Committee on Finance. - Law of Torts (Miscellaneous Reforms) Bill, 1941—Second Stage (Resumed).

Question again proposed: "That the Bill be now read a second time."— (Deputy Costello.)

At the adjournment on the last occasion, when the Second Reading of this Bill was being moved by me, I was dealing with what was not in the Bill rather than with what was in the Bill. In the course of my preliminary observations I stated that I had introduced this Bill for the general purpose of drawing attention to the necessity for law reform rather than for the purpose of getting a particular Bill through the House. I understand from a communication I have had from the Minister that he is rather sympathetic to the proposals in this Bill or to something along its general principles. I appreciate his attitude very much if I interpret it correctly as conveyed to me.

I do not wish to prolong the discussion on this particular Bill but wish to make the case that, while I put it down with very attenuated proposals, the purpose I had was rather to find an opportunity to advocate the necessity for a law reform committee. I am very anxious that the provisions in this Bill should be given legislative effect, but the Bill as it stands does not go far enough. I may make the case a little clearer by referring to the fact that the actual provisions of this Bill, with the exception of Section 4, are practically a copy of the Law Reform (Married Women and Tortfeasors) Act, 1935, in England. The actual Bill I am introducing does not contain anything like half of the proposals in that Act and which, I think, should be included in this Bill.

At the close of my observations on the last occasion, I was dealing with the necessity to provide that, in cases of death caused by the negligence of another person, the dependents of the person so killed should be entitled to get the funeral expenses. That particular provision is contained in an earlier Act in England—the Law Reform (Miscellaneous Provisions) Act, of 1934. That Act also contains a provision which I would like to see the law in this country. It deals with the effect of the death of a party to a civil action before the actual action comes to a final determination. As regards the provision for making the negligent person causing death liable for funeral expenses, I do not think the English provision goes far enough.

Perhaps I am talking now on matters more familiar to practitioners than to members of this House, but Deputies will probably be aware that if a person is injured in, say, a motor accident through the negligence of the driver of a motor car, he can obtain substantial damages, owing to the compulsory insurance provisions of the Road Traffic Act. Although the person injured has a reasonable chance of recovering the amount of damages given to him by a judge or by a judge and jury, in the case of death caused by such negligence of another party the rule was that the death of a party put an end to the action. If the person lives long enough he may get substantial damages, but if he is dead his dependents can obtain only comparatively small damages which are related merely to the extent of the dependency of certain limited classes upon him. In other words, under what we know as Lord Campbell's Act, if a person is killed by the negligence of another person his estate can get nothing and a limited class of dependents can get only the actual money loss they sustained by reason of the death. Up to the present moment in this country, the actual expenses of burying the person killed by the negligence of another cannot be recovered, and that is clearly an injustice which should be removed as soon as possible.

That particular provision is not in my Bill, as I merely put this down as a token, to show the necessity for amendment of the law in all these matters. I may give an example of a case I was engaged in last year, where a person was very seriously injured. He was a bachelor and had no dependents whatever. At the time of the trial in November the suggestion was made that it should be adjourned to January, but we were sufficiently alive to the position and opposed that, and it was settled ultimately with a very large amount of damages. Inside a month or two, this man died. Had the case been adjourned from November to January, the insurance company— of the defendant in that action, which was really the insurance company ultimately—would not have had to pay one single penny.

I think that brings out the point I am making, that there is a rather curious anomaly in connection with the law of negligence and the effect of death in the case where the death has been caused by the negligence of another party. At all events, it is quite clear that provision for the funeral expenses should be made in this Bill, and also that some provision should be made in reference to the situation where the death occurs between the institution of the proceedings and their final determination. As I have stated, under Lord Campbell's Act the damages are confined to the actual money loss suffered by a limited class of dependents. I think, in the case of death caused by negligence, that, irrespective of dependency, those expenses should be recoverable from the person responsible for the death.

I said before that I have been dealing with what is not in the Bill rather than with what is in it. I dealt with the first three sections on the last occasion. May I now make one or two observations on Section 4? This section contains my own proposals and embodies merely my own ideas. I think, however, they are such as to commend themselves to reasonable persons giving them a proper consideration. The proposals contained in Section 4 have not been given effect to in England. I might explain Section 4 by saying this: A person writes a letter to a newspaper, that letter is printed in the newspaper. On the face of that letter it appears to be perfectly innocuous. There is nothing to show the editor or the proprietor of that newspaper that there is implicit in the letter a serious libel on another person. It may be so worded that no care, no reasonable view of the case from the point of view of persons who do not understand the circumstances referred to, would bring them to believe that there was a libel, or, as we would call it, an innuendo in that letter. But then it turns out that the letter, which on its face would appear to be quite innocuous to a stranger, contains a libellous innuendo on a third party. That third party brings an action for libel. He is entitled to bring an action against the writer of the letter who may not be a mark. He is also entitled to bring an action against the newspaper. There is only one set of damages given in that case, and it is given against the writer of the letter and the editor or proprietor of the newspaper. The plaintiff in the case, the person injured, is entitled to execute for the amount of damages given against the proprietor of the newspaper, leaving the person who is really responsible to go scot-free and, really in a sense, punishing a person who, in the particular circumstances I have mentioned, may be completely morally innocent. It is to meet a situation of that kind that I have put in Section 4: to enable a judge or a jury hearing an action of that kind to say, where there are several different persons who publish and disseminate a libel, that they are responsible in different and varying degrees, that one set of damages would not meet the situation: that in respect of the person who commits the libel originally, and who is the real person responsible, the heaviest loss should fall on him, but that in respect of the others who publish it, that they are only partially responsible, and, therefore, that a smaller sum in damages should be given against them. I know a powerful case can be put up against that argument because the Press is a great institution: that it may, in fact, work out oppressively, but at the same time, balancing the situation, I think that the proposals that I have in this Section 4 would enable a judge or jury, on the facts of a particular case, to deal out justice in accordance with the facts of a particular case.

I think that covers all the proposals in this Bill. When I say that the proposals in the Bill do not go far enough, I mean they do not comprise what is in the 1934 Bill in England, and they do not comprise what is really in the 1935 Bill in England to the fullest extent. I have put down the Bill merely to draw attention to the necessity for some of the proposals that I have adverted to in the course of the remarks that I have made up to date. I have put it down primarily for the purpose of drawing attention to the necessity for something in the nature of a law reform committee. In the course of various speeches that I have made in this House from time to time, I did draw attention to the necessity for such a committee. If my recollection serves me aright, I had an amendment down to the last Courts of Justice Act in 1936 calling for a Bill dealing with arbitration. My recollection definitely is that I was given to understand—of course there was no binding promise by the Attorney-General at the time—that he would recommend the introduction of an Arbitration Bill in the course of a few months.

Nothing has been done about that. We in this country at the present time, so far as arbitration is concerned, are dealing with law which is very nearly a century old. It is entirely out of date, and quite inappropriate to meet the complex facts of the present time. I think that arbitration could be made a very serious instrument of oppression against a poor person. I would think, therefore, that one of the most urgent reforms necessary in our law at the present moment is arbitration. The English legislature has also brought that matter up to date in a recent Act. While I think that Act is not entirely appropriate to our circumstances here, it might form the basis upon which a Bill could be drafted for our consideration to meet the peculiar circumstances here. I think that arbitration, as a form for the settlement of disputes, is useful. In some cases it might be, as I say, made an instrument of oppression.

In passing, I may mention that there are two fundamental matters that I would like to see provided in the Bill. Our law, as I have said, at the present time is entirely out of date. There is no power for an arbitrator to deal with the question of costs unless a specific reference to arbitration is made in writing and unless a specific provision is inserted in the reference. Now, the commonest way in which this matter is raised is in insurance policies. In practically every insurance policy that is issued, where it covers liability for motor accidents or for anything, there is nearly always a provision to refer the dispute between the assured and the insurance company to arbitration. I should say that in 99 per cent. of the policies that are issued, there is a reference to the English Arbitration Act in the clause, and there is no reference whatever to the law here. That causes trouble as to where the arbitration is to be held if the policy is made with a British insurance company. There is very rarely a provision to enable the arbitrator to deal with the question of costs. You find this kind of situation arising. There is a motor accident. The insurance company repudiates liability on a particular ground, and that has to be referred to arbitration. Now, even if the assured wins the arbitration, there is normally no power in the arbitrator to award the winning party the costs of that arbitration. Deputies can see how heavy the liability might be in particular circumstances. I would like to see a provision in such an Arbitration Bill providing that, whether a contract is a policy of insurance or anything else, disputes are to be referred to arbitration, but that nevertheless it will be within the power of the High Court to say that notwithstanding any agreement a particular case should be dealt with by the courts of justice and in open court. That is a very essential provision, particularly for the protection of litigants in not very affluent circumstances.

I do not want to weary the Minister or the House with a reference to all the matters that urgently require consideration by such a committee as I would like to see set up. I should like, however, to give a short outline of some of the matters that do urgently require reform, with a view to making the case clear that such a committee as I envisage is urgently wanted, and that it would perform a useful public function. I appreciate that the Minister is concerned with various matters that must, in the present circumstances, occupy his time and the time of his officials, and, consequently, the particular type of tribunal that I would like to see set up would be one composed entirely of professional men or judges, or both.

I would have put down a motion some years ago calling for the appointment of a law reform committee to deal with these matters were it not for the fact that I feared at that time that such a committee would be composed of a collection of all the cranks that could be collected in this country, and that our last situation would be worse than our first. I think, even in the matter of law reform, the number of cranks that could be collected would surpass the imagination. It was dread of that situation that prevented me at that time from putting down such a motion. I have sufficient confidence in the Minister to think that he would not collect such a body of cranks and put them on this committee and, consequently, I make the suggestion now.

The proper personnel of the committee would be professional men who make their living by the law, and who know and understand the problems to be met with in the ordinary rough and tumble of litigation. I suggest that judges who hear cases and who know the defects and the gaps in our law would be very appropriate members of the tribunal. Any person connected with business or belonging to any other section of the community could submit suggestions and memoranda which would be given the most careful consideration. The committee could advise the Minister on the various matters in respect of which law reform is urgently required.

A great deal of work has been done by a law reform committee composed of the best lawyers in England. That committee has been sitting during the last few years. They have made interim reports which are valuable and which contain information that would be of great utility. I do not advocate here or elsewhere that we should slavishly follow British legislation in everything they pass—far from it—but I do say that where there are matters which are common to this country and England, it is desirable that our procedure in law should, so far as our own requirements permit, be much the same and that even the very wording of the statutes which deal with situations common to this country and England should be as closely similar as possible.

Unfortunately this is not a rich country, and the members of the legal profession have a pretty hard job to make their living, and they have no leisure time to write text books. The result is that the text books dealing with the law of this country, a law perhaps peculiar to this country, have gone completely out of date and there is very little chance of any great abundance of text books being furnished for the guidance of our practitioners and judges in the future. For that reason, where there are matters common to this country and England, I think it useful, from the point of view of practitioners and judges, but particularly from the point of view of litigants who want to be advised as to their rights before they embark on litigation, that we should have the benefit of the very rich store of legal lore that exists in England, and especially the text books that are written and kept up to date there.

No matter what law we pass here, whether it corresponds with the British or not, I am satisfied that we could mould and fashion and interpret that law in accordance with our own ideas. It would be most useful if we could have the guidance of the text books and decisions that are available for the information of litigants before they embark on litigation here.

I should like to give a few examples of the type of thing that is required. I have mentioned arbitration. It would perhaps be better that I should mention the crying need that exists for an amendment of a particular branch of the law, and that is in relation to workmen's compensation. The Workmen's Compensation Act that was passed in this House is now being administered by our courts. In the course of the administration of that Act very serious defects have emerged, particularly in relation to provisions that are in the Schedule of the Act dealing with the amount of money that youthful dependents are entitled to get in the event of a parent being killed in the course of employment. A number of other matters have emerged and the circuit judges, particularly in Dublin, have had a vast experience of the administration of that Act and they have collected quite an amount of data dealing with defects and difficulties in the Act and indicating various points in which an urgent necessity arises for amendment.

To pass to another topic, there is the question of the widow's right to a share in her husband's estate if he dies intestate. The law existing in this country merely provides that on the death of the husband, if he dies intestate and without children, the widow is entitled to get £500 and half of his estate. It very frequently happens that a man and his wife live amicably together and, through some misfortune, neglect or oversight the husband makes no will, dies unexpectedly, perhaps as the result of an accident, and then somebody at the end of the earth, some remote next of kin, may take half of his estate and leave the widow very inadequately provided for. That is a matter that requires some reform, and so indeed does the whole law of succession. There is then the old feudal rule of the heir at law acquiring freehold property. That also requires examination and reform.

The bankruptcy law of this country is entirely out of date. I think there was a report made some years ago with reference to that particular branch of the law, and there was also something with reference to the law of companies. The Companies Act of 1908 is still the law here. It is the basis of our company law. It has been brought up to date in England by the Act of 1929. I think there is some material in Government departments which would enable the law relating to companies very easily to be brought up to date, and I think there is a fair degree of public demand and certainly public urgency for such a reform.

I could give numbers of other examples, such, for instance, as the law relating to hire purchase, in which case the existing law here could be very easily examined into and amended in the public interest. In many respects our criminal law requires drastic reorganisation and reform. To mention only one particular topic, there is the spectacle, very frequently met with in the Central Criminal Court, of an unfortunate woman who, in the stress of the birth of an illegitimate child, destroys that life. We have the old, ancient law that that is nothing but murder. The British have introduced the Infanticide Act, in 1938, enabling a more humane treatment to be given to the unfortunate person than usually happens here in this country. We have the necessity here for the prosecuting counsel to indict that young girl, as she very frequently is, for the full crime of murder. Then there has to be a certain amount of examination of the facts with a view to seeing whether the court or the prosecution will accept some other plea less than the plea of murder. Perhaps the Minister and some of the Deputies are aware of the story of a judge who, in such a case, proceeded to go through the farce of putting on his black cap for the purpose of sentencing to death a young girl who was indicted for the murder of her illegitimate infant in circumstances in which it was quite clear that the girl did not know what she was doing. The law, however, required that the judge should go through the ridiculous farce of putting on the black cap and sentencing her to death, and then the Executive Council had to go through the equally ridiculous farce of commuting the sentence to imprisonment for life. The observation of the judge on that occasion was: "Do not be a bit afraid, my good girl; I am going to sentence you to death but nothing will happen to you." That is a case where, I think, the criminal law requires examination. We are dealing here with a system of law the whole roots of which are founded in the legal practice and jurisdiction of another country, and I think our whole attitude towards criminal procedure and punishment requires very drastic investigation and reform.

I have various other topics, such as the introduction of a law enabling a person to adopt a child legally and properly, with the full implications of statutory adoption. We have no real power at the moment to enable a person to adopt a child and treat it as its own. The question whether an illegitimate child who, in fact, was dependent on one who was killed as a result of negligence by someone else, should have some share, after the death of the person responsible for their being, under Lord Campbell's Act, is one that ought to be inquired into.

Then there is the last example that I intend to give, which is the question as to whether it is regarded as still proper that a person who enjoys considerable wealth, and who has a family, is entitled to leave every single penny of his fortune away from his family and make no provision whatever for them. Again, the British are in advance of us in this respect and, by an Act of 1938, the Inheritance (Families Provision) Act, they have given power to a court to make provision, notwithstanding the particular will, for a widow, an infant son or a dependent daughter, or relatives of that child. Whether that goes far enough or not is a debatable point, but at all events it is something that, I think, requires to be inquired into here because there exists power here still under the law for a testator to deprive his dependent relatives, his widow and, perhaps, his children, of every penny of his property in favour, perhaps, of some ridiculous idea which masquerades under the name of charity, or to give it to some other object altogether.

Now, I have only mentioned these cases in outline for the purpose of making the case that I set out to make: that there exists here at present an urgent need for inquiring into various branches of the law with a view to seeing how the law can be reformed to suit our own native requirements and conditions. I have said that I attach no blame to the Minister or the officials of his Department for this not being done before. Various preoccupations that have occupied the entire attention of the Minister's Department for years past have prevented that from being done, and still, perhaps, prevent it from being done. Consequently, I suggest—and in suggesting it I again emphasise the fact that it is my own convinced opinion— that the best law reform committee will be one of practitioners in both branches of the profession, as well as judges, and that members of the business community and others can help that committee in its deliberations. I appeal to the Minister that, if he does accede to my request to have set up a law reform committee, he should carefully avoid, as far as possible, putting on that committee anybody with cranky or preconceived notions about law reform.

As regards this Bill which I am moving, its provisions, and other provisions, to which I have referred, contained in the two British Acts of 1934 and 1935, are urgently required. I go so far as to assert that the Bill, in fact, as drafted by me, is not sufficient to cover what I want. I did not set out to do everything that I wanted. I merely put down this particular Bill with the minimum in it so that I could, if possible, enlist the Minister's sympathies not merely for the few provisions that are in the Bill but for the general purpose of law reform.

I formally second the motion.

The Deputy is right in saying that I am favourable to this Bill, but I find myself in a dilemma which, I think, the Deputy sees himself. First of all, as he knows, both the Minister for Justice and the Department of Justice were preoccupied with other very urgent and important matters and, as a result, we have not been able to devote our time to legal reforms which are necessary. I did not at first understand what type of committee the Deputy had in mind, but I imagine, from what he has said, that he has in mind a permanent committee sitting, say, for a number of years and acting whole-time on that work. I thought at first, when he mentioned the idea of a law-reform committee, that he had in mind a kind of joint committee of both Houses, but apparently that is not the idea. I do not know if it is possible, but I myself would like to have it done because I am quite aware that there are several pressing reforms needed, and I do not think the reforms put down in this Bill by the Deputy are the most important. I should like to say that I was not aware that there was much demand for the reforms suggested in this Bill. As the Deputy is aware, there were some committees set up under the Courts of Justice Act, and I have not had any representations or any requests from them. I know that that is one of the duties placed on them, and I thought I would have heard from them if there was such a demand. However, perhaps they were too busy, or they might not have thought it well to do so. I know it is one of the duties which have been placed upon them by the 1936 Act. I do not know whether or not Deputy Costello has been speaking to any member of that committee.

I have not. I have not consulted them, but, if I may interrupt the Minister, I want to say that so far as the provisions in this Bill are concerned, although there has been no public demand for them, I think everybody will recognise their urgency. The mere fact that nobody has demanded them is no evidence that they are not required. There has been a lot of talk about it, and one of the reasons why I took it on myself to put down this Bill was that I had to do something which everybody wanted but nobody would do.

Mr. Boland

I think the Deputy has done a good service in that, I must say. I do not know that there is any machinery at present whereby we could get some other small points settled, perhaps, if this Bill were withdrawn.

If the Minister could have it examined in his Department, or by a Select Committee of both Houses, whichever he prefers, and have the provisions of the 1934 and 1935 English Bills examined also, I think it would be desirable that those provisions should be put into effect as soon as possible, because the provisions in regard to those joint torts arise every day in motor accident cases in the courts. I think I gave an example— if I have not done so I intended to do it—of the sort of abuses that arise from the existence of the old common law rule whereby a person can get more than his damages by holding up to ransom, so to speak, one particular party as against another.

Mr. Boland

If there is any way of doing that, and if it could be done quickly, I should like it to be done. There are a couple of other provisions which I think we would like to have incorporated, and whether it is better to go ahead with this Bill and bring in another one later on I do not know. My own personal attitude is that I would not have brought in a Bill like this at the present time, because, I thought there was a sort of understanding during this present emergency that Bills of this type would not be introduced. I felt that, if I had not some understanding with the Opposition, I would be asked: "Have you nothing better to occupy your mind than a matter of this kind?", because I think the ordinary member of the House does not think there is such an urgent demand for this reform. If they wanted to play politics with me, they might have said: "You have an emergency here. Have you nothing better to occupy your mind?" I did not know whether or not that was the way I would be received if I brought in a Bill of this kind. I am glad to see the attitude which Deputy Costello has adopted in the matter, and I should be glad to have those and perhaps some other points dealt with. I quite agree that the reforms in this Bill are necessary. I do not know that I would take over the Bill myself; I think the procedure is to refer it to a Special Committee.

If the Minister would do that, I would be quite happy. It is capable of amendment to bring in further points.

Mr. Boland

Yes; it could be sent to a Special Committee, and perhaps some amendments might be fitted in.

Has the Second Reading to be taken before that is done?

Mr. Boland


Then, before it is taken, I should like to express my appreciation of the Minister's attitude.

Question—"That the Bill be now read a Second Time"—put and agreed to.