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Dáil Éireann debate -
Wednesday, 25 Feb 1953

Vol. 136 No. 11

Private Deputies' Business. - Fatal Accidents (Amendment) Bill, 1953—Second Stage.

I move that the Bill be now read a Second Time. This Bill has certainly one quality to commend it. It is a very simple proposal. Under the Fatal Accidents Act, the relatives of the deceased person who seek to sue the tortfeasor for the death of their relative, were allowed, under the Statute commonly known as Lord Campbell's Act, 12 months from the date of the fatal accident wherein to sue. I think I am right in saying that if the deceased person had not been killed but had survived the accident he would himself have six years in which to sue the tortfeasor responsible for the accident in which he was injured.

Under the common law, when the victim of the accident was dead his dependents had no right of action because it was held that the deceased person's right of action dies with him. It was to remedy that defect that the Fatal Accidents Act of 1846 was passed. I am reliably informed that injustice has occasionally resulted from the limitation of one year which is now imposed on the dependents of the deceased person. I understand that the infrequent cases in which dependents have lost their right of action and gone without the compensation which they would have recovered if they had started proceedings within the statutory 12 months have been due, usually, to some confusion which has resulted in time slipping by, not infrequently as a result of no lack of diligence on the part of the claimant but, perhaps, through an oversight on the part of his advisers or her advisers or their advisers, as the case might be. I understand that the likelihood of such an important event transpiring would be rendered almost non-existent if the period in which they might initiate proceedings was extended from one year to two years.

I cannot imagine that this represents any revolutionary amendment of the Statute law as to call for the appointment of a law reform committee to require examination by judges, senior counsel and others. I am not nearly as much interested in what judges, lawyers, or anybody else thinks aboutit. I submit this for the consideration of my rational fellow-citizens in this House. Is it unreasonable to afford a widow-woman two years in which to get her action under way against tortfeasors responsible for the death of her husband, or should we, draconianlike, restrict her to one? I cannot see anybody suffering any loss. Ordinarily, bereaved people who have lost the wage earner will, by their circumstances, be driven at the earliest possible moment to appeal to the courts in order to get compensation for the loss they have endured, but a case does turn up from time to time in which, for the reasons to which I have referred, they do not manage to get started within the statutory 12 months and then they may be faced with a situation that the unfortunate widow, dependent child or persons of that kind, have lost their right of action altogether.

One can argue that there is no reason to extend the period from one year to two years, that people are as likely to be caught by the two-year rule as by the one-year rule. There is no argument in principle to counter such a claim but I am informed by those qualified so to speak that the extension would, in fact, remove every conceivable possibility of hardship arising.

I have been urged to incorporate in the Bill that I bring forward certain other reforms regarding the Fatal Accidents code, notably one of bringing within the category of dependents classes of persons whom it would appear equitable to bring within that category and which have not been provided for in Lord Campbell's law. I have deliberately forborne from attempting that degree of reform because I feel that it would have left me open to the comment by the Minister for Justice that this was going rather far afield and that we ought to have the matter examined by a law reform committee in order to ascertain its implications. I, therefore, resolved to keep my proposals within the narrowest possible limits so that, if possible, we could by-pass, swim under or fly over the customary mass of red tape which is employed in order to demonstrate that it is much better to do nothing at all.

I cannot conceive of any rational being saying that there could be any serious injury done by giving the widows or orphans two years instead of one in which to seek their remedy in a court of law. That is the full extent of my modest proposal set out in the Bill, and in the name of expedition and in the name of reviving the belief in the capacity of this Oireachtas to legislate according to its own discretion, I would suggest to the Minister that he accept this Bill and that we should be jointly a party to one of the greatest miracles since Moses struck the rock that we passed an Act of Parliament without permission of the Civil Service, the Treasury, the judiciary or any other vested interest, good, bad or indifferent, but simply and solely in the interests of Oireachtas Éireann and in the interests of nobody but the humbler citizens whom we all represent in this House.

I must say that in this connection I certainly cannot see eye to eye with the mover of this Bill as I did in connection with the suggested reform of the Local Authorities (Works) Act. The House should realise that in cases of death in this or any other country to-day and where a wage earner has suffered his people lose no time at all in consulting their legal advisers. I cannot conceive how any hardship could arise under the law as it now stands. I cannot conceive of a case where a wage earner or anybody is killed that the next-of-kin or the dependents, where there are dependents, do not forthwith consult their legal advisers.

In cases of fatal accidents you have inquests at which the next-of-kin are represented. In virtually all these cases at present, there are proceedings of one kind or another before the courts. The circumstances are fully investigated either at the inquest or in the courts. Wherever there is dependency, legal advice is taken forthwith. I am not convinced by any of the reasons advanced by Deputy Dillon that the time should be extended from one to two years.

I would like the House to contemplate another aspect of the matter. If a threat of proceedings is hangingover the head of the proposed defendant like the sword of Damocles for two years, even though he may not be liable at all, it is another matter. There is 12 months to bring proceedings against him, but the House is being asked to extend that to two years. Such defendants have their worries just as much as the plaintiffs. Again, where the defendant may be covered by insurance in a car accident, insurance companies have to budget from year to year and they want to know their liabilities, at least within a certain percentage, for the particular year under review. From the point of view of the agony of mind of the proposed defendant and also from the business point of view, I see no good reason why the period should be extended.

Is 12 months the period within which they must take action?

In fatal accident cases they have 12 months at present during which they must bring the case. My experience and that of any of my colleagues I have talked to is that no hardship is created by this limitation. I want to emphasise that by virtue of the very fact that a life has been lost, legal advice is taken and invariably there are proceedings of one kind or another, irrespective of the civil liability. I cannot see the case where there would be hardship, or the type of case Deputy Dillon has in mind.

Under the provisions of Lord Campbell's Act the wife, husband, parent or child can bring an action but a brother could not do so. I take it that is what the Deputy has in mind. Take the Workmen's Compensation Act, where there must be dependency within the regulations. Even in the sad circumstances where someone is accidentally killed, I cannot see what case can be advanced, in commonsense or in law, for people making capital out of it where they never had dependency on the unfortunate individual who has lost his life. We who are engaged in the practical side of the business know that an attempt is always made to foist that on the defendant, or to create a case for partial dependency, even where someonemay never have been a dependent before. Artificial ways and means are adopted at all times to try to inflate claims by claiming dependency where it never really existed. The present law is that in the case of fatal accidents under Lord Campbell's Act the wife, husband, parent or child can recover, and I think that is quite adequate. I certainly do not know of any hardship arising under it. The present position is fair enough. Speaking individually at the moment, my reaction to the Deputy's proposals is, as they say in the country, that "I am again them".

I have a case in mind in which I am inclined to agree with Deputy Dillon. A man lost his life in the service of the State. He had a widow and three young children. There was a solicitor engaged and she hoped to get redress rather than go to court. When that effort failed and the time came when she wanted to go to court, she was told she was Statute barred. Deputy MacCarthy probably understands the case I have in mind. I am at a loss to know what hardship would be created if the period were extended to two years. In the case mentioned, I doubt if I could attribute blame to anyone but the widow herself. She consulted legal advisers and when she failed to get redress by persuasion, she found she was Statute barred. I would not object to giving her a further period and I take it that is the type of case Deputy Dillon wants to deal with.

That is the very type of case this is designed to cover.

It will help me in making up my mind, as I have not an intimate knowledge of the Campbell Act, if this point is made clear. Does the time within which a person can proceed date from the actual death or from the date of the accident? It would seem to me if it is from the time of the accident, and a person lingered on for 11 months or for 364 days, there would be only one day during which the dependent could claim. If it is from the date of death it would not seem unreasonable to allow one year for proceedings to betaken. If that point were cleared up, it would help me.

Mr. Boland

I am advised that it dates from the actual death.

I would not contradict the Minister, but I am told it is not. It is really to provide for the class of case Deputy Hickey has referred to that this is brought forward. I do not see that it can do any harm and it may do a great deal of good.

Whom will it harm?

Mr. Boland

I am in the same position with regard to this Bill. It was introduced on the 12th of the month and I have not had an opportunity of presenting this Bill either to the Government. There is, however, in the Department a draft consolidation Bill consolidating the Acts of 1846, 1864 and 1908 and I hope to present it to the Government at an early date. In the meantime, I think we ought not to pass this Bill. The Government has not had an opportunity of discussing it and if Deputy Dillon is expecting to see, as he says himself, the greatest miracle since Moses struck the rock, I am afraid I shall have to disappoint him. It is only a fortnight since the Bill got its First Reading and, as I say, I have not had an opportunity of consulting the Government. I cannot commit the Government to legislation, but I hope to have the draft Bill now in the Department, a Bill prepared in the previous Government's time to consolidate these three Acts, before the Government at a very early date. Whether that will satisfy Deputy Dillon or not, I do not know, but I am in exactly the same position with regard to it as I was in regard to the other Bill. If Deputies bring in Bills every few weeks, I cannot be expected to accept them right off no matter how I may feel personally.

I appreciate the position, but I should like to point out to the House that the Minister has a draft consolidation Bill, a Bill drafted by the previous Government, in his Department. Is that not the procedure that was adopted by the Minister forJustice and the Attorney-General, in lieu of the Minister's proposed procedure of a law reform committee, and——

Mr. Boland

We do not want a law reform committee for everything. There are certain cases in which it is necessary, but we do not want it for cases of this kind. Let the Deputy not play too much on that.

Mr. O'Higgins

That is not so.

Mr. Boland

The Deputy said that I passed no Act, but there is one which they said I could not pass which was passed, and we will pass plenty more.

The inter-Party Government decided to deal with certain matters of law reform which were obviously necessary by arranging for the Attorney-General's division to proceed with the necessary reform and there were certain reforms so obvious that it was thought unnecessary to postpone their implementation until the law reform committee——

Mr. Boland

They were postponed.

The Minister tells me that he considers this Fatal Accidents (Amendment) Bill supererogation, because he has in his hands a draft Bill prepared for him by his predecessor which he is at any moment going to bring to the Government. I want to draw the attention of the House again to this fact: the Minister himself tells us that when he came into office in 1951, a draft Bill was there and it has been sitting there for 18 months.

Mr. Boland

Other Bills sat for three years.

He says that the Government's programme is so overloaded that he cannot find it on his conscience to press them to make way for legislation of this kind. That is the very difficulty the proposals made by Deputy O'Higgins and myself to-night were designed to circumvent. Making allowance for the heavy burden carried on the Government's programme, here was an opportunity to do in Private Deputies' time that which the Ministerhimself says the Government have not time to do in their own time.

Mr. Boland

They have to consider these things all the same.

How long have these things to be considered? The Minister has had the draft Bill incorporating all the necessary amendments of the Fatal Accidents Bill in his hands for the past two years.

Why was it not introduced then?

Why? What are we all in such a state of "flusterification" about? One of the purposes for which I brought in the Bill was to reduce the proposed reform to the most microscopic size—to change the period in which an action could be started from one year to two years. There was nothing else and one would imagine that the House could say "yes" or "no" to the proposal.

I say no.

The Deputy at least has some mind on the matter, but the House is thrown into a state of confusion, alarm and frustration, while the Minister finds himself in the position in which he says he will have to consider it.

Traditions die very hard.

I can tell you what it is has preserved this tradition—that they do nothing about anything.

Mr. Boland

That was the Coalition attitude. That is what they did—anything to kill time.

They drafted this Bill.

Mr. Boland

They did, and they talked about Bills, but they did not pass them.

Mr. O'Higgins

They codified the fisheries laws, for one thing.

And they at least drafted this Bill.

Mr. Boland

They drafted plenty but did not pass any.

The Minister for Justice, on whom it is our pleasure to gaze now, has made this contribution to it, that he has sat on it and kept it warm for the past 20 months. All I am solicitous to ensure is that he will not sit for another 20 months. If the Minister will say to me that the draft Bill which is his now familiar friend, the draft Bill which has grown old in his company, will see the light of day before we adjourn for the Summer Recess, I will cheerfully consent to the adjournment of this Bill. Will the Minister say that?

Mr. Boland

The Minister will say——

Nothing. There is no use trying to get anything out of them.

Mr. Boland

Not by that sort of tactics.

I do not care a fiddle-de-dee. We had better let this business be adjourned until Tibbs' Eve.

Debate adjourned until Friday next. The Bill will appear on the Order Paper on Friday next.

The other Bills are in limbo, too, waiting hopefully for something to happen.

Debate adjourned.

The next business is motion No. 2 on the list of Private Deputies' motions.

That is adjourned.

That also is adjourned.

What is all this about? Why are all these motions being adjourned?

Because it is 11 o'clock and the Deputies interested did not expect them to come on.

What happened in my case the other night? I object to these being adjourned. I think it is a disgrace.

Move them yourself, then.

Nobody is entitled to say that the Dáil should be adjourned. If they are not moved then they disappear.

Mr. O'Higgins

They do not.

They do not disappear. They go to the end of the list.

Do you remember what happened the other night at ten past 11 when I came in on my motion? I asked the indulgence of the House to leave it over until the following morning.

It was an amendment.

Deputy Corish was the one man who objected to that being done.

The Deputy may not make a speech on this.

I am not making a speech. I am making an objection.

It seems to me that the members of the Labour Party who put down these motions on the Order Paper are treating the Dáil and the Ministers with contempt.

Mr. O'Higgins

On a point of order. Is it not remarkable that the Minister comes to the assistance of the Red Nuncio so quickly?

I am speaking as a member of this House——

Motion No. 7. Deputy Cogan.

I am raising a point of order.

Motion No. 7. Deputy Cogan.

I am raising a point of order. Motions have been put down for discussion in Private Members' time. They are put down with a flair and a blaze of trumpets. When they come before the House for consideration we find that the movers of them do not pay the House the courtesy of being present to move them. I object to that. I think it is a disgraceful performance.

Hear, hear!

They did not expect to be called.

Three of these motions are in the name of Deputy Dunne who occupied a considerable portion of the time of this House——

Mr. O'Higgins

On a point of order.

I suppose he has not taken the precaution of giving his speech in advance to the Daily Mail.

Mr. O'Higgins

Is it in order for the Minister for Finance and Deputy Cowan to avail of this opportunity to attack Deputies in relation to motions which they put down for discussion? Speeches have been made of an obvious inflammatory political kind both by the Minister for Finance and by the leader of the Vanguard.

Look at the lover of peace.

Is it not appropriate to say for the record that the discussion on the two Private Deputies' Bills— which was scheduled to-day and mentioned by the Parliamentary Secretary when ordering business—concluded earlier than was anticipated by anybody and that any Deputy having his name to a Private Deputies' motion would probably assume that the motion would not come forward for consideration to-night, as a reasonable anticipation of the procedure of the House wouldentitle anyone to believe that the two Bills which were being discussed would occupy the available time? That is for the record—and the Minister for Finance can jump up and down like a jack-in-the-box because nobody pays the least attention to what he does.

I want to put a point of order in relation to Motion No. 4.

I understand that you passed No. 4.

No. I challenge the right of Deputy Corish, who is neither the mover nor the seconder of this motion, to ask the Dáil to adjourn. That, however, is not the point of order which I wish to raise. I wish to call attention to the terms of this motion.

Mr. O'Higgins

Is that the point of order?

Mr. O'Higgins

Raise it and sit down.

The Minister realises that the motion is not before the House for discussion?

You called Motion No. 4 and Deputy Corish—with what authority I do not know—said "adjourn". I wanted to raise a point of order on the question of this motion—since you called it, Sir.

On a point of order. A point of order has been raised. Let it be ruled on. Has the point of order asked for by the Minister for Finance been ruled on? If not, let it be ruled on.

I have not raised a point of order.

You have.

I did not put the point of order. I want to call the attention of the House to the terms of this motion.

I object to that. TheMinister may not draw your attention, Sir, to the terms of a motion not under discussion. Make him sit down.

Mr. MacEntee rose.

Chair, chair!

Can the Minister discuss a motion when the Chair rules he cannot?

The Minister will not be allowed to discuss the motion but the Chair wants to hear what the Minister has to say.

I do not propose to discuss the motion. I am calling your attention to the terms of the motion.

Have you not called Deputy Cogan, Sir?

I am putting this point of order to the Chair.

I repeat, have you not called Deputy Cogan?

Will Deputy Dillon allow the Minister to make the point of order?

He is not making a point of order.

Is it proper that a motion in the terms that I am going to recite should appear on the Order Paper?

"That Dáil Éireann considers that the Agricultural Workers (Holidays)——"

Mr. O'Higgins

On a point of order.

Sir, on a further point of order. Am I to understand that the Minister for Finance's question is whether or not a particular motion should be on the Order Paper?

"——Act, 1950, should be amended so that agricultural workers——"

The Minister is making his point of order.

"——shall be entitled to statutory public holidays without loss of pay."

It is quite obvious that Deputy Corish does not want this motion——

The Minister has no right to turn this House into a bear garden.

On a point of order.

I am in possession. I would call the attention of the House——

Mr. O'Higgins

Has the Chair ruled on my point of order?

——to the fact that a Bill to amend the Agricultural Workers (Holidays) Act of 1950 was before this House a few weeks ago and that this motion——

Surely this motion is not before the House?

This question could very properly have been discussed on the Second Reading of that Bill.

The Minister has no right to turn this House into a bear garden, to trample on the Rules of Order and everything else.

It should not appear. Under the Standing Orders of Dáil Éireann, it should not appear on the Order Paper.

The Minister is a disgrace to this Government and to the Legislature.

Is the Minister for Finance entitled to allege against the Chair that a motion on the Order Paper is not entitled to be there?

The Minister is entitled to point to the wasting of time.

At the first opportunity available to me, I will put a point of order to the Chair.

I raised the original point of order.

The Chair says to the Minister that the motion on the Order Paper is in order.

No, Sir. It is not.

I raised the original point of order.

I am calling on Deputy Cogan to move Motion No. 7.

All right.

In the absence of Deputy Dunne to move his motion.

In the absence of the movers of the other motions.

On a point of explanation. I could have sat here and remained silent in view of the fact that as the Deputies were not here to move them, these motions are automatically put to the end of the list. I thought it would facilitate the business of the House by my saying "adjourn".

You are only exculpating.

But only last Thursday night when I said at ten past 11—having been in the House all day—that I was tired, I asked the House to leave the matter over until the morning. Deputy Corish was the one man who objected to it.

You were on an amendment.

He puts the screw on me but he will not bring his Deputies in here—

You insisted on sitting until 11.30 p.m.

You are only codding.

You have codded a few Parties.

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