the number of complete calendar months between the date on which the eldest of the four youngest of such children will attain the age of 15 years and the date on which the second of the four youngest of such children will attain that age, and

III. the amount arrived at by multiplying £3 6s. 8d. by a number equal to the number of complete calendar months between the date on which the second of the four youngest of such children will attain the age of 15 years and the date on which the third in order of seniority of birth of the four youngest of such children will attain that age, and

IV. the amount arrived at by multiplying £2 1s. 8d. by a number equal to the number of complete calendar months between the date on which the third of the four youngest of such children will attain the age of 15 years and the date on which the youngest of such children will attain that age;

(d) where the compensation consists of the children's lump sum only, and there is one child only, the children's lump sum shall be whichever is the greater of the following amounts, that is to say:—

(i) the amount arrived at by multiplying £2 1s. 8d. by a number equal to the number of complete calendar months between the date of the death of the workman and the date on which such child will attain the age of 15 years, or

(ii) the amount of the adults' lump sum calculated under Rule 1 of this Schedule, if the compensation has been or included the adults' lump sum;

(e) where the compensation consists of the children's lump sum only, and there are two or more children, the children's lump sum shall be whichever is the greater of the following amounts, that is to say:—

(i) the amount of the children's lump sum calculated under sub-paragraph (b) of this paragraph, if the compensation had consisted of the adults' lump sum and the children's lump sum, or

(ii) the amount of the adults' lump sum calculated under Rule 1 of this Schedule, if the compensation had been or included the adults' lump sum.

(2) References in this rule to the date on which a child will attain the age of 15 years shall be construed as references to the date on which such child will, unless he previously dies, attain that age.

The purpose of this amendment is to correct a mistake in Rule III in the Second Schedule in the form in which it appeared in the Bill, and to secure that where there are children and a lump sum is awarded that the following will be the effect: If there are, say, four children, and periodical payments are based upon the amounts that would be payable in respect to four children, and one of those children passes the age in respect of which compensation is to be paid, namely 15 years, then the amount in respect of the three children is automatically increased to the point which it would be if it had been three children, and so on when the third child passes the age of 15 the average for the remaining number is increased. In the form in which it originally appeared that was not adequately provided for, and, in fact, worked out on a particular specimen case it was possible that the amount of compensation payable might be less as the family got larger, provided the family were older in age. It is to provide against that that this amendment has been drafted. It has been tested out in all possible cases that may arise, and seems to achieve our purpose, which is that the amount of the compensation shall be fairly provided on the basis set out there.

Children's payments are, as Deputies are aware, made on this basis. It is assumed that periodical payments will be made. There is, of course, discretion in the court, but it is assumed that they will be periodical. Under the existing law a lump sum is paid into court in respect of a child and allowed to accumulate. Under this Bill the payments will be made while the child is getting up to 15 years of age. Payments will be calculated on a certain sum per month, in respect of every month that the child has to live, from the date on which compensation is awarded to the date on which the child reaches 15 years of age. The amounts are set out in the amendment.

I may say that, in respect of the rules dealing with the disposition of compensation in fatal cases, the procedure which is embodied in the rules relating to the adult lump sum departs from the recommendation of the Committee. Deputies are no doubt familiar with the recommendation of the Committee in this regard, which involves the principle of definite payments, and which were inaccurately calculated, so that under various circumstances the maximum prescribed by the Committee could have been exceeded. The amount depends on the earnings of the worker. There is a maximum of £300 and a minimum of £200. Within these limits it is calculated on the earning of the worker being a weekly earning multiplied by 156 on a three years' basis. That part of the proposal follows the existing law in Great Britain. In regard to the children's lump sum, we followed the recommendation of the Committee. It does not depend upon the earning of the worker, but on the children and the ages of the children. It is different from the British law, and it is designed to secure that there will be available periodic payments, if circumstances justify them, for the children, during the period in which they are likely to be most in need of that, that is, while not of the age that it would be possible for them to earn their contribution towards the maintenance of the household. I assume it will be desirable to discuss this at some length, so I shall leave it at the moment.

Question put and agreed to.
Second Schedule, as amended, agreed to.
THIRD SCHEDULE.
(Rules for Computation of Amount of Weekly Payments.)

I move amendment No. 23:—

In Rule 2, line 42, after the word "shillings" to add the words "and in any case of partial incapacity shall not exceed twenty shillings."

There is a maximum sum provided which weekly payment shall not exceed. I wish to have another maximum provided for partial disablement. It would be very desirable in computing various injuries, and I hope the Minister can see his way to accept it.

I do not think this amendment would be altogether fair if inserted in the Bill. It might in various circumstances that could be contemplated press injuriously upon the workmen. Again I take the case of a man earning 40/- a week. After an accident he might have recovered sufficiently to do light work, and he might succeed in getting employment which would bring him in 10/- a week. The difference then between pre-accident and post-accident earnings would be 30/- of which he would get 75 per cent., so that under the Bill as it stands he would be entitled to get 22/6. I think, in all the circumstances, 22/6 is not excessive compensation for a loss of earning power of 30/- per week. The insertion of a maximum is, I think, undesirable. There are so many cases in which it would operate unfairly, and the difference is likely to be so small that it should not be allowed to interfere with the recommendations of the Committee. It is possible to get some peculiar results in imaginary circumstances. If you can imagine a worker getting a certain pre-accident and post-accident wage, and calculate what his circumstances might be in various positions, you would get a peculiar result, but, on the whole, the calculation adopted in the Schedule works out remarkably fairly, and in that case the compensation seems to be in proper proportion to the loss in earning which the accident has created. You upset the curve, if I may say so, if you bring in proposals of maximum compensation, so far as to lead to injustice, having regard to all the circumstances of the case.

Amendment, by leave, withdrawn.

I move amendment 24:—

In Rule 4 (a), line 56, to delete the word "eighty" and substitute the word "seventy-five", and in Rule 4 (b) line 60 to delete the word "seventy-five" and substitute the word "eighty".

This is really a drafting error. The Bill as it stands makes it 80 per cent. where the difference between the earnings does not exceed £1 and 75 per cent. where the difference between the earnings exceeds £1. Obviously, it should be the reverse. It is not quite easy to see, because, of course, the Bill talks not of earnings, but of difference between earnings, but it is quite clear that a mistake has been made.

Amendment agreed to.
Amendment 25 not moved.

On the schedule, I should like to ask the Minister why he has reduced the amount of compensation from 35/- to 30/- per week. Thirty shillings may be a decent sum for an ordinary unskilled labourer, but a man who has had £4 or £5 per week, who is unlucky enough to meet with an accident and is laid up for a considerable time in consequence of it, will find it very difficult to live on 30/- per week. We certainly are opposed to that, and I should like to know what made the Minister come to the conclusion that 30/- was sufficient, and why he reduced it from 35/-.

The Committee recommended that the amount of compensation in non-fatal cases should be calculated on the basis which we have adopted in the Bill, with a maximum payment in any one case of 35/- per week. They made that recommendation in 1926. Since that time there has been a substantial decline in the cost of living, and I think we are entitled to take that decline into account in fixing the maximum amount to be paid under the Bill. On the other hand, there is the fact that in Great Britain, a country which is much more highly developed industrially than this, the maximum amount payable since 1923 has been 30/- per week. The recommendation of the Committee, that the maximum here should be 35/- was, of course, made after the change had been made in the British law. I do not think, however, that that in itself should weigh against all the considerations I have mentioned.

We have adopted the recommendation of the Committee in respect of the manner in which the amount is to be calculated. In that respect we have departed from the existing law and are also acting in a manner different from that provided in the English law, with the result that, subject to the maximum, the amount payable here is in every case, except at one particular point in the scale, higher than it is in Great Britain. The position here is that anyone earning over 40/- per week before the accident gets the maximum compensation of 30/-. It is true that under the existing law, which is of course a temporary law passed in 1919 and continued every year since, these people get 35/- per week. In Great Britain the maximum of 30/- is only paid to persons who before the accident were earning 60/- per week. A person in Great Britain who was earning 40/- per week instead of getting our maximum of 30/- only gets 22/6, and the same difference goes down the scale. Where the weekly wage was 35/-, the payment here will be 26/3 as against 22/-. Where the weekly wage was 30/-, the payment here will be 22/6 as against 20/-. In the case of a person earning 25/-, where you come to the break in the scheme, the payments are the same in each case, 18/9 here and 18/9 in Great Britain. Again, the scale falls less in this country than it does in Great Britain. Where the weekly wage was 20/-, the payment here is 16/-, as against 15/- in Great Britain.

We are thus providing compensation to workers who have been wholly incapacitated on a level higher than in Great Britain, even though it is somewhat below the scale of compensation now in operation. The scale of compensation now in operation here is based on the 1906 Act, plus the 75 per cent. addition in the payments made by the War Addition Act which ceased to operate in Great Britain in 1923. It has continued to operate here. We are now effecting the legislative changes which were effected in Great Britain in 1923. In that year they went back to the 30/- maximum and we are going back to it now. In doing so, we are taking a different method of calculation in respect of the lower-paid worker which works out better than the British Act although in respect of the higher-paid workman it works out the same. The desirability of doing this was, of course, very carefully considered and there are a number of circumstances which seem to justify, in fact to require, that we should not legislate here for the substantially higher maximum which the Committee recommended in 1926. I feel confident that if the Committee had been meeting now, in the circumstances existing now, having regard to the present cost of living, they would not have made the recommendation which they made in 1926 in entirely different circumstances. They would have had regard to the maximum prevailing in Great Britain, just as I feel certain that if the British Committee had been meeting now, instead of in 1923 when they recommended the maximum of 30/-, they would probably recommend a smaller maximum even than the 30/- which is now in operation there and which it is proposed to bring into operation here.

I feel quite happy in my mind that we are not doing any injustice in effecting the change, having regard to the fact that, although it means a lower maximum, it means a much less steep decline in the scale than has been the position here, and is the position in Great Britain. In the majority of cases, of course, the payment made is the maximum payment. It is only in respect of a certain class of workers, workers whose remuneration is under 40/- per week, that any payment other than the maximum is made. It should be noted also that the method of calculating the payment in the case of a partial incapacity provides for a higher percentage, and also works out more favourably to the workman than elsewhere.

One other point I want to make, and that is, that no person who has been injured at a date prior to the passage of this Act is prejudiced by its passage. The Act operates to continue for him compensation at the same rate he has been getting heretofore. A person who has been getting the maximum of 35/- under the existing law has by this Act his 35/- secured for him. There is no reduction being effected in the amount paid.

Third Schedule, as amended, agreed to.

Fourth Schedule agreed to.

FIFTH SCHEDULE.

2. In the event of the death of any person (in this and the next following paragraph referred to as a deceased dependant) entitled as dependant to money which is or is part of the adults' lump sum paid into Court under this Act, then, if no order has been theretofore made by the Court as to the disposition thereof for the benefit of other dependants, in the event of the death of such deceased dependant the Court may, subject to the provisions of the next following paragraph, without requiring representation to be raised to the estate of such deceased dependant distribute such sum amongst such persons as appear to the Court, upon such evidence as the Court may deem satisfactory, to be entitled by law to receive the same or if such deceased dependant is illegitimate and dies intestate, amongst the persons who in the opinion of the Court would have been entitled thereto if such deceased dependant had been legitimate, and if there are no such persons the Court shall deal with the sum as the Minister for Finance shall direct.

The following amendment was agreed to:—

In paragraph 2, page 37, to delete all from the word "such" in line 24 to the end of the paragraph and substitute the words "persons who (as the case may be) appear to be so entitled as aforesaid or would have been so entitled as aforesaid, the Court shall pay such sum to the Minister for Finance for payment into or disposal for the benefit of the Exchequer."—(Aire Tionnscail agus Tráchtála.)

Fifth Schedule, as amended, agreed to.

Sixth Schedule agreed to.

Title put and agreed to.
Bill reported with amendments.
Report Stage fixed for Wednesday, 29th November.
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