Dáil Éireann debate -
Wednesday, 17 Feb 1960

Vol. 179 No. 3

Finance (Excise Duties) (Vehicles) (Amendment) Bill, 1959—Committee Stage.

Section 1 agreed to.

SECTION 2.

Question proposed: "That Section 2 stand part of the Bill."

Mr. Cosgrave

As I understand it, the procedure which it is proposed to adopt here will involve the inclusion, for the purpose of calculating the unladen weight, of a receptacle or container. Representations have been made, I think, to Deputies on all sides, on behalf of furniture removers and people engaged in business of that sort who have to use special equipment— containers or slide-in equipment on vans. They will be liable to have this equipment weighed, although it is a normal and necessary requirement that they should have these attachments and in fact it would be very difficult, if not impossible, to carry furniture or other household commodities which the furniture remover in the course of his business carries from time to time, unless this equipment is provided.

This section, as I understand it, involves the owner of a lorry or truck in weighing the attachment which is part of the necessary equipment of that lorry or truck. So far as I can gather, in Britain these attachments are not included in the unladen weight. When the Financial Resolution was before the House in December the Minister stated that he would consider the question of the furniture removers who had problems peculiar to their business and I would be glad to know what is their position now under the Bill.

As I understand it, the containers, lift-vans and so forth, all these attachments must be weighed. On that occasion I referred to horse-boxes. Generally, horse-boxes are part of the basic structure of the lorries but in certain cases horse-box attachments can be fitted and detached as the occasion requires. If a particular lorry is so fitted out that it can be used as a horse-box on one occasion and then with the box part detached, used as an ordinary lorry, is the owner obliged to weigh that attachment as part of the unladen weight? Undoubtedly, it would be quite impossible to use it as a horse-box unless the particular attachment was used. The same is true of furniture vans. I should be glad to hear from the Minister what the position is under the present proposals.

Minister for Local Government (Mr. Blaney)

In reply to the Deputy's general queries on behalf of those for whom a case for special concessions was made — notably, the furniture removers—their vehicles are not excluded from the provisions of this measure. In other words, they will pay tax on containers such as those about which the Deputy has been talking.

In regard to that aspect of the matter might I refer to what I said on the Second Reading of the Bill about going some little way to meet some of the cases that have been made and about which we already had certain approaches and representations? While I still say that attachments such as those about which the Deputy has talked as necessary to carry a load are included within the terms of the tax laid down in this Bill, I already indicated on the Second Reading of the Bill that I was looking into this question of containers and similar additions used for only part of the year, as distinct from occasional use during the entire course of the year. What I have in mind is the extension to regulations made in 1958 enabling refunds of duty to be given in certain cases. Subject to specified conditions, a refund may be made where the licence is surrendered and the vehicle is exported, stolen or broken up or the owner, because of illness, can no longer use the vehicle.

These regulations would now be extended to a case where the owner of a vehicle satisfies a licencing authority that his vehicle will not be used with the container etc., for the remainder of the year. The refund would relate to the amount of tax attributable to the container for the remainder of the licensing period. As the owner would have paid the higher rate only from the period when he started to use the container the net effect would be that duty would be payable in respect of the container only for part of the year. While details of the regulations have not been finally settled I should say they will probably be subject to the same limitations which affect the existing provisions for refunds; in other words, they will generally be tied in with them. That is not quite an answer to the Deputy's case but I have made the distinction and that is as far as it is possible to go in an effort to meet any unusual types of cases under this head.

Where containers of any kind are used only for a part of the tax year, a refund under the various conditions can and will be made available where it is found to the satisfaction of the licensing authority that such is the case. However, in so far as the occasional use of any container fixed for the purpose of carrying goods on any vehicle is concerned, it is not possible to bring in any regulations which would, while exempting such people, not create a situation of negativing the whole idea in the Bill before the House.

Mr. Cosgrave

What the Minister is providing for is, say, seasonable traffic like beet, or turf.

Mr. Blaney

It could possibly cover them or creameries.

Mr. Cosgrave

They are two commodities that come to mind, but furniture people are in the same position except that their business is not seasonal. I can understand the position in respect of beet or turf because it is generally for a fixed period of the year. It is easy enough to deal with that but apparently the furniture people will have to weigh the attachment as well as the lorry in order to come under the unladen weight.

Mr. Norton

I should like to ascertain from the Minister what the position is in respect of these cases of hardship which it is anticipated may arise. By now, I take it, all the lorries have been taxed for 1960 or virtually all of them. Can the Minister give us any general idea as to the number of applications dealt with by the Department of Industry and Commerce where it was necessary to apply the hardship rule in the parent Transport Act in order to overcome whatever difficulties arose as a result of clarification of the law on the unladen weight of vehicles?

Mr. Blaney

I have not much to add to what I said last week. I have no up-to-date information, but up to last week only 73 inquiries out of the entire number of almost 1,000 licensed hauliers have actually been made to the Department in relation to these changes.

Mr. Norton

Are these 73 whose cases were not solved by the additional 7 cwt.?

Mr. Blaney

It does not even mean that 73 persons had cases that needed to be solved. There were only 73 inquiries altogether and I am not quite clear as to the content of the inquiries.

Mr. Norton

On the assumption that these were all complaints there were 73 out of 1,000?

Mr. Blaney

Yes, that is up to last week.

Mr. Norton

Would it be possible for the Minister, before the Fifth Stage, to get the latest information from the Department?

Mr. Blaney

I suppose I could get it but whether it will be available is another matter.

Mr. Norton

I shall be satisfied if the Minister tries to get it. I want to see if the situation is being met.

Mr. Dillon

There is one aspect of this question I wish to bring to the attention of the House. I may be wrong but I do not think I am. A man buys a lorry with a carrying capacity of 5 tons and he pays the tax appropriate to that carrying capacity. It then transpires that the quality of the merchandise he has to carry is such that containers are required to hold the merchandise on the lorry and he puts on a container which weighs 10 cwt. He thereby reduces the carrying capacity of his lorry for merchandise from 5 tons to four and a half tons. Is that not so? But the net result of paragraph (iv), subsection (2) of Section 2 is that the lorry which is now carrying less than its capacity load of merchandise has to be taxed at a higher rate.

Mr. Norton

Except, of course, you get 7 cwt.

Mr. Dillon

He gets only 7 cwt.

Mr. Norton

He gets the other three under the hardship clause.

Mr. Dillon

Under the Road Transport Act he gets 7 cwt., that is to say, his licence to operate as a licensed haulier is extended by 7 cwt. but he does not get that for the purpose of tax. He still has to pay extra tax.

Mr. Norton

The increase in laden weight means you pay extra tax?

Mr. Dillon

No. If I have a 5-ton lorry, I get that weighed with all its normal attachments to it and I can now carry five tons of merchandise, but the merchandise is such that I must put a receptacle on to keep the merchandise on the lorry. It is now provided that if I put on that receptacle to keep my merchandise on the lorry, I am liable to be taxed at a higher rate because I carry a receptacle on my lorry. Therefore, as a result of reducing the carrying capacity of my lorry, by virtue of the quality of merchandise I have to carry, I am actually making myself liable for a higher rate of tax. I do not think that is fair.

Mr. Norton

Surely the receptacle is of some value?

Mr. Dillon

It is simply designed to keep the merchandise from falling off the truck. It seems to me that they would have paid enough for that by paying the tax for the lorry in full and by reducing the carrying capacity of the lorry.

Mr. Norton

The ordinary lorryman's problem is to get traffic for his lorry, not tax.

Mr. Dillon

If that is Deputy Norton's view, I can see his approach to this matter but I think a great many people in this country are being placed in the unfair position that they have to pay tax for putting a receptacle on the taxable part of the lorry, at the same time reducing the carrying capacity of the lorry. I do not think that that can be defended on any of the grounds put forward by the Minister.

Mr. Blaney

In answer to the suggestion about making special plans for furniture removers and other people who have trucks with containers on them, I should like to point out that furniture and other containers were probably taxable before this Finance Bill came into this House at all. That fact cannot be lessened by virtue of the practice that had grown up where such containers on these trucks were not taxed in recent years. If we were to exclude such containers as those on furniture vans or other vehicles there are many other types of containers that would have to be excluded also.

In reply to Deputy Dillon's suggestion about the effect of this particular section I think that, theoretically, his summing up would be a fair exemplification of what is contained in the section but it does not follow that what he has said is quite so. The addition of a container, say one of ten cwts. as the Deputy suggests, has the effect of reducing the carrying capacity of a lorry by half a ton. He suggests that if the carrying capacity is five tons it is reduced to four and a half tons.

A five ton truck, as we all know, usually carries from seven to ten tons. These containers are put on to enable the truck to carry more of the particular line of goods that the man is accustomed to carry and not to carry less. Basically these trucks and all such vehicles are taxed on their unladen weight and if the unladen weight is increased, logically the amount of tax must be increased. If the owner adds half a ton to the unladen weight then the tax goes up accordingly. But those who put containers on their trucks do not find themselves with additional tax and less carrying capacity. They put on the containers to carry more of the goods in which they trade and it is quite obvious that those who put on those containers know pretty well the load of goods they can carry and they put them on only because they are an economic proposition from their point of view.

Mr. Norton

Will the Minister say what is the approximate weight of the creels?

Mr. Blaney

I think we have some figures of a fairly general range of creels.

Mr. Dillon

I am not quite clear as to the meaning of paragraph (b) of subsection (4) of Section 2 which says:

Anything so placed is excepted from the foregoing paragraph if in relation to no journey are goods or burden of any other description both loaded into and unloaded from it without its being removed from the vehicle.

Does that exempt the kind of carrier which is in use for the transport of carcase meat or fowl? I mean the kind of thing that is brought into a factory, filled with a load of carcase meat and fowl and driven to its destination where the load is taken off.

Mr. Blaney

That is exempted. In reply to Deputy Norton's question, the small truck would be one of three to six cwts. with the creels added which is the common practice in the country.

Mr. Norton

What would be the unladen weight?

Mr. Blaney

I have not got that. We have the small truck, the medium truck and the large truck. I take it that these will be the two or three ton truck, the five to seven ton truck and the ten ton truck which would include creels for the carrying of turf, cattle or sheep. The small truck would be from three to six cwts. The next one would be the more common one of from five to seven tons which would carry creels weighing about an additional ten cwts. so that they could be used for the transport of turf or cattle.

Mr. Norton

The addition of seven cwts. would cover by far the big majority of them.

Mr. Blaney

I think so.

Mr. Dillon

How does this seven cwt. apply to the matter under consideration?

Mr. Blaney

That applies mainly to the licensed haulier.

Mr. Cosgrave

The seven cwt. will not cover the furniture container.

Mr. Norton

If Deputy Dillon goes down to Monaghan tomorrow and asks all the licensed hauliers to meet him in the square and says to them that he will get the unladen weight of their lorries increased by two tons but that it will mean extra taxation, I do not think there will be a single person who will not take these two tons even though they have to pay the extra tax. So far as they are concerned, their main problem is to get the traffic. It is not to pay the additional sum.

Mr. Dillon

Surely the Deputy is overlooking a very important aspect of this Bill and that is that it applies not only to the licensed hauliers but to everybody who operates a lorry in the country? There are two separate and distinct issues but this Bill applies to everybody who operates a lorry for the carriage of his own goods. Leave out the licensed haulier altogether.

Mr. Norton

The licensed haulier is the main concern in this matter as I see it.

Mr. Dillon

I sympathise with the Deputy's view but there are people in the country who are not licensed hauliers but who operate lorries for the prosecution of their legitimate business. They are being covered here. As the Minister told us, between them and the licensed hauliers, they are to pay £100,000 per annum more tax. That is what the Minister expects to clear.

Mr. Norton

That includes people like gigantic semi-State concerns. You do not propose to let the E.S.B. off?

Mr. Dillon

All I want is an equitable arrangement. It appears to me that the net result of this Bill is that those who operate lorries in this country in all categories in the course of trade will pay £100,000 more per annum than they are paying at present. That is a formidable burden to put upon them bearing in mind that, in the last analysis, the people who must pay for this are the consumers or else the farmers who are producing for export. The transport costs will certainly be passed on to somebody. They do not stop dead at the man who operates the lorry. It is either the consumer or the producer who has to carry that cost in the last analysis. They are carrying enough already without a further imposition.

Mr. Norton

And the consumer has been carrying the higher rate before he saw this Bill.

Mr. Dillon

I do not understand that. The Minister tells me that this Bill will bring in to the revenue £100,000 more than he was getting heretofore. Somebody has to find it. I believe that, in the last analysis, it will be the consumer and the producer. I believe it is wrong.

Mr. Blaney

May I once again emphasise that the figure of £100,000 is rather the leakage we hope to prevent from the Road Fund than an addition to it? The duties we have talked about and the various examples quoted by Deputies are in fact duties which were payable under the law as it stood and which had been paid until recently when the interpretation of the law was in question. This is to clarify what had been in practice the law for the past six or eight years.

Mr. Dillon

It is a case of "a rose by any other name would smell as sweet." Whether we call it a tax or leakage the result is the same.

Question put and agreed to.

SECTION 3.

Mr. Blaney

I move amendment No. 1:—

Before subsection (8), to insert the following subsection:

"(8) Sums paid into the Exchequer in respect of fines under this section shall, for the purpose of section 2 of the Roads Act, 1920, be deemed to have been paid into the Exchequer under that Act."

The purpose of this amendment is to ensure that the proceeds of any fines imposed under Section 3 shall be paid into the Road Fund. A similar clause exists in other enactments.

Mr. Dillon

I cannot help asking the Minister, if what he says in respect of Section 2 is correct, namely, that it is only to prevent the leakage of sums due under previous Finance (Excise Duties) (Vehicles) Acts, why it is necessary to insert this amendment. Presumably if he is only clarifying existing law, the similar provision in previous statutes would govern the clarification contained in this?

Mr. Blaney

The previous enactment was in the Road Traffic Act and not in the particular matter we have under discussion at the moment.

Mr. Dillon

I think it is meant to collect any little bonuses that may turn up.

Mr. Blaney

I do not think we make any money on this transaction. In conformity with the usual practice in such cases, we are asking for the insertion of this amendment.

Amendment agreed to.

Question proposed: "That Section 3. as amended, stand part of the Bill."

Mr. Dillon

There is one point that requires clarification. In subsection (1) (c) (ii), there is an obligation on a lorry driver in certain circumstances to carry a member of the Garda Síochána to the weighbridge in the vehicle. Who insures the member of the Garda Síochána on that journey?

Mr. Blaney

We have legislation pending which will look after insurance cover by the State for State employees in the execution of their various duties such as this might fall into. It is intended that the matter raised by the Deputy will be one case that will be covered by this legislation which we hope to introduce in the not too distant future.

Mr. Dillon

I am obliged to the Minister for his information. On the assumption that this Bill is passed and becomes an Act of this House, this obligation immediately devolves on lorry drivers. I can appreciate that in some subsequent legislation the Minister might protect a member of the Garda Síochána by providing that if he is injured in the course of duty, he is entitled to appropriate compensation. However, can we set aside his right to sue a lorry owner on whose lorry he was travelling if he is in a position to allege gross negligence against the lorry driver? If it is proposed in some future legislation to say that the member of the Garda Síochána will have the right to have his compensation measured by a jury and awarded to him against the lorry owner, leaving the lorry owner the right against the Exchequer to cover, then I think this thing is adequately covered.

Mr. Blaney

I was not quite sure when replying to Deputy Dillon's first point. There is a provision in the present Road Traffic Act, 1933, requiring a Garda to be carried in such circumstances. There is no breach of the compulsory insurance law arising as from that obligation under the 1933 Road Traffic Act. Passengers need not be covered in such cases.

In regard to the question of any compensation that might be payable, the State would in such an instance as that quoted by the Deputy undoubtedly cover the costs of any such compensation that may or should arise from any accident or injury to a member of the Garda Síochána while performing a duty such as outlined in this Bill.

Mr. Dillon

I do not want to raise logic-chopping problems for the Minister because it is not possible always to be prepared for every question but I think he ought to look into this. You may have an insurance policy which protects you if it is comprehensive against all consequences of an accident, including third party liability. But it also contains a proviso that you are not to violate any of the provisions in the policy, and one of the provisos may be that if a lorry is covered you are not to carry passengers. Does a statutory obligation of this kind, which conflicts with that condition, preserve the validity of the policy, its terms notwithstanding?

I do not understand myself how the owner of the lorry can rest content with the statement of the Minister for Local Government in Dáil Éireann that the Government doubtless would make itself liable for any damages awarded against him. He is entitled to a more specific statement than that— (1) what is the actual liability of the lorry owner to the member of the Garda Síochána and, (2) whether, if there is a condition in his comprehensive policy of insurance that he shall not carry a passenger, is a subsequent statutory duty to carry a member of the Garda Síochána, which is enforced by a member, something which would render his comprehensive policy invalid?

Mr. Blaney

In reply to that, the statutory obligation does overrule any such clause that might be inserted in the terms of insurance, and the insurance companies in this country, in consultation with our people, have agreed that that is so. Therefore, in view of that agreement, that cannot really arise.

Mr. Norton

In those circumstances has the Guard a right of action against the lorry owner?

Mr. Blaney

The Guard can sue, yes.

Mr. Norton

Even though he is not normally, under an insurance policy, a legitimate passenger in the lorry?

Mr. Blaney

He would have the same rights as an ordinary person.

Mr. Norton

Suppose, as Deputy Dillon said, the insurance policy prevented the owner from carrying passengers, whether paying or otherwise, and then, for the purposes of this Bill, suppose he takes on a Guard and takes him to the weighbridge. Suppose he meets with an accident, either through the fault of the driver of the lorry or the fault of another lorry driver who runs into the lorry conveying the Guard. Has the Guard a right of action against the lorry driver of the lorry on which he is travelling even though the policy says the driver should not carry any passengers, or has he a right of action against the driver of the other lorry which ran into the lorry carrying the Guard?

Mr. Blaney

In some of these eventualities he could sue the owner or driver of the lorry in which he travelled. If, as the Deputy suggested, it was the fault of some other lorry driver, obviously he could sue that other driver if that driver seemed to be wrong. Over and above any or all of the actions any ordinary individual could take in similar circumstances, the Guard would have his compensation from the State.

Mr. Norton

The fact that a lorry driver may have a policy of insurance which prohibits him from carrying passengers will not invalidate the Guard's right of action against the lorry owner?

Mr. Blaney

Obviously, it would let the insurance company out, as far as the lorry driver was concerned, if he was precluded from carrying anybody.

Mr. Norton

Whom does he go for then—the State?

Mr. Blaney

Is that not the safest mark he can go for?

Mr. Dillon

Suppose he does not elect to go for the State? Suppose he elects to go for the lorry owner and the lorry owner is not protected by his policy? The member of the Garda Síochána recovers against the lorry owner and the lorry owner has to pay. What recourse has the lorry owner?

Mr. Moloney

Is he not travelling in the lorry in the discharge of his duties?

Mr. Dillon

That is all very well but suppose he elects to sue the lorry owner for negligence? We have placed a statutory duty on the lorry owner to carry him, although the lorry owner says: "I am not insured against the risk involved in carrying passengers."

Mr. Moloney

It is a nice point all right.

Mr. Blaney

That could happen in an odd case but the strange feature is that it has been the position since the Road Traffic Act of 1933 and it has never happened in all those years. However, we shall have regard to it in impending legislation and we hope to rectify even that little matter. Over 27 years that sort of thing might have happened, but in fact it has never happened.

Mr. Dillon

We may congratulate ourselves that no member of the Garda Síochána was injured in accidents heretofore. However, speaking for myself, more than 50 years have passed and I have not yet been knocked down by a motor car and I trust I shall not be knocked down tonight. In respect of the Minister, more than 40 years have passed and he has not been knocked down but we should not accept that consoling doctrine and leave a manifest flaw in legislation.

I do not press the Minister but it might be well to omit paragraph (ii) until the remedial legislation he has in mind is being enacted. Possibly this obligation may be reduced in the remedial legislation. I think it is a hardship to legislate here and put a statutory duty on a lorry owner or any section of the community to do something which leaves him liable to a very heavy damages burden in certain eventualities on no better grounds than that it has not happened heretofore. The Deputy is familiar, I think, with the history of a certain railway company which plied in Donegal. They came to the conclusion that they had been paying workmen's compensation, insurance for a generation and never had an accident. Solemnly, by decision of the board, they refused to renew their workmen's compensation, and within three months they had about seven accidents, which remained a burden upon them for the remainder of the lives of the persons who had suffered.

That, I think, is the whole theory of insurance: you may have your premium for twenty years without ever having a claim, but that is in anticipation of the average experience that if you have no claim for twenty years you may get five claims in one year. On this simple proposition the whole principle of insurance is built. I think we are cheerfully proceeding to ignore that fundamental principle in enacting paragraph (ii) without the remedial legislation which the Minister envisages. I suggest a much more appropriate procedure would be to drop paragraph (ii) and bring it back into the remedial legislation if and when that is ready for enactment.

Mr. Norton

Suppose the Guard feels that this person is driving a lorry overweight and takes it to the weighbridge? The lorry owner has a policy of insurance which prevents him from carrying passengers. In fact, he does not carry passengers when he uses the lorry. In this case, however, a Guard comes on the lorry. They meet with an accident. The Guard decides to go to the owner of the lorry for compensation. The case comes before the court. The court makes an award in favour of the Guard. The insurance company say: "We are not paying because our policy of insurance prohibits you from carrying a passenger. That means that you should drive the lorry yourself, that nobody else should be there with you. We are not paying." The lorry owner is then faced with paying £2,000 compensation. He cannot pay it. What happens the Guard then? Does the State step in and say "We will honour that and pay" or will the Guard have to initiate a separate action against the State in order to get paid? Could I get clear on that?

Mr. Blaney

Whatever might have been the award arising out of that most unlikely event, the fact is clear that the award is made. It is not made by way of a case brought to any court or before any jury or any such thing. Arrangement is there whereby awards are made to Guards or others injured in the course of their duty.

Mr. Norton

By a State calculation?

Mr. Blaney

Yes.

Mr. Sweetman

I shall put a point to the Minister in order to get some clarification of it. A Guard meets a lorry on the road, which he reasonably suspects of being overweight, and he directs the driver of the lorry to go to the nearest weighbridge, where ever it is, and directs him also to carry him, the Guard, to that weighbridge. On the journey, from the point where he stopped the lorry to the weighbridge, the lorry is involved in an accident. Is that lorry at that point of time under the control of the Guard or is it still under the control of the owner of the vehicle?

Mr. Blaney

Would the Deputy elaborate a little further?

Mr. Sweetman

I shall travel the whole distance with the Minister. What I am interested in is this: if the effect of the statutory duty that is imposed by Section 3 means that the vehicle is under the control of the Guard when it is being driven to the weighbridge, then, in respect of any cyclist, shall we say, on the road who is knocked down, the cyclist's claim would be, not against the owner of the vehicle but against the Guard who is carrying out his duty and, therefore, against the State. I do not think in this case it would be against the State. I think the person concerned has just the same rights against the owner of the vehicle as if the Guard had not given any statutory direction under Section 3.

Deputy Norton will remember as well as I do the Pearson case between Naas and Kilcullen, in which an Army vehicle was involved. In that case the Guards asked a man who was ploughing in a field to come out and take his horses for the purpose of disentangling two vehicles and pulling one of them out of the ditch. While that person was doing the job the Guards had asked him to do, as a good citizen, he was mown down— that is the only word you can use— by an Army vehicle that was being driven on an unauthorised journey. The result was that that man, who had very, very serious injuries, had no claim against anybody.

I am trying to ensure that the same thing cannot happen in this case, where a person is carrying out a statutory duty that is put on him. The case that I had in mind is something like this. The person who normally drives a lorry takes out a lorry without the connivance and without the instruction of the owner of the lorry. He is an unauthorised driver. When he is such an unauthorised driver, the owner is not covered by any insurance and there is no insurance policy to indemnify the cyclist whom that man knocks down on the road. That man is going along the road in a lorry and a Guard meets him and orders him to go to the weighbridge. He is not covered by insurance. The Minister says, and I think he is right, that though he is carrying out the State's instructions, he is probably not covered by the State and, therefore, if he does any damage in the course of the journey that he is bound to do, under this section, whether he is insured or not, the effect of it is that anybody who is injured has no redress.

The effect of this section as it is drawn is that if a Guard finds a person driving a vehicle which he suspects is overweight, it does not matter whether that person has a driving licence, it does not matter whether that person is covered by insurance or not, that person must bring the lorry to the weighbridge. It is bad enough that he was operating before that time without proper insurance cover but this section extends it and there must be some protection to ensure that we do not have a repetition of the case to which I have referred.

Mr. Blaney

I think the first point was, in the event of the driver being legitimately driving the truck at a particular time and being stopped by a Guard who orders him to proceed to the weighbridge, which may not be distant more than five miles away, and carry the Guard with him, as to whether it was the State that was then in control of the truck or the driver. The answer there is: "the driver". In the case that the Deputy further outlines of the uninsured vehicle being on the road, having been stolen, picked up, taken unauthorised, or otherwise, obviously if that vehicle was uninsured from the time the driver had taken it out and uninsured when the Guard had stopped it, it would continue to be uninsured after that.

Mr. Sweetman

My point is, is it not wrong to make the driver go a further distance when it is uninsured?

Mr. Blaney

I am coming to that. As anybody knows who has been stopped by a Guard, if you bring his gaze upon you, it is common practice that you are put through the hook on all the various items that should be properly attended to, which might include asking for your insurance, your driving licence, and this, that, and the other thing. It might well be that before the Guard got around to the stage of directing the driver to take him to the nearest weighbridge, he would have discovered that the driver in question was not an authorised driver and in that case that he was not insured, and that he had no driver's licence, no tax certificate, or anything. In that event I doubt if the Guard would proceed with the question of weighing the truck when he could throw the book at the driver in these other respects.

Mr. Sweetman

The Minister says it might well be that the Guard will find out these things. It might well be that the Guard would not find out these things. The Minister is well aware that a driver has three days in which to produce the certificate of insurance. It depends whether you take that as inclusive or exclusive.

Mr. Blaney

Both.

Mr. Sweetman

The type of driver we are visualising, such as in the Thomastown-Kilcullen case, is not the sort of person who will say straight out to the Guard: "I am not insured. I have no licence." He will chance his arm and say: "I will produce my insurance certificate in three days," or he will produce a certificate of insurance which shows that he is covered if he is driving on authorised business and will lie to prove that he is on authorised business so that no Guard using the utmost discretion and the most searching enquiry could find out the facts without a check back with the owner of the vehicle to see whether the person was driving the vehicle within the authorised provisions of the certificate.

Mr. Blaney

I can see the point the Deputy is making but what does he suggest?

Mr. Sweetman

I think there will have to be a liability upon the State, with a right of indemnity over against the person who was driving, rightly or wrongly, at the particular time. If the State steps in and, in the public good, directs that a person should do a particular job, the primary liability must be on the State to compensate anybody who is hurt by that job, the State, of course, having the right of reimbursement from the wrongdoer who has caused the trouble. That is the natural sequence of it and I think there will be very grave difficulties otherwise. It would be all right if a Guard could ascertain on the spot but he cannot ascertain on the spot. It should be covered.

Mr. Moloney

I think the point referred to by Deputy Sweetman is something which is generally unusual and that there is only about one chance in the thousand that such a case would turn up.

Mr. Sweetman

If the Deputy had lost two legs, as happened in the case I am thinking of, he would feel sore about it no matter how unusual it was.

General MacEoin

He would be more than sore about it—he would be crippled.

Mr. Moloney

But it is only one chance in a thousand. Where I think there would be a case under Section 3 is where a Garda proceeds to enforce the Act and requires the vehicle-owner to go to a weighbridge to have the vehicle weighed and if there is an accident in the course of the journey. I think it is very unfair to impose any liability on the truck-owner in that connection. I wonder if the Minister could provide for this point in the Bill or even if it could be done through the Garda regulations? Could it be provided that the Garda, because he is travelling on a truck in the course of his duty, would be exempt from liability on the truck owner? Certainly, the liability is on the State as the Garda is in the course of carrying out his duties. Also, you will have truck-owners who will not have passenger insurance cover. Quite a large number of trucks do not carry passengers and one can see the notice on the windscreen: "No passengers." That is a case which would certainly impose a very grave responsibility on truck owners. If an accident did happen and a Garda was injured in the accident it would be most unfair to expect the truck-owner to accept that liability and if there is any doubt about that I think some arrangement should be made here to define where the liability lies.

Sir Anthony Esmonde

It seems to me that in Section 3 the Minister is facing great difficulties with these legal points raised on this side of the House but, looking further into Section 3, I cannot see why it is necessary to have the first half of that section included. In the second half of the section it is possible for the authorities to have the lorry weighed at any time if they give seven days' notice. Why must you include this portion where a Garda can hold up a lorry and ask the driver to go to a weighbridge at short notice?

I have listened to all the arguments on this side of the House and to the Minister's reply and there really is not a satisfactory answer. It boils down to this: if you give the Garda authority to hold up the lorry and the lorry is only covered by third-party insurance and an accident happens, it means that, as the law stands at the moment, the lorry-owner has the liability. The Minister has told us that. He has told us that for the last 27 years the law stands as it is going to be effected in this Bill. What is the point, therefore, in introducing the first half of the section to enable a Garda to do things that he apparently can do already? It seems we are giving him almost mandatory power now to do them.

Mr. Blaney

Not at all. The Deputy has completely misunderstood this. What I have said is that there is a provision in the Road Traffic Act of 1933 which parallels the provision here of a Garda being carried on a truck to a weighbridge. There is a parallel standing for 27 years in the Road Traffic Act. I am merely pointing out that while that is so, none of the things envisaged under this provision has happened for 27 years under the similar provision in the Road Traffic Act. The Road Traffic Act provision does not deal with this situation.

Sir Anthony Esmonde

That is to say that a Garda has already the right under a previous Act to hold up a vehicle of some sort, even though it is not a lorry, and take it for some specific purpose either to the barracks or to a weighbridge? Have the Garda those powers already or have they not —that is what I am not clear on? The other query I want to make is why is it necessary to have the first half of the section? Why is it necessary to introduce into legislation the provision whereby a Garda can hold up a fully-laden lorry and take it five miles to the nearest weighbridge—it says without undue inconvenience—when the second half of the section enables the licensing authority to have the lorry weighed, and the container along with it, any time they wish by giving seven days' notice? Why is it necessary to bring the Garda into it at all and cause all this confusion which is even more confounded because nobody really knows who is standing over the insurance? Would the Minister consider deleting the first part of the section and relying on the second part which will give him everything he is looking for?

Mr. Blaney

If we could, I think it would be useful to me as well as to the House. If we could keep separate references to insurance, and references to the unladen weight, there might be less confusion, but the reason for what the Deputy describes as the first half of Section 3 is that the tax is based on the highest overall weight used on any occasion. I think the Deputy will agree that the best check on such weight is an on-the-spot check while the vehicle is in use and might be suspected by the Garda of carrying a container or additions that put it over the weight for which it was originally taxed.

In the first instance, the Garda must suspect that is so. It does not mean that he pulls in the driver just because he does not like the colour of the truck or the colour of the driver's hair. It is laid down that he must "suspect" that the vehicle is in fact operating at a higher unladen weight than that for which it is taxed. That being so, there is no parallel whatever in saying that the second part only of the section is quite adequate. It is not quite adequate. If an owner is given seven days' notice after having been observed with what appeared to be a greater unladen weight than that for which the vehicle is taxed, it is quite likely that the additions would be removed inside the seven days and that when the truck turned up to be weighed it would be under the unladen weight that was actually used on the day in question.

Sir Anthony Esmonde

Surely there is a simpler way of dealing with this matter. I am trying to stress the grave inconvenience that will be caused if a lorry can be stopped at any moment, taken to the weighbridge and unloaded. The Minister is a rural Deputy as I am, and he should know the great inconvenience that would be caused in a case like that. Surely there is an easier way of dealing with this matter than to introduce legislation such as this. Any Guard looking for promotion is naturally going to pull up lorries and cause tremendous inconvenience. Would it not be better to leave it to the local authority to collect the money? They have the full force of State authority behind them in the ordinary way and I cannot see the necessity for special legislation such as this.

Mr. Blaney

Surely the Deputy is not suggesting that Gardaí have so little to occupy them in rural areas that they will stand on the roadway and pull up trucks that may be passing without any regard as to why they are pulling them up, that they will have the time to proceed with these trucks anything up to 5 miles away, the time to unload whatever little may be on the truck, have the truck weighed and then have whatever was on it put back on again, and then be driven back 4 or 5 miles to the point at which he had first been lifted all because he wishes to be promoted, without there being in his mind a belief from the very outset that this truck owner was contravening the law? That is not very realistic and it is from my rural experience, if you like, that I say that. The suggestion should not go out from this House that a loaded truck will be taken along, its entire load taken off and put on again.

Sir Anthony Esmonde

How can you weigh it unless you unload it?

Mr. Blaney

I do not think the Deputy has read the section.

Sir Anthony Esmonde

How can you get the correct weight of the lorry unless the lorry is unloaded, and to say that I am suggesting Guards are going to stop lorries——

Mr. Blaney

Has the Deputy read the section?

Sir Anthony Esmonde

I am putting the case to the Minister that I consider this section unnecessary and the Minister has not justified it. The only answer he has made to me is that it may be possible for a lorry owner to conceal the part. This provision is such that it may cause grave inconvenience to every lorry driver in Ireland. His reply is that I am suggesting the Guards are going to waste time pulling up lorries. If this Bill is passed it is mandatory on every Guard, if he suspects a lorry has not been properly weighed, to stop it. Reference is made in this provision to "undue inconvenience." The Minister might like to tell the House what "undue inconvenience" means.

Mr. Sweetman

That is the whole point, what is "undue inconvenience"?

Mr. Blaney

It is quite obvious from the Deputy's observations that he has not read the part of the section he objects to. The only words he is concerned with are the last two, "undue inconvenience."

Mr. Sweetman

The last three: "without undue inconvenience".

Mr. Blaney

The last three. Surely there are many other words in that sub-section of the section that have some significance for anybody who wishes to read them without referring to the words "without undue inconvenience" and suggesting that is all that matters. The whole lot should be read out.

Sir Anthony Esmonde

I shall read the whole section so that there will be no mistake about it.

Acting-Chairman (Mr. Sheldon)

The Deputy may not read the whole section. That would be repetition.

Sir Anthony Esmonde

Surely I am entitled on the Committee Stage to quote from the section?

Acting-Chairman (Mr. Sheldon)

The Deputy is entitled to do so but to read out unnecessarily from a section would be a waste of time.

Sir Anthony Esmonde

I am entitled to quote this: Section 3 (1) says:

Where—

(a) a member of the Garda Síochána observes a vehicle on any occasion on a public road,

(b) the member suspects that the weight unladen of the vehicle is such that use of the vehicle constitutes an offence under section 2 of the Principal Act, and

(c) the vehicle either has no load or has a load which can be unloaded without undue inconvenience,

The reason I am reading this is that the Minister's reply to me suggested the Guards would be there making a nuisance of themselves pulling up lorries with practically nothing in them. This Section gives a Guard the right to stop a lorry fully laden and request the driver to unload it 5 miles away and re-load the lorry again. Perhaps the Minister would like to indicate how long it would take the lorry driver to unload and re-load the lorry. If that is not undue inconvenience I do not know what is.

Mr. Blaney

In regard to the instructions which will be issued to the Gardaí and to any of the officers of the local authorities who will be concerned with these matters, it will specifically be pointed out to them that no stupid interpretation of the law such as we have now had at this stage could be perpetrated on the public. When we are talking about a lorry that can, without undue inconvenience, be unloaded we will be indicating it will be a sack or two, and it will not be possible for those who want to evade the law if we did not have this part of the section included in the law, to say that because they had two sacks on the truck they were under undue inconvenience and therefore did not come within the law. It is really to deal with this situation, without trying to make use of loose wording, that this wording was brought in. Specific instructions will go out to the Gardaí and to the officers of the local authority, lest they should misread the provisions of this section or part of the section, as the Deputy fears they will. I have no such fears but the instructions will allay any fears the Deputy or any other Deputies may have and there will not be this idea of causing this nuisance suggested by the Deputy, that every lorry owner in the country would be pulled up for the mere fun of it, be brought five miles away, have the load taken off, the lorry weighed and reloaded. That just could not happen and I would ask the Deputy to accept that will be the position in the future.

Sir Anthony Esmonde

I am prepared to accept the Minister's explanation. It is quite different from the original explanation.

Mr. Moloney

I wish to refer to sub-section (3) as regards additions to vehicles such as a body, a part, a fitting, or a receptacle. The Minister did take some cognisance of the point I made on the Second Stage of the Bill in connection with the types of vehicles that were obliged to carry receptacles or fittings for certain casual or occasional work.

The Minister did not commit himself very much but he did at least accept that there might be a case for some of those vehicles in so far as it would be possible for them to operate on a differential rate of tax. At the outset I thought that the section was to some extent meeting the position but I do not think he is going far enough. It was suggested that an owner might tax a vehicle if it was not carrying the receptacle for the first quarter at the unladen weight of the vehicle and if he carried the receptacle for the second or third quarter, he would pay the appropriate rate of tax and then, if he was not using the receptacle for all the year for which he had paid the additional tax, he could make an application for a refund. However, if a vehicle owner were to tax his vehicle in that way, it would cost him a greater amount of tax because it costs a few pounds more to tax a vehicle by the quarter than to tax it for the full year.

The Minister is not making provision by way of amendment for these eventualities but if he considers that it can be dealt with without an alteration in the Bill I am happy. I suggest that the remedy he proposes does not meet the case fully. If a vehicle owner were using a container for one month, it would be reasonable to expect him to tax it for a quarter and, if he did not use it for nine months of the year, he should be entitled to disregard the receptacle and reweigh the vehicle without it.

Mr. Blaney

If I am in order in replying to the Deputy, I would like to say that we have gone further than he realises. If, in the second or third quarter of the year, a particular container which was not necessary were being used on a truck and which was not used for the other nine months, then the additional tax in respect only of the quarter in respect of which the truck is used with the container would be chargeable. The tax for the year would be taken from the owner but it would be rebated in accordance with the use of the container.

Mr. Sweetman

I was going to put down an amendment to subsection 4. The Minister knows I have very strong views on it but I was rather puzzled by the drafting of the section. The receptacle is defined in subsection (2) of Section 2 as being one of the additions to the vehicle. Subsection (2) is the effective provision which carries through the principle of the Bill. I cannot understand why, that being so, and the receptacle being defined in subsection (2) as being one of the additions, the receptacle itself is not also defined in subsection (4) instead of being generally defined as a sort of by-pass in the enforcement section. It seems to me to be an unusual drafting and I felt that perhaps there might be such a definition somewhere else in the Bill. It is most unusual to have a definition in an enforcement section and not in the main carrying section of the Bill. The Minister will see that subsection 3 of Section 3 follows out subsection 2 of Section 3.

Mr. Blaney

Subsection 4 of Section 2.

Mr. Sweetman

Subsection 3 of Section 3 follows virtually entirely subsection 2 of Section 2 but subsection 4 of Section 3 does not at all follow subsection 4 of Section 2. I cannot understand the drafting at all.

Mr. Blaney

I do not quite agree that something is omitted from one section that is included in another but I do agree that it does appear strange that almost the same clauses and wording should be used in two separate sections where one would suffice. The necessity for the repetition is in the drafting because some of the clauses used in Section 2 are unavoidable in Section 3.

Mr. Sweetman

Under paragraph (b) of subsection 4 of Section 2, it says that anything so placed is excepted from the foregoing paragraph. That exception is not in the enforcement subsection 4. Where are the definitions? As I read subsection 4 of Section 3, it is the same as Section 2 subsection 4 (a) but I cannot find where subsection 4 (b) is covered in subsection 4 of Section 3.

Mr. Blaney

There was a reason for this repetition and possibly the reason is explained in the proviso in Section 2, subsection 4 (b) regarding receptacles since it is for the vehicle owner to prove that any such receptacle should not be included in the unladen weight and, pending such proof, the owner should pay the weight of the vehicle and the receptacle for use on a particular occasion.

Mr. Sweetman

Then I am to take it this way—that the Minister's explanation of the wording of subsection 4 of Section 3 is that anything on the lorry must be weighed and, notwithstanding the weight, it is deemed to be an exception and the owner can then come in and contest the weight by saying that it was not the true weight because there was on the lorry something to which subsection 4 (b) applied.

Mr. Blaney

That generally I think is the position, namely, that it is for the owner to prove in such cases.

Mr. Sweetman

Can I travel on from that?

Mr. Blaney

Very well.

Mr. Sweetman

If that is so, surely there must be some method by which an agreed weight, there and then on the spot, for contested articles can be arrived at? If the position is that the whole lorry is taken in and weighed and the owner says: "I challenge that part of it," there should be some provision whereby, on demand, the member of the Garda Síochána who brings it in for weighing must weigh any particular article so that they will have an agreed weight for that and then they can argue it before the District Justice. Otherwise, a great deal of unnecessary time and money will be spent in arguing.

Mr. Blaney

The position, as far as I can ascertain in relation to what the Deputy has been saying, is that no Garda is likely in his sane senses, and I take it they are all in their sane senses when they are in uniform, to bring about such a situation. I am relying on them not to get us into such a knot as that with which the Deputy has confronted us.

Mr. Sweetman

The Minister has not been able to assimilate it.

Mr. Blaney

The Deputy has not been able to assimilate what is there.

Mr. Sweetman

I am dealing with it every day.

Question put and declared carried.

SECTION 4.

Question proposed: "That Section 4 stand part of the Bill."

Mr. Sweetman

Are deadweights inspected?

Mr. Blaney

Yes.

Mr. Sweetman

And, so to speak, certified as being true? Who does that?

Mr. Blaney

Yes. The Weights and Measures Act covers that.

Mr. Sweetman

Who does it?

Mr. Blaney

I suppose the Weights and Measures Inspector.

Mr. Sweetman

Is he a local authority official or a Garda?

Mr. Blaney

I do not know about the cities or county boroughs but down the country it is usually a Garda sergeant or a Garda who does it.

Mr. Sweetman

It used to be but I thought there was some change.

Mr. Blaney

In my part of the country, it is still a Garda who does it.

Question put and agreed to.

Section 5 agreed to.

Title agreed to.

Bill reported with amendments.

Acting Chairman (Mr. MacCarthy)

When is it proposed to take the next stage?

Mr. Sweetman

We are prepared to give the Report and final Stages next Wednesday.

Report Stage ordered for Wednesday, 24th February, 1960.