Dáil Éireann debate -
Wednesday, 16 Jul 1958

Vol. 170 No. 5

Private Members' Business. - Law Reform (Personal Injuries) Bill, 1957—Second Stage (Resumed).

Question again proposed: "That the Bill be now read a Second Time."

Mr. Kyne

I am slightly dubious in speaking on this measure in view of the number of distinguished members of the legal profession adorning the House. Nevertheless, because the Labour Party has put forward this measure, it is incumbent on me to speak in view of the change which we seek. Normally I would have dealt with the matter at length but because I understand the Government is prepared to agree to a certain action in connection with this Bill I shall confine my remarks to a concise expression of our views on the doctrine of common employment.

As a layman I may be forgiven if the language I use here is not as competent as that which would be used in a law court. The doctrine of common employment from the layman's point of view would be interpreted to mean roughly this: The master is not liable for injury resulting from the negligence of one of his employees where the injurer and the injured—the one who causes the damage and the one who suffers the damage, respectively—are both servants of his in a common employment and the injury is effected in the course of that employment. Broadly, that is the doctrine of common employment. I should like to make the point that that is not anything but a judge-made law. It has not been passed by any Parliament or has not got the endorsement of any recognised authority speaking on behalf of a people in any country of which I know.

It started in Britain back in 1837 where a decision was taken by a judge at that time. Under the circumstances that then obtained, he gave a certain decision. That was confirmed in 1858 by the House of Lords when Lord Cranworth, in the case of Barton's Hill Coal Company versus Reid, in 1858, stated in his judgment that when several workmen engage to serve a master in common work they know, or ought to know, the risks to which they are exposing themselves including the risks of carelessness against which their employer cannot secure them and they must be supposed to contract with reference to such risks.

Whatever the merits of that decision and whatever the merits of the previous judge's decision in relation to employment at that day, away back in 1837, it can now be said that, with the complete change of industrialisation and where workers are no longer engaged as individuals but are engaged in cooperation of joint work on dangerous machines, common employment as defined away back in 1837 has completely and utterly changed. It can be said that the risks at the present moment are not comparable with those away back over 100 years ago. That has been recognised in Great Britain. In 1948, that judge-made law was abolished in a Bill brought before the British House of Commons.

While not endeavouring to follow any British policy, Labour Party Deputies interested in the care and advancement of workers of this country felt it their duty to introduce this Bill so as to give the Government an opportunity of accepting the principle behind it. I am very pleased to say that the Minister, after consultation with his Cabinet, has seen fit to indicate that they are prepared to co-operate in this object.

I speak as a layman and for the benefit of ordinary laymen. It must be understood that there are certain conditions and regulations such as that it is no defence to plead common employment where any breach of statutory regulations has occurred in the cause of an accident. Nevertheless, there are current cases in this country. In particular, I would mention the building trade. In scaffolding and in various things connected with the building trade, workers have received injury. Because building trade regulations do not govern that type of employment, workers have suffered severe injury which normally would permit them to recover adequate compensation from their employers. However, they have been deprived, because of this judge-made law of common employment, of the rights of securing compensation for their injury due to the fact that it was pleaded that the injury was caused by the careless action of a fellow-workman engaged on the same job and by the same employer.

All that the employer has to prove is that the employee who caused the injury by his carelessness was, so far as the employer could reasonably know, a competent workman. Nevertheless, the fact is that a severe injury often resulting in the loss of a limb, went without any compensation because unscrupulous employers, I might say, availed of this common employment doctrine not to compensate people for injuries received. That might have been all right away back in 1837, or in the years following, but industrialisation has so progressed that it is commonly accepted now that workers have got to be engaged in the handling of dangerous machines in their normal employment. Because of the change in times—with limited companies being formed—it is quite possible that, in law, you could be considered a fellow-employee of a company that was as remote as one part of Ireland from the other.

In fact, in Ireland, within a short time, it has been held that a linesman repairing an E.S.B. defect in County Dublin was in common employment with the driver of an E.S.B. van going out to give assistance of some kind. That is a typical case. In 1947, in the case of Millar versus Sligo Corporation, the conductor of one of two trams following each other up a hill on the same rail line was injured by the negligence of the driver of the other in allowing it to run down the hill and that was successfully pleaded as common employment. I suggest to the Minister that there is a case for following in this respect the example of Great Britain.

It might be said that this may be used only by unscrupulous employers, but that is not so. Sometimes companies are compelled to follow the advice of their legal advisers. In companies or in associations of people you do not get direct personal touch. In their individual rights, the people forming that company may be as human, as sympathetic, as Christian as any other individual in this country but, in their combined efforts, acting on legal advice and acting as they rightly should in the interests of the company in which they have taken upon themselves the position of directors, they must, of itself, follow the advice they have got from their legal adviser. If the legal adviser indicates to them that, under a section of a doctrine that has no legal standing beyond that of a judge-made thing endorsed by the British House of Lords, in this country at the present day a workman who has suffered an injury can be deprived of his income and of compensation because of that law, they must follow his advice.

I feel that in moving this Bill, as a member of the Labour Party and on behalf of that group, I am fulfilling the function for which I am sent here, that is, to remove the injustice inflicted upon those who are employed, to prevent unscrupulous employers exploiting the loophole in the present legislation and to give to Irish workers the right which has been conferred on their fellow workers across the Channel. I welcome the fact that the Government has seen the justice of our claim and is prepared to co-operate with the movers of this Bill, in seeing that it comes back to this House, either in its present form or in an amended form, but mainly with the result that what we seek to do will be carried out.

Minister for Justice (Mr. Traynor)

The Government have authorised me to say that they agree in principle to this Bill, subject to certain amendments of the text as drafted. I shall deal with these amendments shortly.

First of all, the Bill as at present drafted does not contain any provision preventing an employer from contracting out of its provisions. This is a serious defect in the Bill. When the Bill goes before the Special Committee I propose to put down an amendment to say that any provision in a contract of employment shall be void in so far as it would have the effect of excluding or limiting any liability of the employer in respect of injuries caused to an employee by a fellow employee. Secondly, it may be necessary to make it clear in the Bill that the expression "employer" includes a State authority. We want to ensure that a State authority will be bound in the same way as every other employer, by the proposed legislation.

Thirdly, we are anxious to ensure that nothing in the Bill shall affect any legal proceedings instituted before the Bill is passed. I am advised that it is usual to have a provision on these lines in legislation which alters legal rights. Fourthly, I may have an amendment to deal with the question of payment by an employer of a benefit such as a disability pension, as well as payment by him of damages for the injury sustained. This is a rather technical matter, which is being considered in consultation with the Attorney-General. Finally, there is the need to amend the Long Title of the Bill. The Bill is entitled: "An Act to Abolish the Doctrine of Common Employment." What is in question is a particular defence. Accordingly, I propose to put down a further amendment to substitute the word "defence" for the word "doctrine" in the Long Title.

With these reservations, I shall be glad if the Bill is given a Second Reading and referred to a Special Committee. I presume that the Deputy will deal with the motion in respect of the Special Committee, in the course of his concluding remarks.

Mr. Larkin

In supporting the motion moved by Deputy Kyne, I wish to make a few brief remarks concerned with the purpose for which the Bill is presented to the House. The basic purpose of the Bill is to endeavour to extend to workmen more adequate protection under the law than they have at the present time. As Deputy Kyne mentioned, since the early 1800s there have been very many cases in which workers who received injuries, arising in the course of their employment—injuries which incapacitated them for life, or left them at the loss of a limb, or resulted in partial incapacity—were deprived of the possibility, because of the existence of this doctrine—or defence, as the Minister mentions—of recovering reasonable damages for the loss and suffering caused to them.

The main justification which has existed for a long time for this doctrine or defence of common employment is that, over 100 years ago, where a man accepted employment he was supposed to accept all the risks attaching to it, including the possible carelessness or negligence of his workmates. In these modern times, when industry has developed to a very high degree, there is no single employee who could possibly accept the position that when he applies for a job he is aware of such conditions and he is quite clear that he has to accept such conditions.

We are dealing with a state of society when people do not just accept jobs; jobs are not just offered to them. If they are fortunate, they obtain employment; and the basis of their obtaining employment is that they require to feed themselves and their families. Therefore, I think the House will understand that this Bill is put forward on the realisation that the workers cannot pick and choose their employment or the persons with whom they will work.

As a consequence, they may be open on many occasions in the course of their working life, to suffer the result of a minute's carelessness or a minute's negligence, or the lack of attention by a workmate for a little while to the task right in front of him. In these circumstances, if such lack of attention, for a short time, with no intention of doing any damage or injuring a fellow worker results in an accident, the employer can go into court, under the law as it exists, and claim the protection of this doctrine. So, you would have the position that, at common law, the worker who has met with an injury, possibly involving loss of limb, which prevents him from working any longer in his chosen occupation, would be entitled to succeed on the grounds of his employer's failure to provide a proper system of working or to employ competent workmen or to have proper plant or to comply with statutory regulations applicable to the plant. A workman who lost a limb could proceed for and could get damages which would be related not merely to his weekly loss of earnings but also to the loss that it was estimated he would suffer thenceforward and damages related to the distress, the expense and the suffering caused to him by the accident.

In the same industry, even in the same job, another workman who possibly received more serious injuries and who had a family to support might well be denied adequate damages because of a plea of the doctrine of common employment and because of a mental attitude in this matter which has not moved beyond the 19th Century. The Minister's statement that, not only does he accept the principles of the Bill, but intends to put down amendments to the Bill which in his opinion are calculated to make it more effective and more useful than as it appears on to-day's Order Paper, must be appreciated.

Mr. Lindsay

As a result of two matters emerging from the debate on Second Reading of this Bill, one, that it is being referred to a Special Committee owing to its technical nature, and the other the acceptance of the Bill and the proposed formulation of amendments by the Government through the Minister for Justice, it is not incumbent upon anybody in the House at this stage to declare himself positively one way or the other. Permit me to say, however, at this stage that I am glad that Deputy Larkin pointed out that there were ways and means of surmounting the pleaded obstacle of the doctrine of common employment, namely, by proving the failure of the employer to provide a safe system of work or to provide a safe premises within which that system was being operated.

Lest it should go out from this House from to-day's debate that the legislative code of this country contains no provisions whatever for the protection of a workman who is injured in the course of his employment by reason of the fact that the defence of common employment was open to his employer, I should like to put it on record that, when people say that, they are entirely neglecting reference to our rather generous workmen's compensation code which is in operation. There are times, even when the doctrine of common employment could be successfully pleaded, when the workmen's compensation code will come in adequately to compensate the injured person, that is, where the injuries are slight and of such a nature that the amounts prescribed in the workmen's compensation code provide adequate compensation for them.

There are occasions, however, where the injuries are so great and where the defence of common employment is successful, that is, where a plea of unsafe system of work or a plea of unsafe premises for such work fails, that an injustice is done but the number of times in which the doctrine of common employment has been successfully pleaded, as opposed to the number of times when such a plea has failed, would provide a remarkable revelation in that it would show quite clearly that injustice through the operation of this principle has not been as rampant as one might be led to believe.

On the general principles, and speaking as a person who has had difficulty both on the plaintiff's side and on the defendant's side with regard to this doctrine of common employment, I welcome the Bill and I reserve whatever further remarks I should like to make until such time as the Bill, as revised and amended by the Special Committee, comes before the House.

Mr. Norton

I should like to correct an impression which I am afraid Deputy Lindsay's remarks give. So far as the sponsors of this Bill are concerned, they are perfectly aware that a person may fail in an action under the Employers' Liability Act at common law but may succeed in an action under the Workmen's Compensation Act. That is perfectly clear and those who have sponsored this Bill are dealing with such cases every day of the week in the course of their ordinary trade union work. I do not think that anything they said is capable of the interpretation that Deputy Lindsay feared because the two Deputies concerned are clearly aware of the rights of workmen under the Workmen's Compensation Act if they fail to secure compensation against an employer because of the negligence of his workman where the injured person is in the employment of the same employer.

As Deputy Kyne rightly said, this law is not legislatively enacted law but case law, built up originally by a decision of the British courts, and has applied throughout the last century and this century in such a way as to prevent a workman who is injured by the negligence of his colleague from successfully sustaining an action against his employer. While that law was never enacted by this Legislature or, indeed, by the British House of Commons, it has continued for more than 100 years to overshadow the rights of an injured workman when he went to the courts seeking compensation against his employer.

Although this case law originated in Britain, the British have taken steps to eradicate it from their legal code and it no longer operates in Britain. I am glad that this Bill, and the Minister's acceptance of the principle of the Bill, is bringing us within measurable distance of the time when this archaic case law will be eradicated from the legal code of this country.

As Deputy Kyne said, modern industrial life is such that it is inevitable that persons employ large numbers of people in one premises. Each and every one of those workmen should have a right of action to recover damages if injured by the negligence of another person employed by the same employer. Nobody wants to hold the employer personally responsible for the negligence of one of his workmen but neither should an injured workman be allowed to remain defenceless in a case where he has lost limbs and lost his capacity to earn. The employer has a very easy and ready way out by insuring against that particular risk. It is a natural overhead so far as he is concerned in the same way as insurance on his house, his buildings, his motor car or any other of his possessions.

I am glad the Minister is accepting the principle of this Bill. I think State Departments from time to time have used the doctrine of common employment as a defence against actions by their employees where the employee was injured as a result of negligence of a fellow workman. Now that the principle of the abolition of this defence of common employment is accepted by the Government and by the House, I hope that even pending the passage of this Bill the Minister will ensure that State Departments and State-sponsored bodies will not in the interregnum use the defence of common employment as a reason to resist the claims of injured workmen.

Let us take an example. The Post Office Department transport substantial numbers of workmen in lorries to places of employment. If the driver of the lorry meets with an accident and is held to be negligent, in the course of an action in court the Post Office Department can plead the doctrine of common employment against the claim by any person in the lorry at the time of the accident. The E.S.B. do the same in the matter of transporting large numbers of workmen to jobs in lorries and if the driver met with an accident in circumstances in which the court held he was negligent, again the E.S.B. could put up the defence of common employment against the claim of compensation.

I hope, therefore, now that the Minister has accepted the principle of the Bill and will introduce amendments to make it even more workable, that steps will be taken in the meantime to ensure if any such circumstances arise that neither Government Departments nor State-sponsored bodies will offer 1837 British case law as a defence against any workman injured in the course of his employment.

Mr. Dillon

In regard to the judgment in 1837 of this old gentleman by the name of Lord Cranworth on this doctrine of common employment, to which Deputy Norton has referred, there is general agreement that it ought to go. The strange thing is that there seems to be general agreement on that for the last 50 years and nothing happened until now. At first glance that may suggest that there is some lachesse on the part of the Legislature but I want to suggest that that first impression is not well founded. These venerable doctrines of the common law are not lightly to be swept aside by legislation for the reason that we have abundant evidence that the common law which we inherited in this country enshrines a good deal of common sense and that if you proceed to roll out all the bumps and humps upon it with a steam-roller, sometimes you discover that in the process of rolling out the bumps you have done a great deal more damage than good.

That error can arise from approaching so venerable a code as the common law with an inexperienced eye and an unpractised hand. We should have no apprehension in dealing, as we now propose to deal, with the doctrines of common employment, but what is a recurring source of amazement to me is in relation to the fact that we have an Incorporated Law Society representing all the solicitors; we have the Bar which is an organised though not an incorporated body of professional men and we have the judiciary. I believe that in most civilised countries where these professions operate, they take a constructive interest in the law and where the development of new circumstances in the social background of the people or in their conditions of employment or in their general circumstances suggests that certain established tenets of common law no longer correspond with the conditions of today, these professions consider it no excessive burden to make a suggestion that the established doctrines of the common law now require legislative amendment on the ground that to attempt to alter them through the normal processes of the common law may lay upon the litigant who undertakes to do that an altogether unreasonable burden of expenses.

There is no reason why a trade union should be asked to lay down £20,000 for the purpose of litigation in the Supreme Court in the hope of altering the common law, if it can be proved to the satisfaction of a reasonable Legislature by the judiciary or the profession that something requires amendment. If the profession and the judiciary would undertake this assignment it would have this added advantage that there could be offered to the Legislature a draft of the legislation to achieve the purpose which it was sought to achieve. In the knowledge of all who have any experience of Government, that greatly expedites the process of reform. We all know that, in the rush and bustle of essential legislation, desirable reforms of the character of those in this Bill often can be put to one side on the ground that the parliamentary draftsman has not time to attend to them. However, if there is tendered to the appropriate Minister a draft which is substantially suitable for enactment by this House the prospect of getting reform effected is greatly expedited.

There are a great many reforms of this character which urgently await attention. I recall with satisfaction that I had some hand in the abolition of a statutory instrument, the Public Authorities Protection Act. I remember that our predecessors in office could not find the time to deal with it. It was not easy for us to find the time when the occasion arose but we found it. That legal anomaly survived far too long and this one has survived much longer. There are a great number of other matters which also need rectification and I do not know whether colleagues in the profession to which I belong myself, or the Law Society or the judiciary will go into hysteries if I say that it is time they stirred their stumps. They certainly have some duty to maintain the law in this country in as effective a state as it is possible to do.

They have no reason to fear that any proposals coming from them for the improvement of the law will be treated by this Legislature with anything but the respect to which such recommendations will be entitled. I think they could do good work if they would charge themselves with a responsibility of this kind. I do not believe that any undertaking of a character which would bring about such improvements would not be generally welcomed by the people of this country or not most favourably considered by this Legislature at as early a date as possible. I think this is a matter of considerable importance. I believe there is a lot of this kind of work to be done and that they ought to help us to get it done.

There is one other point I want to mention and it was referred to en passant by Deputy Norton. He said that this was a new liability which will attach to an employer, as the defence of common employment is no longer available. That is true. I think the Minister would be well advised to ask his colleague, the Minister for Industry and Commerce, to furnish to him, for communication to the House, his estimate of what the probable cost of that will be to employers who now have to insure against that risk. I do not apprehend that the cost will be very great but I like to feel that, when we pass legislation of this kind, it cannot be said of us that we plunged ahead with this Bill without asking ourselves what the cost would be to the employers of the country. I think that when we find it out it will confirm us in our estimate that it will not be very great but I think we ought to know.

The last thing I want to mention is this. It is true that Standing Order 69 provides that a Private Members' Bill must go to a Special Committee and it also provides that a Government Bill may go to a Special Committee or to a Committee of the House. I do not know why certain people think that this is a very technical matter. It is not half as technical as the Finance Bill. We actually taught the Minister for Finance what the Finance Bill was all about and it was manifest that he did not know. If that Finance Bill had gone through a Special Committee it is very doubtful if anybody would have known what it was all about.

Mr. Haughey

Deputy Dillon said, when that Finance Bill was finished with, that he still did not know what it was all about.

Mr. Dillon

If I did not know what it meant, would the Deputy tell me what the real state of mind was of the 75 members of the Fianna Fáil Party?

An Leas-Cheann Comhairle

We cannot have any further discussion of the Finance Bill. That is not the matter before the House.

Mr. Dillon

The information that we got about that Finance Bill reached us through a Committee of the House. I believe that it would never have reached us through a Special Committee. I see no difficulty at all in the matter now before us. We know that it is desirable to remove the anomaly to which this Bill refers and I think that it could be most expeditiously discussed and settled by a Committee of the whole House. I suggest the Minister for Justice should adopt this Bill and put it through the ordinary course of going through a Committee of this House. Of course, that is not a matter of very great substance but I suggest that that would be the proper course to adopt.

In concluding I would say that if the Minister adopts this Bill and, if it is going through during the autumn session, it should be dealt with as an ordinary measure and that there should be no necessity for it to go through a Special Committee.

Mr. Rooney

I understand that the Minister has indicated that he would be in favour of setting up a Special Committee to inquire into the implications of this proposal and that he has indicated that he accepts the principle of this Bill. When we are considering this matter I think we should considering every implication which may be involved in connection with the technical changes being made. We should try to see how it affects us in a general way in so far as the economic and industrial position of the country is concerned.

When Deputy Kyne was introducing this Bill he made a very good case in favour of making this change and he presented the picture against the background in Great Britain. When we are considering that matter let us remember that in Great Britain the workmen's compensation code is quite different from that in this country. The code on both sides of the water runs, in a general way, along the same lines but in Great Britain workmen's compensation is nationalised and in Great Britain an injured man is entitled to compensation from his employer, the employer in this case being the State. But he has not the same advantage that employees have in this country where they are entitled to receive a lump sum and redemption of compensation.

In Britain, when he reaches a stage of recovery from the injuries sustained in the course of employment and if he is not fit to take up the same employment again, as, for instance, in the case of a machinist who might lose an arm and who would require two arms to be proficient at the work at which he met with the accident, he is offered employment where one arm would enable him to earn a living. That is the manner in which the injured person is treated under the British workmen's compensation code.

Apart from that, the injured man is entitled to take an action at common law against his employer just as he may do in this country. In addition to his right in Britain to take such action, he may now claim common employment in relation to the common law action and proceed against the employer. The State does not come into the action taken by the injured man against his employer where the question of common employment in common law is brought in. Apart from the technical change which can be effected we must examine what would be the implications of this change.

The Workmen's Compensation Act of 1955 had the effect here of increasing the cost of insurance cover for employers by 35 per cent. Employers who were paying £65 per annum to insure a staff were compelled to pay £100 when the 1955 Act came into force. Naturally that rise in the cost of insurance against that liability had to be passed on to the normal cost of various commodities used by the persons actually employed and insured by these employers. In Britain, shortly after workmen's compensation was nationalised, employers were faced with the necessity to take out only an insurance policy covering them against common law liability and as a result of that the premiums began to rise in consequence of many common law actions which frequently were not successful. If they were not successful the insured employee could then take advantage of the ordinary weekly compensation payable.

When the common employment attitude was changed in relation to the legislation, it was necessary for the employers to pay extra insurance premiums which would cover the common law risk including the common employment section. In Britain the cost of insurance for these liabilities is still rising and in addition there is the ordinary scale of compensation paid by the State.

In this Special Committee we must examine whether, in fact, the change here will bring a reasonable advantage to the injured employee or will it involve a considerable amount of litigation expenses and costs without any great return to those who take the legal action. They are in a position to take the case to the High Court and a High Court action will cost anything up to £1,000, win or lose, and having lost the case in the High Court they have the right in the normal way to get a lump sum payment under the ordinary workmen's compensation code. Thus they can make two attempts at getting compensation. Having failed in one they can get it in the other.

The 1955 Workmen's Compensation Act improved the position here considerably for persons injured in the course of their employment. Even if this change is made, the position will still be that such people will be entitled to the full advantages of the 1955 Act in addition to the rights they have under common law, and it is now proposed that the common employment section should become effective. Should that be the case I feel the Special Committee should examine very carefully its impact on the general economy so far as industries are concerned and the advantages it may bring to injured employees. It may not bring great advantages to them but it will give them an opportunity to carry on a considerable amount of litigation with the chance of winning and the probability of losing their cases because common law offers a very wide measure of opportunity to a person who gets an advantage from it instead of taking the advantages available under the Workmen's Compensation Acts.

I am putting up these points at this stage because these are the implications we should consider when we set up the committee to decide whether or not we should have this change in relation to common law. I feel there is a principle involved; it will not bring much advantage to the injured person because he has rights already under various sections of the workmen's compensation code but it will involve industrial employers in a great amount of litigation without bringing advantage to those who would take advantage of the common law proposal.

A concrete example of where common employment arises is the case of two men carrying a plank. As a result of the negligence of one of them the other is very seriously injured. We know at present under the workmen's compensation code such a man is entitled to a lump sum payment because of the disability he may suffer as a result. He can take his action under the Workmen's Compensation Act or under common law. Now it is suggested he should also be able to plead common employment if he cannot succeed at common law instead of under the workmen's compensation code. I think that is the real implication of this Bill and I hope every aspect of it will be considered by the Minister and the Special Committee before it is decided to make this technical change.

Mr. T.F. O'Higgins

The Irish Labour Party is to be congratulated on bringing this Bill to the House. It is one of the desirable measures of law reform urgently needed here but it deals only with a very small problem. The doctrine of common employment has grown up since the beginning of the industrial revolution in Britain in the last century. It has largely been vitiated by the desire of judges to prevent its application because its injustice is so clear. It fact, under statutory changes, its application is limited enough. An employer is liable to damages for any personal negligence of himself or for any defective system of work or any defective machinery or premises which he provides. Accordingly, the application of the doctrine of common employment has justifiably been restricted. To the extent that it can still operate, it will continue to cause an injustice and it should entirely be abolished. I agree with the proposals in the Bill.

It is rather a pity that the Bill did not go a bit farther. While it is not strictly relevant, I hope the Chair will bear with me if I avail of this opportunity to express the hope that the Minister has not forgotten the more important piece of law reform that requires to be done, namely, the abolition in this country of the defence of contributory negligence. I, and some colleagues, sought to achieve this some years ago. It has already been achieved in England and in one part of this country. The continued operation of this defence makes Irish law and Irish practice completely out of step with those of the rest of Western Europe.

I cannot see, if it is avoidable, why it is necessary to send this very simple measure to any Select or Special Committee. We all know what is sought to be achieved. It is sought to prevent an employer henceforth from sheltering behind the negligence of a fellow-employee when somebody has been hurt as a result of negligence. That is quite a simple proposal. It does not need a selection of experts to realise what is involved.

Deputy Rooney seemed to suggest that the abolition of this defence would have an impact on employers' insurance premiums. I doubt that very much. In any event, each injured workman has his workmen's compensation remedy and, in any event, an employer does insure against that. In addition, in most cases, where an employee is injured in the course of his employment, he has available to him a common law action. He may decide not to take it because possibly his workmen's compensation remedy is more beneficial and less hazardous to him. I cannot imagine that, in the limited number of cases in which this doctrine now effectively operates, its abolition would have any significant effect in the future on insurance premiums. If it did, I think it would be unjustifiable.

Since the Minister accepts the principle of the Bill, since we all seem to be of one mind about it here, if this change is to take place let us do it now. Why set up a Select Committee to deal with a thing in respect of which we are all agreed? There is nothing technical or involved in it. The Minister has already available to him, I am certain, the views of bodies and persons likely to be affected. This is a short Bill and I think we should pass it.

Mr. McGilligan

I understand that, under the Rules of the House, this must go to a Select Committee.

An Leas-Cheann Comhairle

Not necessarily. If the House desires, it may be referred to a Committee of the whole House.

Mr. McGilligan

Let us adopt whichever is the speedier procedure. This has been hanging fire for many a year. As far as being an effective doctrine is concerned, it has disappeared from the courts. Judges in England and here have set themselves sternly against allowing it as a defence. It is of no great importance whether we leave the doctrine of common employment or get rid of it. I understand it has been argued that people have been deprived of what would otherwise have been their just rights because of the application of this defence. In my time, I know of three occasions on which the doctrine has been pleaded successfully in that connection. It is often put in as a bit of padding in any such sort of pleading but the occasions on which it has been pleaded successfully are few.

My colleague has said that the Minister must have got the opinion of people affected by this. I do not know about outside bodies. I do not believe any insurance company could seriously make the case that they would have to increase premiums to people because of the extra expense likely to be incurred if this doctrine disappeared. There would be no extra expense. The cases in which this doctrine has been pleaded successfully are very few. I would agree that, on occasions when common employment has been held to be a good defence, it has, in my mind, prevented people from getting what they were entitled to. So far as it is effective at all, it has worked against the person injured.

With regard to the people who are concerned, I suppose this suggestion has been current in Government Departments under the aegis of at least three Governments. So far as I am aware, in my own experience, in the end, when all the views of Government Departments were collected, apparently there was only one which had any difficulty about the disappearance of this defence—the Department of Finance. Always timid and anxious about the future, they put themselves as the people who have to stand the racket in respect, for instance, of mechanically-propelled vehicles in the charge of any Department of State when there is an accident. That is right. They do stand the racket.

The question was, to my knowledge, put to the Department that was objecting as to whether they could produce from their records any statistics over a period of five or ten years of cases in which the State had been saved any money because common employment was opened as a defence and had been pleaded and the case won on that plea. There was no answer to that query. I understand that the Department cannot produce any statistical information which would show them as reasonable objectors to the removal of this doctrine. It should go with all possible speed. The 1880 Act is virtually obsolete. The circumstances hardly ever occur and, when they do occur again, you will find that the opinion of the courts and of practitioners is all the time leaning against any importance being attached to the Employers' Liability Act. Both should go and as quickly as possible.

Mr. Traynor

This is not going to a Select Committee.

Mr. McGilligan

I understood that this was being ruled on——

Mr. Traynor

A Special Committee of the House but not a Select Committee.

Mr. McGilligan

Select Committee or Special Committee, will you have a Committee of the House?

Mr. Traynor

I do not mind.

Mr. McGilligan

Would it report by the time we meet in October and before the next legal term? If this could be made law before the next legal term starts in October, that is perfect.

Mr. Traynor

It cannot be made law until we resume. We shall not be able to take the Bill until about November. The first meeting of the Committee will not be held until November. Deputy Kyne will move a motion. Perhaps we should let Deputy Kyne deal with the matter.

An Leas-Cheann Comhairle

Deputy Kyne, to conclude.

Mr. Kyne

I said, in moving this Bill, that I was hesitant because of the distinguished legal people who are members of the House. I am much more hesitant now, in concluding. This is an effort by some of my colleagues and myself, to remove what we feel is an impediment to a rightful claim. That impediment has been used successfully on a number of occasions —even though, as Deputy McGilligan says, it is a limited number. Even if there were only one case, we feel it should not be there. We are against this principle, which started away back over 100 years ago. At that time, there may have been some justification for it, but with the change of events, whatever justification there was has been obliterated and now we have the reverse, that it has become an injustice. While most employers do not avail themselves of this provision in the law, it is always there and there is the risk that a justifiable action could be defeated by pleading it. This is a simple thing which we want to change.

Deputy Lindsay was answered by Deputy Norton; but Deputy T.F. O'Higgins was, to my mind, like a breath of fresh air sweeping through this debate. He stated simply—and I accept it—that this is a provision which all the legal people have found undesirable and that they have always felt it should be abolished. He went on to say the Minister should go further, perhaps. However, as the Deputy moving the Bill, I am seeking simply to remove the injustice which we see there.

In conclusion, I would point out that with the agreement of the Minister, I propose to accept his suggestion that we refer this Bill to a Special Committee of the House. I understand that, under Standing Orders, that is the way these Private Bills are dealt with, if the Government indicate that they do not object to the principle of a Bill. If they are willing to accept that principle, either in the form put forward or in an amended form, they suggest that the mover of the Bill refer it to a Special Committee of the House on which all Parties would be represented and which would report back to this House. Therefore, in actual fact, this House will still have the final say.

Apparently, Deputy Dillon expected me to say which way I would like. The only thing I wish is to get the injustice removed. Whichever is the most effective way of doing that, I am quite satisfied with it. The Minister has indicated, on behalf of the Government, its willingness to remove the injustice. The technicalities of doing that do not concern me, but on the advice of the officials of this House, the normal way under Standing Orders is that which I am proposing to adopt, when it comes to the point, that is, refer the Bill to a Special Committee of the House.

An Leas-Cheann Comhairle

May I point out to Deputy Kyne that if the House so desires, it may send the Bill to a Committee of the whole Dáil. Which does the Deputy propose?

Mr. McGilligan

What is the difference?

An Leas-Cheann Comhairle

One is a Special Committee.

Mr. McGilligan

If it were sent to a Committee of the whole Dáil, could we discuss it to-morrow?

Mr. Traynor

A Special Committee is one which is representative of the various interests in the House. Each Party will nominate members to attend and this will probably mean a meeting of 15 to 20 members.

An Leas-Cheann Comhairle

Seventeen members.

Mr. Traynor

I know that the quorum suggested in the motion which Deputy Kyne is to move is six. That is the type of Committee suggested. A Committee of the whole House would be a Committee taking the Bill in the House.

Mr. McGilligan

We could send it to a Committee of the whole House to-morrow.

Mr. Traynor

Does the Deputy mean that we should deal with the Bill to-morrow? This sort of conduct astonishes me. The Deputy was in a Government on at least two former occasions recently, and I am entitled to ask him why he did not speed the matter up then.

Mr. McGilligan

I did my best and the Department of Finance stopped me.

Mr. Traynor

The Deputy did not do it. This matter was brought to my attention for the first time when Deputy Kyne introduced this Bill. I thought the suggestion that there should be a Private Members' Bill to deal with the matter was not a bad one and as soon as I could I put the Bill to the Government. I induced the Government—not easily, I may say—to accept the principle of the Bill, provided that certain amendments were inserted. Deputy Kyne has agreed to these amendments. I will put down amendments which will improve the Bill in many respects. That is the situation and that is why I am astonished that Deputy McGilligan now wants me to have the Bill passed before the House rises. How, in the name of goodness, does the Deputy think I can produce these amendments, which are of a highly technical character, this evening or to-morrow? It could not be done.

Mr. McGilligan

This Bill was brought in on the 5th December. This is now the 16th July and it is going off to November.

Mr. Kyne

It will still be law, I hope, before the end of the year—and it is 100 years there.

Question put and agreed to.