Dáil Éireann debate -
Wednesday, 16 Nov 1955

Vol. 153 No. 6

Committee on Finance. - Fatal Injuries Bill, 1954—Second Stage.

Minister for Justice (Mr. Everett)

I move that the Bill be now read a Second Time. The purpose of this Bill, which had its origin with the late Mr. Justice Casey when he was Attorney-General, is to consolidate with amendments what are known as the Fatal Accidents Acts. These Acts are three in number and were enacted in 1846, 1864 and 1908. At the time the original Act— generally called Lord Campbell's Act —was framed over a century ago, the spread of railway communications had caused a great increase in the number of fatal accidents. Prior to 1846, the law was that "in a civil court the death of a human being could not be complained of as an injury", and no person had a legally protected interest in the life of another. To this law there has been an exception in this country which resulted from a provision in the Grand Jury Act, 1836, providing for compensation to be awarded by the old County Court to the personal representative of a deceased killed for giving information or evidence against a person or persons charged with any offence against the public peace, the amount awarded to be raised from local rates. This provision, which applied also in the case of the death of a magistrate or a peace officer, was and continues to be peculiar to Ireland. Under the law in England and Ireland since Lord Campbell's Act of 1846, the members of the family of a deceased person may, through the personal representative or by themselves, bring an action against the wrongdoer who by his tortious act has caused the death of the deceased, irrespective of the circumstances of the death.

The Bill is, under Section 1, designed to come into operation on the 1st January next and the proposed legislation will not apply in relation to any death before that date.

Section 2 of the Bill defines dependents as the members of the family who suffer loss. It is proposed to increase these members by adding in the brothers and sisters of the deceased and the half-brothers and half-sisters, persons not covered in the existing legislation. In doing this we are following the precedent of the Workmen's Compensation Act, 1934, the Air Navigation and Transport Act, 1936, and the Garda Síochána (Compensation) Act, 1941. In addition to what may be called the ordinary members of a family, the section covers adopted persons and illegitimate persons. The provision concerning adopted persons is already part of the law by reason of the Adoption Act, 1952, but the provision as to illegitimate persons is new.

A specific provision for such persons will be found in that portion of the Air Navigation and Transport Act, 1936, which deals with fatal air accidents and also in the Workmen's Compensation Act, 1934. The question of whether it is desirable further to extend the category of dependents who may succeed in an ordinary fatal accident action has received a careful and detailed examination, but, if Deputies are of opinion that the section in the Bill should be amended, the Government are quite willing to examine any specific proposals made in this debate or on Committee. For instance, we have been considering a provision to cover persons who were in the position of a parent to the deceased and persons to whom the deceased stood in the position of a parent.

We have also had in mind the question of aged relatives wholly or mainly dependent on the deceased. One of the dangers—and it is a very real one—of increasing the dependents is that insurance companies could be tempted to increase accident premiums to cover their enlarged liability. Another danger is that juries might tend in some cases to decide to award roughly the same total amount irrespective of the fact that additional dependents, not strictly members of the family, were covered. The result could then well be to cut down the sums which would go to the major sufferers, namely the wife and children. Dependents are covered by the Workmen's Compensation Act, 1934, but the provision is rather wide, and includes persons who are not relatives and who should not, we think, be covered in the present Bill.

Apart from this, the total liability under the 1934 Act, as amended, is specifically limited in amount to £1,800. Brothers and sisters were not included when the Fatal Accidents Acts were amended in Britain in 1934 and in the Six Counties in 1937. Brothers and sisters, persons in the position of a parent to the deceased and persons to whom the deceased stood in the position of a parent are covered in some of the provinces of Canada. Further, under a Superannuation Warrant of 1946 in this country, where a civil servant is killed in the course of his duties children to whom the deceased stood in the position of a parent are amongst those entitled to allowances from the Minister for Finance.

I have dealt with this matter of dependents at some length, first of all, in order to give Deputies an idea of the background of Section 2, and, secondly, because I want to point out that a statement which recently appeared in the Press that we fell into the error of merely copying the definition of "member of a family" or dependent from the Workmen's Compensation Act, 1934, is not accurate. In fact, the section follows rather the Air Act of 1936 with the addition of adopted persons. The Government did not rush into this matter and take any convenient definition they found. We examined all the legislation dealing with fatal cases in this country, going back even to the Grand Jury Act of 1836, we looked at the law in Britain and the Six Counties, and we went abroad as far as Canada. We were aware that, when the matter was considered by a distinguished committee across the water, it was recommended that adopted persons and illegitimate persons only should be added and that there was no recommendation about brothers and sisters and other dependents.

Before I leave Section 2 I might as well say that, though we think that the limitation in the section to close relatives may not theoretically be ideal, it is, in our view, practically sound as, otherwise, it might be difficult to draw the line. Still, if the section can be improved without bringing in too many people, we are willing to improve it and will give careful consideration to any suggestion. The difficulty is to find a suitable draft which will make for a definite and clear limitation.

Section 3 re-enacts the existing law which makes a tortfeasor who causes death liable in damages. Sub-section (4) extends the period of limitation from one year to three years. We think one year is too short.

Section 4 is the damages section. Here again we gave much thought to the question of improving the existing provision in the 1846 Act, as many people consider that the awards in fatal cases are too small. We tried another definition of damages, but eventually abandoned it, because we felt it might only lead to a lot of litigation to determine what it actually meant in specific cases and also because we were convinced that in the final result it would place the dependents in no better position.

Sub-section (1) of the section follows the 1846 Act and the proposal is that damages will continue to be proportioned to the injury resulting from the death. The law is that damages are to be such as will represent the pecuniary loss sustained by the relatives, that is to say, the actual and probable loss estimated in money, as far as such things can be estimated in money. Sentimental damages are not awarded. Nothing is given for bereavement or pain and suffering or for loss of the society of the deceased. As a learned judge put the matter some years ago: "It is a hard matter of pounds, shillings and pence, subject to the element of reasonable future probabilities."

It has been argued that this should not be so, but it is impractical to introduce the speculation which would be inherent in putting in money terms the sentimental loss of a relative, and we doubt if it should be attempted. Be all this as it may, there is a strong and reasonable case made by those who say that awards should be bigger under the existing law. This can only be achieved, however, if in the long run the courts are persuaded to be more liberal in their awards. Such persuasion is for the members of the legal profession and there is nothing practical the Legislature can do to help.

The Bill, although it follows the existing definition of damages will, however, mean that greater amounts may in future be awarded. Under sub-section (2) of Section 4, damages may be awarded for expenses such as funeral and medical expenses actually incurred.

Section 5 goes further still by providing that in assessing damages account shall not be taken of any pension, gratuity or other like benefit payable under statute or otherwise in consequence of the death of the deceased. Insurance payable on the death is also not to be taken into account but this has been the law since 1908. The provision as to pensions and gratuities is new and should be a very great benefit to the relatives of a deceased who are entitled to pensions and gratuities consequent on his death.

At present, if a person is killed by the negligence of another and the widow and children become entitled to a gratuity or pension, other than a social welfare benefit, the payments to which they are entitled must be taken into account in assessing damages, and this as far as we know is the law in other countries. It is certainly the law in England and in the Six Counties and it is the law in Canada. Pensions and allowances payable under the Widows' and Orphans' Pensions Acts, 1935 to 1952, benefits to widows and orphans under the Social Welfare Act, 1952, and children's allowances under the Children's Allowances Acts, 1944 to 1952, are not taken into account in assessing damages, but these constitute fairly small sums when compared with the amount awarded as damages.

The Bill proposes in addition that no amounts, except, of course, workmen's compensation, payable under statute or otherwise on the death are to be taken into account in assessing damages. This means that the relatives of a deceased person will be entitled to the pension and gratuity payable as a result of the death as well as full damages calculated as if no pension or gratuity were payable. Statutory pensions and gratuities are payable under the Superannuation Acts, 1834 to 1954, the Local Government (Superannuation) Act, 1948, the Mental Treatment Act, 1945, the Police Forces Amalgamation Act, 1925, the Army Pensions Acts, 1923 to 1953, the Defence Forces (Pensions) Acts, 1932 to 1949, and the Ministers and Parliamentary Offices Acts, 1938 to 1952.

Companies like the E.S.B. have pension schemes for the widows and children of their officers and payments under these schemes will be excluded in calculating damages, and so also will similar payments made by an ordinary public or private company.

A simple example will illustrate the effect of the provision. If a serving civil servant dies, his wife is entitled to a gratuity equal to a year's salary. Suppose that the gratuity comes to £500 and that, in addition, the widow has a good cause of action by reason of the fact that her husband's death is caused by the negligent act of another person. In assessing damages under the existing legislation, the court must take into account the fact that the widow is entitled to £500 and the damages will be reduced accordingly, so that where, if there was no question of a gratuity, she would have been awarded £2,000, she will as the widow of the civil servant get only £1,500.

Under the Bill, she will be entitled to the full award of £2,000 from the court and she will get the £500 gratuity as well from the Minister for Finance. Thus she will be £500 better off. By the way, I might mention that there is another side to a case like this. It is possible to prevent the widow reaping the benefit of the proposal in the Bill by a provision in the pension legislation that the gratuity is to be subject to deduction on account of compensation received in respect of the death. There were provisions to this effect in the Garda Síochána Pensions Orders, but they were repealed in the 1955 Order.

In coming to the conclusion that all gratuities and pensions payable in the ordinary way on death should not be taken into account in computing fatal injury damages, the Government acted on the principle that these gratuities and pensions are in fact portion of the emoluments of the deceased. In other words, he has earned them and in calculating his pay it is to be presumed that account is taken of the fact that on his death his widow and children will be entitled to a gratuity or pension. In some cases he will have contributed towards the benefits payable to his family.

Section 6 of the Bill provides for the survival of causes of action against the estate of a deceased tortfeasor and is on the lines of Section 171 of the Road Traffic Act, 1933, which deals with proceedings against the estate of a deceased person who has been liable for the negligent driving or management of a mechanically propelled vehicle.

Section 7 deals with death caused by the negligent driving of a State-owned vehicle and is also taken from the 1933 Road Traffic Act.

Section 8 adapts any references in existing legislation to the Fatal Accidents Acts.

Section 9 is the repeals section and Section 10 is the Short Title section.

I recommend the Bill to the House. It contains a valuable piece of consolidation and in addition makes desirable amendments in the existing legislation.

Major de Valera

This is essentially a consolidation Bill and, in principle, I do not see any objection to it. I would suggest, however, that the approach in framing it has been conditioned almost too much by previous measures. The Minister has used the word "consolidation". It is consolidation with improvement, but whether it might not have been better to move for a radical amendment, leaving a simpler situation to be dealt with by the courts, is another question.

If one man injured another, the injured party had a right at common law to take an action. If the injured party was killed, that right of action died with him. That situation led to difficulties in the case of those Acts which are now being repealed, Acts which were designed to redress or overcome that situation. Instead of doing the simple thing, namely, putting in any other injured person, injured indirectly from the tort which killed the person directly injured, and enabling that person to sue as if he were directly injured, a very hedged-in and artificial scheme was introduced in the 1946 Act. Only certain people, limited as a class rather than limited in relation to actual damage, were given the right to sue, in effect, in place of the deceased or in consequence of his decease. Consequently, there were certain formalities introduced in the past and the amending Acts which are now being repealed here were merely consequential.

The essential difference is that when giving a right of action arising out of the death of a person to the people indirectly injured, such as the people named in the original Act, a wife, a husband, a parent, a child, and so forth, that right was given for the benefit of a class. I cannot see any reason why it should not be framed to provide that any person who suffers damage through a tort should be able to maintain an action to recover the damage done, because that is the essence of the whole case.

Why do we want a husband, a wife, a relative or any other person to recover damages arising out of a tort which killed a person who would have had an action himself had he survived? Why do we want to continue that action? Simply because these specific persons have suffered damage through that tort, and, in principle, we are seeking to establish an action to enable these people who have suffered to recover damages now. Now if that were the position, I would recommend the Bill; but in the Bill now before the House, the approach is to put in any person who, in effect, suffers damage and put the onus on that person of proving the damage resulting from the tort. However, that is largely an academic matter.

We have, in effect, continued here the old idea that a certain class can sue and recover damages, that class being based mainly on relationship; but the relationship provided for is somewhat wider than that contained in the original Acts. To that extent, the Minister has done well, but I still wonder whether it would not have been simpler from the point of view of enforcing the rights which are intended to be given under this Bill to make the approach a more general one, by going to the root of the matter and including persons substantially damaged through this tort; and, having asked the question as to who has been substantially damaged through this tort, then, let them recover damages in proportion, if they have been so damaged.

That is a matter of principle. Passing from that, I think this Bill fundamentally is as defective as the original Acts, but, in so far as the original framework is capable of improvement, there are improvements in this Bill. I am not up-to-date on the Rules of Court and perhaps some of the practising lawyers would help us on this point. Sub-section (3) of Section 3 states:—

"The action may with the consent of all the parties be heard and determined by a judge without a jury but, in the absence of such consent, shall be heard and determined by a judge with a jury."

I take it these rights will be enforceable in tort actions in the Circuit Court. I take it the Act will apply to the Circuit Court jurisdication. As I read this section, it seems to imply that one must have a jury in the Circuit Court, unless there is consent to have it tried by a judge. I thought the position in the Circuit Court was that trial would be without a jury in tort actions, unless by special request. Juries went out of fashion in the Circuit Court from 1936 onwards.

Mr. Lindsay

Consent is implied.

Mr. MacBride

Is it not very unlikely that such an action would be taken in the Circuit Court?

Major de Valera

It could be within the jurisdiction.

Mr. MacBride

£600?

Major de Valera

It is unlikely, but it could be. I merely raise the point for what it is worth. That is something which could be re-examined, if there is anything in it. The remainder of the amendments to the 1864 and the 1908 Acts are, generally speaking, incorporated in this Bill, and there is very little else one can say by way of criticism or praise of the measure.

The Minister gave a fairly full description of what is in the Act. Apart from extending the three-year limit, giving a rather wider jurisdiction in so far as the claimant is concerned and a wider possibility for claiming by extending the definition, there is relatively little new in the Bill. I think the extension of the period is a very proper one, and I wonder why the period in this type of action should not be the same as in other comparable tort actions or, indeed, why there should be a statutory limit at all. This is reminiscent of the situation in relation to local authorities, a situation which has caused a good deal of trouble. Indeed, the particular one we are dealing with has also caused trouble.

The Bill in its present form will get away from certain technicalities in pleading, technicalities which have been a nuisance on occasions in these Lord Campbell Act cases. On the whole, there is nothing very new in this Bill. I see no reason why it should not pass. If, however, we are thinking of originality in our approach to these matters, on a fundamental basis, I cannot see that there is very much originality shown in this measure.

Mr. Lindsay

I rise to support this Bill. At the very outset, let me say that I do not agree with Deputy de Valera who says that there is no originality in this Bill. There is a very large measure of originality in it, in so far as there is a very definite invasion being made in this Bill on well-known legal maxims which have survived for a very long time. However, I will come to that at a later stage of my remarks.

Section 2 of this Bill, I welcome very cordially having regard not alone to my academic knowledge of the need for such an extension of the class of dependents, but also having regard to my own experience in practice in the courts. Even here, the exension now given leaves out people who, to my knowledge, should be included and people who, to the knowledge of every Deputy, occupy positions in families and in households all over this country that are to be regarded as positions of strict dependency in the case of death by accident of a member of the family in which they reside.

Take, for instance, the position of spinsters and aged aunts or bachelors and aged uncles living in a household who are dependent upon a married nephew or niece, or some such person. Take further the position of a young person who would be a relative and would not come within the scope of the people contemplated in Section 2 (a) and (b), who would be a sort of ward within the family, a child who was brought there very young, some kind of relative, may be a distant cousin or a child of a deceased sister or brother, and who would be for everything dependent upon the person who was killed in the accident. I would strongly commend to the Minister and to his advisers to include in this class of persons, which they have now very happily extended, as compared with the original Act, those people I mention, aunts and uncles and people who would be in the position of being in loco parentis generally.

I am glad to see that in Section 2(b) an illegitimate person shall be considered the legitimate offspring of his mother and reputed father. I am happy to see that the position is being rectified in legislation that is coming before us now and that it is becoming a feature of legislation to recognise the very equitable principle that the sins, if indeed sins they have been, of the people responsible for bringing such persons into this world, should be visited upon the persons themselves. I welcome that feature of this Bill particularly, because as long as human nature is what it is, you will always have such persons living in our midst.

Section 3 deals with the question of a hearing by a judge, with the consent of all the parties, or, in the absence of consent, by a judge and a jury. That is no departure at all from what the law is at the moment in the Circuit Court in relation to fatal accidents—that the action be commenced within three years after death. I have no quarrel with the three-year limitation; that is an increase from the present limitation of one year under the Lord Campbell Act. But I would like the Minister and his advisers, and the Government generally, to direct their attention towards a limitation incorporated in legislation such as this and try to have uniformity of limitation for all matters, so that our limitation within statutes, shall we say, would incidentally be an ease to the person who was seeking the remedy and would also make the life of the lawyers less difficult. Keeping an eye on periods of limitation, so that nothing will be lost in the interests of their clients, is often a very great heartache and headache to lawyers from time to time.

On the section dealing with damages, there is something new. It is very new and at this stage I might as well make the point that, in my experience, it would always appear that juries in awarding damages, or even judges in awarding damages on the lines they must follow as laid down for them, award more substantial damages to a maimed person than they do to the dependent of a person who dies in an accident. I must confess I have never been able to see the reason why, say, the maimed head of a household should get a very large sum in damages in contrast to the very low amount which his dependents would get, if he had died. I see no reason why the damages in this case should not be the same.

Damages, in my opinion, and particularly for the purpose of this Bill, if the definition is to be accepted, should be of such amount as would place the charges dependent upon the deceased in the same material position as if that decease had not taken place, due regard being had, of course, to the period of time during which those dependents would have been real dependents. It is necessary under the existing law that an actuary be brought in to assess the worth, as it were, to the dependents of the deceased's income and contribution to them as dependents. That became necessary, owing to a well-known case of Gallagher v. the E.S.B. in 1933, which put the assessing on a very mathematical basis. An actuary was brought in and the death of a person arising out of an accident was made very much a matter of pounds, shillings and pence, and very often pence were resorted to in this type of assessment.

I am pleased to see in Section 5 that certain sums, the sums as outlined by the Minister in the examples he gave, are not to be taken into account in the assessment of damages. This is a matter to which I must give certain further consideration—whether it would be a good thing to have some sort of clause added to Section 5 that would make any attempt to give evidence of such sums, benefits, pensions, opportunities inadmissible. There would always be a temptation there on the part of defendants to get across to the jury or the judge that the person making the claim was not really as badly off as he would like the court to believe. The survival of the cause of action on the death of the tortfeasor is a very definite departure from the existing practice in relation to the fatal accidents code. As such it would be welcome, because my own view, and other people might come to the same conclusion, is that legal maxims were drafted in an age in which law was largely the prerequisite and avocation of the privileged classes. That is a personal view of my own, but I am inclined to think that there is something in it.

Adverting for a moment to the question of damages, I think that damages should include something for the loss of expectation of life to the particular estate and that there should be some award to the estate claiming for the pain and suffering of the deceased prior to his death. These are matters which should be carefully considered, and while the Minister says that he and the advisers of the Government have gone to great lengths to get a definition of damages, I think that such a definition should be as wide as possible, having regard to the changing circumstances of our times. There is no point in trying to have these things assessed on an actuarial basis any longer. I can see no point in the continuance of the practice that a maimed person should receive more than his dependents would receive if he died.

This, on the whole, is a very welcome piece of legislation. It certainly goes a long way towards curing the defects which I have noticed myself in the fatal accidents code up to now and those which I have often discussed with my colleagues. I do not accept the view of Deputy Vivion de Valera that it should include any person who can prove that he has suffered damage. You would have all classes of persons coming in and making the claim that they had suffered loss. It would be a welcome provision for practitioners, but it would be a very serious impediment to the working and progress of the courts. I hope the Minister will include in the Bill provision for people like aunts and uncles, married or unmarried, and also people who stand in loco parentis. I would ask him to try to find some sort of basis on which damages can be assessed, without reference to the mathematical practice of doing it on an actuarial basis.

Mr. MacBride

I should like to welcome this Bill. I must say that one of the problems which I have been confronted with in the courts is to explain the disparity which seems to exist between the amount of compensation awarded in the case of a personal injury as against a fatal accident case. I remember, not long ago, dealing with two such cases in one week. One was the case of a fairly young widow with two children whose husband had been killed. She obtained the sum of £1,200 compensation for herself and the two children. On the actuarial basis, that was the correct amount.

In the same week, I obtained for a man who had suffered some injuries which affected his appearance and his capacity for speech—it did not impede his powers of speech but his palate was damaged and it affected his enunciation—a payment of £5,000 for damages. Obviously, it was difficult to explain to the young widow who had lost her husband, who was a labouring man, and who was left with two young children, why she only obtained £1,200 as against the case of the man who had only been disfigured, but who had got £5,000. That is an experience which every lawyer has had and it is difficult to explain to the public generally the disparity in the damages in a fatal accident case as against the damages in a personal injury case. This Bill tries to remedy that situation and our purpose here should be to ensure that it remedies it as thoroughly as possible.

Like the last speaker, I should like to urge upon the Government the possibility of extending the definition of dependents, though not in quite as wide a sense as Deputy de Valera suggested, because his suggestion would give rise to many difficulties. Many small claims would be made by persons who suffered very remotely from a death. However, I can visualise many cases where a severe loss would be felt by somebody not in the class of relatives set out in Section 2. There is the case mentioned by Deputy Lindsay of an uncle or an aunt who might be entirely dependent upon the earnings of a niece or a nephew. Such people should be provided for. There are, particularly in the country, many instances of elderly people who are dependent entirely on the earnings of a nephew or niece. If that nephew or niece is killed, due to the negligence or wrongdoing of another person, I think it is only right that the uncle or aunt dependent upon their earnings should be compensated.

I would suggest, if possible, the finding of some definition that would include more than an aunt or an uncle, that would include a person standing in loco parentis or dependent upon an income from the deceased.

I can appreciate fully the difficulties of finding a definition that would cover the whole situation. However, I hope that, between this and the Committee Stage, it may be possible for the Government to consider extending the definition. The definition, as contained in the Bill, is a definition which is more or less equivalent to the definition in the workmen's compensation code and in the aerial navigation code, but certainly we should at least cover the case of the uncle and aunt and nephew and niece who may be dependent upon a deceased person.

I am inclined to agree with Deputy de Valera that it is very hard to see why the separate period of time limitation is imposed by the Bill as distinct from the ordinary tort. I think we all agree that the earlier limitation of 12 months was too short and in many cases it did inflict an injustice or a hardship on the persons who suffered a loss of this nature. A period of three years, from a practical point of view, is probably adequate, and possibly my objection to it is purely the lawyer's objection, that it is difficult to remember that in some particular action one has to bring the case within a certain period of time, whereas, in others, it is six years. It would simplify matters if it were put on the same basis as an ordinary tort where there is a period of six years.

I do not think it would affect the issue very much, but it would make it simpler from the lawyer's point of view. That may not be a good reason to change it, but it would be a reason. The more we can simplify matters of that kind, probably the better. However, it is not an extremely important point because any action would be brought well within the three years, unless there were strong reasons against it.

Likewise, I agree entirely with the extension of the provisions in the Bill that deal with damages. There is one sub-section of Section 4 that might possibly need further examination. Sub-section (4) of Section 4 provides:—

"The amount recovered in the action shall, after deducting the costs not recovered from the defendant, be divided among the parties entitled in such shares as the jury or the judge, as the case may be, may have determined."

I wonder to what extent that is feasible? Let me put this possible difficulty; it is a difficulty that might be overcome: How will a jury proceed to assess the amount of damages in different shares after the costs have been determined? The jury will have finished its work, once the action has been determined. The costs are assessed afterwards. Unless the jury determine purely on a percentage basis, I do not see how they could determine the amount of compensation after the deduction of the costs which may be payable by and on behalf of the plaintiff. It probably could be done by the jury deciding the percentage of the amount to which each was entitled.

Also, there is this difficulty—there may be nothing in it; I am talking rather at random on this, without really having given it a great deal of consideration: Assuming that the action is brought, that notice of trial is served with a jury, at that stage, that the jury has the assessment of the case, so to speak; it is an action which has to be tried and determined by a jury. It very often happens that between the time notice of trial is served and the trial is due to take place, the case is compromised. If that happens, does it mean that a jury will have to be empanelled to apportion the amount between the different relatives? There may be nothing in that apparent difficulty. I am just mentioning it so that it may be considered. Assuming that an action is set down for trial by a judge and jury, that an offer is made by the insurance company or the defendants which is acceptable to the parties, does it then mean that the action will have to come before a jury in any event in order that the jury may apportion the amount agreed upon between the different dependents?

In regard to Section 5, might I suggest that the addition of a further sub-section or paragraph be considered? Section 5, as the House will recall, provides that, in assessing damages, no account shall be taken of certain things. No account shall be taken of sums payable on the death of the deceased under any contract of insurance; no account shall be taken of any pension, gratuity or benefit payable under statute or otherwise in consequence of the death of the deceased.

In some cases, I do know that legacies and inheritances or gifts arising from the death have been taken into account and can be taken into account. Would it be well to exclude also from account any legacy, inheritance or other gift resulting from the death of the deceased? I am merely raising that as a point worth considering.

Of course, one of the difficulties in dealing with fatal accidents is that one never wishes to create a situation whereby a person will benefit unduly from the death of somebody else. Obviously, in principle, that would be wrong. All we are anxious to ensure, I take it, is that a person shall not suffer financially by reason of the death of a person. A case might arise where a child, for instance, might receive some legacy or benefit following upon a death and where these benefits would in no way be adequate in part or in whole for the loss sustained by the child. I just mention these few points in the hope that the Government and the Minister might consider them before the Committee Stage.

I should like to add that the Bill is long overdue. As far as fatal accidents are concerned, it is practically a revolution in the existing state of the law. It is an immense improvement in the position that has existed and I welcome it. I think we should aim at seeing whether there are any other improvements in the existing law which could be made before the Committee Stage. I hope it may be possible to extend the scope of the Bill a little bit more to ensure that under the various headings—the headings of dependency and of damages—it will get rid of a number of the existing anomalies.

Mr. Finlay

I, too, would like to welcome this Bill in its general terms and in its intentions. Like Deputy MacBride, there are two or three matters which I should like to mention at this stage so that the Minister might consider them before Committee Stage. With regard to what has been said by Deputies Lindsay and MacBride—I am afraid I missed some of what Deputy de Valera said in connection with the definition of family and class to be embraced by the Bill—I agree there is a grave danger that if you extend that, as Deputy Lindsay suggested it might be extended, to aunts and uncles, you will leave a defendant guilty of tort at a peculiar disadvantage. It is almost inevitable that the question of contribution of dependency is something peculiarly within the knowledge of the plaintiff and is a matter which a defendant cannot investigate or controvert.

That is the inevitable disadvantage of a defendant in an action under this Bill. It does seem to me sufficiently important to make it worth while restricting the class and I would ask the Minister with regard to the class of person to be embraced to try to devise some watertight method of letting in genuinely adopted children as distinct and apart from legally adopted children. The present position is that, apart from blood relations— fully lawful blood relations—there are two classes also included; one, children legally adopted and the other, illegitimate children. In reality, there is inevitably in the country quite a large class of persons who are in fact adopted. Perhaps relations of some family have taken over the entire responsibility for bringing up the children of that family—the responsibility both financial and moral. That responsibility may have been taken on without going through the formality of legally adopting the child.

I should not like to see that class, which I think is not very large, excluded from this Bill, and, while I would say that otherwise I would not be in favour of an extension of the members of a family under the Bill, I should like the Minister to consider widening it to the extent of embracing the class of genuinely adopted children, though they are not legally adopted.

With regard to Section 3 of the Bill, there is one part with which I would be somewhat concerned. It is sub-section (3) which provides that, in the absence of the consent of both parties, the action shall be tried by a jury. That is an innovation, as far as I am aware.

Major de Valera

I raised that point and Deputy Lindsay said is coincided with the existing rule.

Mr. Finlay

As far as I know, it is a complete innovation.

Major de Valera

I think the Deputy is right.

Mr. Finlay

With regard to the Circuit Court, as far as I am aware, the present position is that a jury can be obtained only if the plaintiff seeks it or if the defendant seeks it. There is no necessity, as far as I know, to obtain the consent of both parties to proceed with any action without a jury. In the High Court, as I understand it, a plaintiff in any form of action may serve notice to have the action tried by a judge without a jury, and, if the defendant acquiesces the action is tried without a jury. I think the difficulty which arises here is that you are going to require some document of consent from the parties to have a matter tried without a jury. I can see a situation under which the ordinary rules of court for tort actions would at some stage vary with regard to jury provision and I can see the necessity for the exclusion of sub-section (3) of Section 3. This particular form of action should be on all-fours with any other type of action for tort and should be covered by whatever provisions there are with regard to jury trials. I would leave the Bill silent on the question of how the matter should be tried, except that I would have provision whereby the Circuit and High Courts would have jurisdiction as in any other tort; and, if there is to be any alteration in the future, that it could be done merely by an alteration in the rules of court, without making provision in this Bill.

With regard to the provision for damages, I welcome it in its entirety. It would seem much more fair and equitable in regard to the question of loss suffered by persons as the result of a death of a person on whom they were dependent. I think Deputy MacBride possibly has some point with regard to the difficulty of administering sub-section (4) of Section 4, but I would not like to see the provision in that sub-section being done away with in any way. So far as I am aware, the present position is that an aggrieved person, say, the widow of a deceased man, bringing an action under the Fatal Accidents Acts, brings the action and gets a decree, and the matter of costs is disposed of on a party and party basis.

The decree may be in respect of herself and three minor children, and the judge apportions the amount. The amount awarded to the widow is paid out and the children's amounts are lodged in court. There may be a large discrepancy between the amount the widow is awarded and the amounts payable to the children. I know of no method whereby the widow may share with the children the discrepancy between party and party costs, and solicitor and client costs. She has, in fact, to pay the whole of the extra costs of the action, and therefore, while it may be necessary in Committee again to consider sub-section (4) of Section 4 with regard to its working, I would not like to see the principle enshrined in it disappear altogether.

There is one other matter in relation to the Bill which I should like to raise now. It deals with Section 7 and it may involve too large an amendment, but I would ask the Minister to consider the matter before the Committee Stage. As I understand the existing situation the dependents of a person who is knocked down by an army lorry or a post office van in the road and who dies, have a claim against the Minister for Finance under Section 7. His claim is on the same basis as if he had been knocked down by a privately-owned vehicle. Unless I am wrong, if a person is killed as a result of the negligent action of a servant of the Post Office or of the Army, other than the person driving the vehicle—the classical example is that of a man who is knocked down and fatally injured on a street where a lorry is being unloaded and a servant hits the man with a swinging bar—that person or his dependents have no remedy against the State, the position being that the helper on the State vehicle, if he is not driving the vehicle, does not come within the artificial liability created by Section 7. He is the only person responsible for his negligent action and there is no way in which the State can be made responsible.

I appreciate that that applies both to persons who are injured but not killed, and to the dependents of those who are killed. When considering this Bill, and this section which creates the responsibility of the State for the negligence of their servants, there is a very considerable case to be made, on this section alone, for the inclusion of a provision whereby a person other than the driver of the State vehicle could be held responsible as the servant of the State. The old rule, whereby a servant of the State was not in the employment of the Crown, is no longer applicable and the more the State involves itself in the day-to-day business affairs of the country the better. A common example is the land reclamation and drainage schemes which take place throughout the country. Somebody may be killed as a result of the negligence of a person working directly as the servant of the Government but the person or the dependents of the person who is injured have no redress if the servant guilty of the negligent action was not the driver of a mechanically propelled vehicle. I would ask the Minister to consider whether, in all equity, there is a case to be made for creating artificial responsibility for driving and not for other torts of any description.

Major de Valera

Would the Deputy consider putting down an amendment on those lines?

Mr. Finlay

It would involve more than an amendment; it would mean a new section. I think if this provision remains as it is we would be creating the peculiar anomaly whereby, if a man were multilated and did not die, he would not have any action whereas if he did die his dependents would have an action.

Major de Valera

The Deputy has an excellent point there.

Mr. Finlay

If I understand the position as its exists, there are certain necessary particulars which, as a matter of statutory obligation, must be given by the plaintiff to the defendant in his pleadings under the Act. That situation is not recreated in this Bill. I do not think that was an unnecessary burden on the plaintiff. The particulars were matters peculiarly within the knowledge of the plaintiff and peculiarly not within the knowledge of the defendant. I should like the Minister to consider whether he would not make regulations in this Bill providing that where a person makes a claim there is a certain minimum of information that he must give to the person whom he is suing.

Mr. Everett

I wish to express my gratitude and appreciation to Deputies for the manner in which they have received the Bill and for the very valuable suggestions made by the legal representatives from all sides. As I intimated in my opening statement, we shall consider very carefully all the suggestions made with a view to providing a measure which will benefit the greatest number of people. Deputy Major de Valera raised a point about a three year limit. I should like to say in that regard that another Bill which will be introduced in the near future will also include a similar period for all personal injuries and we should like to retain that period in order to have uniformity. There will be another Personal Injuries Bill introduced shortly.

In regard to points raised by Deputy MacBride, I should like to say that a Statute of Limitations Bill will be considered very shortly. Deputy Finlay made a very important suggestion about children who are not legally adopted and I can assure him that my hope is to try and do justice to all sections of the community. I shall endeavour to see that a measure will be provided which will not leave any legal loopholes later on in the courts. I wish again particularly to thank the members of the legal profession in the House and I promise that the Department will give favourable consideration to all of the points raised.

Question put and agreed to.

Committee Stage ordered for Wednesday, 23rd November, 1955.