I move that the Bill be now read a Second Time.
This Bill is designed to reform the law as to civil liability and the long title of the Bill so indicates. Three important branches of private law are dealt with. Firstly, it is proposed to consolidate and amend the law with regard to the survival of causes of action on death. Secondly, the law as to what the Bill calls "concurrent fault" is being amended and codified. Thirdly, the existing statutory law as to fatal accidents is being re-enacted in the light of the earlier provisions of the Bill. As the Bill is accompanied by a long and comprehensive Explanatory Memorandum, I do not propose to go into detail on the various sections and shall confine myself to a general elaboration of the principles involved.
Part II of the Bill is concerned with the rule that a personal action dies with the person. This rule is a rule of the common law. It finds no place in Scots law. The legal maxim actio personalis moritur cum persona is a very old one and its exact meaning is far from certain. It is inaccurate in that there are many personal actions such as actions in contract, by reason of the common law itself, and actions for wrongs to specific personal property, because of statute, that do not die with the person. Indeed, the existing rule has been said to be one that has been made at all tolerable for a civilised country only by a series of exceptions. At present the special sphere of the rule is the law of tort and it applies on the death of either party to claims for unliquidated damages for personal injuries, fraudulent misrepresentations, defamation and trespass to goods or land. The rule has no application in cases coming within the Fatal Injuries Act, 1956. The dependants of a deceased person killed by the negligence of another have, since Lord Campbell's Act of 1846, been able to recover damages in respect of the financial loss caused to each of them by the death. The range of dependants was enlarged by the 1956 Act to include brothers and sisters, adopted and illegitimate children and also persons in the relationship of in loco parentis.
Sections 6 to 10 of the Bill will allow for the survival of causes of action vested in or subsisting against a deceased person and the Schedule lists for repeal a number of enactments dealing with the matter and dating back to 1285. Certain causes of action which are regarded as purely personal, such as breach of promise and defamation, are being excepted. In these actions the presence of the plaintiff or the defendant may be of the greatest importance.
Section 7 (2) of the Bill will prevent the recovery for the benefit of a deceased person's estate of damages for pain or suffering or personal injury or loss or diminution of expectation of life or happiness. Damages of this type are recoverable in England and in the North under legislation enacted in England in 1934 and followed in Belfast in 1937. It appears that the Law Revision Committee whose report was responsible for the 1934 Act were not alive to the fact that the implementation of their recommendations would have had any such result. In fact some members of the Committee expressed dismay at the development that occurred.
What can in fairness, be described as chaos followed the legislation in England until finally an attempt was made to clarify the law in a decision of the British House of Lords in 1941. This was the case of Benham v. Gambling referred to at paragraph 10 of the Explanatory Memorandum. The result was to restrict considerably damages for loss of expectation of life or happiness.
The English law as laid down in 1941 may be summed up under five heads. Firstly, whether in the case of child or an adult, very moderate figures must be chosen. Secondly, the sum awarded is not to be determined by applying a statistical or actuarial test as to the number of days or years of life of which the individual has been deprived. Thirdly, the test is objective and not subjective. Fourthly, the appropriate figure should be reduced in the case of a very young child. Fifthly, the social position of the deceased, his prospects of worldly possessions and the financial losses or gains that he might have expected are to be excluded. These rules make for a large amount of impossibility and unreality. "In putting a money value on the prospective balance of happiness in years that the deceased might otherwise have lived, the jury or judge in fact is," said Lord Simon in Benham's Case“attempting to equate incommensurables”. It seems that “the thing to be valued is not the prospect of length of days, but the prospect of a predominantly happy life”. In the same case, Lord Simon made the following statement in reference to the social and financial position of the deceased: “Lawyers and judges may here join hands with the moralists and philosophers and declare that the degree of happiness to be attained by a human being does not depend on wealth or status.”
Benham v. Gambling has been subjected to strong criticism in England, and it has been called “the most notable example of judicial legislation in recent years.” Though the underlying motive may have been to prevent the award of substantial damages to the executors of a deceased person for injuries suffered when he was alive, the decision ought logically apply to cases where the injured person survives. However, in the case of a living plaintiff, the difficulty can presumably be overcome by awarding large damages under the head of pain and suffering. The result will still be that it may often be cheaper to kill a man than to main him, but the real solution of this must be to allow for sufficient damages to be awarded to those who suffer loss by the death. The dependants and not the estate are the people who are injured by the death. Where the deceased has willed his property to a stranger there is no strong case for allowing the stranger to obtain, in addition, damages for loss of expectation of life. It should be noted that funeral expenses may be recovered under subsection (4) of Section 7.
The whole problem is a difficult one, especially when one considers that the person who has lost his expectation of life or happiness is dead and that damages are being awarded not to him but to his personal representative on behalf of his estate. In the Bill of the English 1934 Act damages for pain and suffering were excluded, but the relevant provision was omitted in the House of Lords at the private suggestion of Lord Wright who was a member of the Law Revision Committee. Why this was done is not clear nor why, once it was done, exemplary damages were retained.
Be all this as it may, we had to take a decision one way or another. The Government, having carefully considered the various aspects, were satisfied that it would be better to exclude damages for pain and suffering and loss of expectation of life. Though speculation as to what figure can properly be placed subjectively—or objectively—on the shortened expectation of life and the prospective happiness of a deceased person may be very interesting in theory, we are of opinion that it should in practice be avoided and that our Courts should not be asked in particular cases to do the impossible. If our Courts were to follow the English decision, the amount to be awarded must be small. It has been said in England that the maximum figure should be £500. Generally it would seem that the loss of a measure of prospective happiness has been substituted for the shortening of life; and in a case in 1952 a low award was made where the deceased was living apart from his wife who, as a Catholic, would not divorce him. In a case in 1950, £5,249 was awarded to the dependants under the Fatal Accidents Acts and £1 under the 1934 Act. These cases show the absurdities that emerged. In assessing damages under the Fatal Accidents Acts, account must be taken of any damages payable under the 1954 Act to the dependants as beneficiaries in the estate. Similarly, the Court that is assessing damages under the Act of 1934 must take into account the fact that damages under the Fatal Accidents Act have been or may be given. Although the two claims are independent and may accrue for the benefit of different persons, nevertheless, if the provision for the dependants is made good under the Fatal Accidents Acts, the loss consequent on the shortening of life is to be deemed to be pro tanto reduced. There can be no duplication of damages. In England, it is better to claim under the Fatal Accidents Acts because the damages recoverable under the 1934 Law Reform Act are subject to death duties and also subject to the claims of creditors. Before I leave this subject and the peculiarities of awards under the 1934 Act, let me quote from the conclusion of an article, with the title: “Is life a Boon?”, that appeared in the Law Quarterly Review in 1941.
"It is clear," wrote Sir Carleton Allen, "that we need another statute and it is to be hoped that it will not, in the ingenious and diverting manner of so many of our statutes, produce exactly the opposite effect of that which was intended."
Part III of the Bill deals with concurrent fault and embraces the liability of concurrent wrongdoers, contribution between concurrent wrongdoers and contributory negligence. It is proposed not alone to amend the existing law but also to declare it in statutory form. This represents, as the Explanatory Memorandum points out, the first attempt at codification in the realm of tort in any of the common-law jurisdictions. Part III follows the measure suggested by Dr. Glanville Williams of the University of Cambridge in his Joint Torts and Contributory Negligence published in London in 1951. As Dr. Williams himself mentions, his proposals are based on a study of the law in Britain, Canada and this country and also on the work of the United States authority, Professor Gregory, whose Legislative Loss Distribution in Negligence Actions was published in Chicago in 1936. Lawyers and students will be familiar with Dr. Williams's work, which is constantly referred to in the leading textbooks on the law of torts and which was cited with approval by counsel in the High Court case of Moloney v. Llewellyn decided last year and mentioned at paragraph 25 of the Explanatory Memorandum.
Sections 11 to 33 provide for the liability of concurrent wrongdoers and also for contribution between such wrongdoers. The sections will replace the Tortfeasors Act, 1951, which has been found unsatisfactory in practice, and also the common law. "Wrongdoers" will include persons who commit an ordinary civil wrong (tortfeasors), persons who commit a breach of trust and persons who commit a breach of contract. By reason of Section 12, a concurrent wrongdoer will, as in general under existing law, be liable for the whole damage except where the plaintiff is guilty of contributory negligence or in the case of proprietary damage resulting from a collision at sea. Concurrent wrongdoers will be liable to have judgment issued against them together or separately and special provision is being made for cases of insolvency in Section 14.
Sections 21 and 27 will enable a concurrent wrongdoer who is sued by an injured party to recover contribution from a fellow-wrongdoer, as under the 1951 Act; but he must make his claim for contribution in the same action. This is not possible under the Tortfeasors Act, 1951, where all the wrongdoers are not sued together. This was the case in Lee v. Dublin Corporation, decided by the Supreme Court a few years ago and reported in the 1956 Irish Reports. The proposals in the Bill are designed to avoid as far as possible multiplicity of actions in respect of the same set of facts and to ensure that, except in unusual cases, all matters of liability, whether between the injured party and a wrongdoer or between the wrongdoer and fellow-wrongdoers, will be heard and determined in the one action.
Sections 34 to 42 are concerned with contributory negligence. The main provision is that contained in Section 34 (1). It is proposed to provide that in every case of negligence, where both the plaintiff and the defendant are at fault, each party will pay for his own share in the responsibility for the damage. Under existing law, a plaintiff fails in a negligence action if he has himself been guilty of contributory negligence, unless he can prove "last opportunity" of the defendant. Apportionment for common fault was introduced in the Continental legal systems during the last century. It also prevailed in maritime cases, the original Admiralty rule being equal division of loss. In the common law jurisdictions for causes of actions arising on land, the first step was taken in Canada in 1924. As a result of a recommendation of the Law Revision Committee in 1939, the British Parliament enacted the Law Reform (Contributory Negligence) Act, 1945. This legislation was followed in New Zealand and Western Australia by legislation passed in 1947 and in Belfast by legislation passed in 1948. In South Africa an Apportionment of Damages Act was enacted in 1956.
Apportionment legislation has met with almost universal approval. There has, however, been in certain jurisdictions a movement away from the notion of common fault towards that of absolute liability in the case of motor accidents. In French law, liability for such accidents is strict and the presumption of responsibility is rebuttable only on proof of what is known as force majeure or cas fortuit, or some outside cause not imputable to the defendant. The Cour de Cassation or final French Court of Appeal has held that where two motorists collide, each party must pay for the damage done to the other car and its driver and passengers. This is the opposite of the idea that once a dangerous thing is moved by a human agency, and becomes dangerous only when so moved, the damage is caused by the human being and not by the thing.
The French concept of applying to car accidents what we know as the rule in Rylands v. Fletcher may appear illogical, unless it is understood that, insurance against third-party risks being much commoner than insurance of oneself and one's own car, the whole of the loss is far more likely to fall on insurance companies than if any other solution had been adopted. The practical result of collisions between motor cars is very much the same with us. As Deputies will be aware, where two insurance companies are involved they apply the “knock-for-knock” arrangement, under which each company shoulders the loss suffered by the party it has insured. Though in France each company bears the loss of the party it has not insured—in other words, the other way round—the end result as far as insurance companies are concerned is the same, because what a company loses on the swings in some cases it gains on the round-abouts in others.
In Quebec and Ontario, there is a presumption of responsibility in every car accident where one part is a motorist and the other is not; and the onus of disproving negligence is upon the owner or driver. In Saskatchewan, there is a state insurance scheme and compensation is paid from a central fund irrespective of the driver's fault. All owners and drivers contribute to the fund by paying premiums. This goes much further than the French system or our "knock-for-knock" system in that it operates whether or not each party is a motorist. The first Saskatchewan legislation was passed in 1946 following the report of an inter-departmental committee. The idea of extending to car accidents what is the principle of workmen's compensation had been propounded in New York in 1932 by the Columbia University Committee on Compensation for Automobile Accidents.
So much for the comparative aspect of the negligence problem. Let me now give an example of what apportionment of responsibility as proposed in Section 34 of the Bill will mean in practice. Two motorists A and B are involved in an accident through the negligence of each, so that A suffers damage to the extent of £500 and B to the extent of £100. It is held that A's responsibility amounts to four-fifths of the total responsibility and B's to one-fifth; that is to say, the proportion of responsibility is 4/1. A will recover from B one-fifth of his damages or £100 and B will recover from A four-fifths of his damages or £80. Thus, on balance B will owe A £20. A will suffer his original damage (£500) less £20, or £480, and B will suffer his original damage (£100) plus £20, or £120. This is a fair and reasonable approach and accords with distributive justice.
Though there is no need for a last opportunity rule in a system of apportionment, it is not quite clear whether and to what extent the rule has survived the 1945 Act in England. Moreover, something approaching very close to "last opportunity" has been introduced into Admiralty cases. As a Canadian authority points out the appellate courts in England, after the Judicature Act of 1873 had allowed appeals from the Admiralty Division of the High Court, "failed to realise that last clear chance was fashioned to alleviate the harshness of another common-law rule unknown to Admiralty." This was the common-law rule of "all or nothing." I was rather surprised to discover that "last opportunity" has even crept into French law to some extent and a case decided by the Cour de Cassation in 1928 has been referred to as the French Davies v. Mann. I do not propose to go into the complexities of “last opportunity” which, I am afraid even the most skilled lawyers find difficult fully to comprehend and expound. Suffice for me to point out that, in order to avoid any doubt in the matter, it is proposed in section 34 (2) (b) specifically to abolish the rule in its particular applications. This will obviate the confusion which has arisen in England by differing statements of judges as to the effect of the 1945 Act. In addition, we are following the precedent set by South Africa in her Apportionment of Damages Act, 1956, of which I have already spoken.
Sections 43 to 49 of the Bill contain general provisions dealing with the law of concurrent fault. The principal section is Section 47, which covers collisions at sea. The section proposes to re-enact, subject to certain desirable amendments, the existing law as contained in the Maritime Conventions Act, 1911. That Act replaced the old Admiralty rule and was designed to implement the Brussels Convention of 1910. This it did not fully do, and the omission is being remedied in Section 47.
Parts IV and VI of the Bill propose to re-enact the Fatal Injuries Act, 1956, and to amend Section 18 of the Air Navigation and Transport Act, 1936. Part V makes certain changes in the Workmen's Compensation Acts, 1934 and 1953. These changes are purely consequential and are being made solely to keep the relevant provisions of these Acts in line with the amendment of the law of contributory negligence proposed in Section 34 (1).
I trust that the Explanatory Memorandum has been of assistance to Deputies in studying the proposals in this Bill. This is in very many respects a technical and difficult Bill and, for that reason, it was decided to accompany it with a longer and more detailed commentary than is usually called for in the case of Bills that come before the House. As I said earlier and as the Memorandum explains, Part III of the Bill is based on the measure suggested by Dr. Glanville Williams, at present in the University of Cambridge and formerly Quain Professor of Juris-prudence in the University of London. Dr. Williams at an early stage was kind enough to offer us every help. He was as good as his word; and I should like to express to him our thanks for his invaluable assistance and for his readiness at all times to place at our disposal the results of his scholarship and research not alone in regard to concurrent fault with which his book, Joint Torts and Contributory Negligence, is concerned but also in regard to problems that we had to consider in connection with the survival of causes of action on death. We are extremely grateful to him.
Copies of the Bill and of the Explanatory Memorandum have been forwarded to the members of the Judiciary, to the Bar Council, to the Council of the Incorporated Law Society and to the law schools of the Universities. I need hardly say that we will welcome any suggestion that will lead to the Bill's improvement so that we will ultimately have the best possible measure. We are here concerned with a wide range of legal issues that are of importance not only for the lawyer but also for the community in general.
I recommend the Bill to the House.
