Skip to main content
Normal View

Dáil Éireann debate -
Thursday, 27 Jul 1961

Vol. 191 No. 12

Committee on Finance. - Civil Liability Bill, 1960—Report Stage.

I got a copy of this Bill as amended in Special Committee. The amendments we agreed to in Special Committee are incorporated in this?

The sheet of amendments that I have got comprising five pages are new amendments?

They are almost exclusively drafting amendments.

There are 58 of them. I have two amendments.

One of which is out of order.

One is believed to be out of order. Would it be possible to produce a new copy of the Bill with these amendments put into it and let us discuss it on Tuesday next?

You cannot put them in without adopting them. This is the Report Stage.

Could we provisionally adopt them?

They are drafting amendments mostly.

Would it not be a good idea if we adopted these and you incorporated them in the Bill and we had a Second Report Stage on Wednesday?

I do not know if that would be possible.

We will devise a plan. We have a fine Clerk and a competent Ceann Comhairle. What we want to do is to incorporate 58 amendments which we are assured arise out of the Committee Stage in the Civil Liability Bill and then re-commit it. Cannot we re-report it?

You can re-commit but I do not know of any method by which you can re-report.

We do not want to have a Committee Stage on each separate section.

Why not let us see how we go? I do not think we will have any difficulty.

If I were to call five divisions you would not get this Bill tonight.

I move amendment No. 1:

In page 4, line 25, after "Act" to insert ", save where the context otherwise requires".

This is a drafting amendment. In certain cases the context may require a different interpretation from the definition contained in Section 2. For instance "damage" in Section 46, subsection (1), obviously does not include loss of life and personal injury. We are merely inserting the words "save where the context otherwise requires".

Do not these amendments arise out of the Special Committee?

Mainly, yes.

It is obvious we are in a dilemma. This is a procedure to which we are not accustomed. We had a Special Committee. They have done a great deal of work on this Bill. These amendments very largely are consequential on undertakings given by the Parliamentary Secretary and discussed at the Special Committee. We must have some atmosphere of realism in our legislation. There are now 58 amendments for incorporation in this Bill. We are prepared to say put them all in and let us have another look at the Bill with them all in.

And with some explanation.

Reserve the explanation for the next Stage.

If you like to do that, I do not mind.

What Stage would that be—the Final Stage?

I think we should have a re-Report Stage.

The Report is reporting what the Dáil in Committee does.

I think we will dispose of the amendments in half an hour.

Very well.

Amendment agreed to.

I move amendment No. 2:

In page 4, between lines 31 and 32, to insert the following definition:

"‘any other limitation enactment' includes Sections 31, 46 and 50;"

It is proposed to define "any other limitation enactment" and to use that expression throughout the Bill. Any other limitation enactment will include Sections 31, 46 and 50 of the Bill.

You are putting in another definition?

Another definition. We just want to make it clear that where the words "any other limitation enactment" are used throughout the Bill that will include Sections 31, 46, and 50 of the Bill.

Of this Bill?

Of this Bill.

Amendment agreed to.

I move amendment No. 3:

In page 4, between lines 31 and 32, to insert the following definitions:

"‘bankrupt' includes an arranging debtor;

‘bankruptcy' includes an arrangement under an order of the court for protection;".

Can the Parliamentary Secretary indicate which of these amendments are introduced as a result of discussion at the Special Committee?

Yes. This amendment is to make it clear that "bankrupt" includes an arranging debtor.

That is another definition?

Very well.

Amendment agreed to.

I move amendment No. 4:

In page 5, line 3, before "loss" to insert "loss of property,".

This, again, is a drafting point. It is to ensure that damage to property will include loss of the property itself. For example, in a collision at sea, damage to the vessel could mean the loss of the vessel. In other words, it is to make it clear that damage includes complete disappearance of the property as well as damage to it. In other words, when we say "damage" to a ship we include in that the fact of the ship being lost altogether.

The greater would include the less. If there was complete disappearance, you would not get damages for partial injury as well.

When we speak of damage to property, we normally mean injury to property. We want to make it clear that we also mean complete loss of property.

Amendment agreed to.

I move amendment No. 5:

In page 5, line 20, to delete "for whom" and substitute "for whose acts".

Amendments Nos. 5 and 26 are drafting amendments. A person, such as a master, is responsible for the acts of another person, such as a servant. Strictly speaking he is not responsible for that person, though he is responsible for the wrong. I merely want to delete "for whom" and substitute "for whose acts".

Amendment agreed to.

I move amendment No. 6:

In page 5, to delete lines 33 and 34 and insert the following section:

"(1) Nothing in this Act shall have effect in relation to any cause of action which accrued before the passing of this Act.

(2) Nothing in this Act shall—

(a) render enforceable any agreement for indemnity which would not have been enforceable if this Act had not been passed, or

(b) affect the power of the court to stay proceedings that are an abuse of the process of the court."

Perhaps the Parliamentary Secretary would indicate on each amendment what it is about?

It is proposed to combine Sections 4 and 47 of the Bill in one section and to put the new section in the Preliminary and General Part. Paragraph (c) of Section 47 is not being repeated as it is not necessary. It is purely tightening up.

Where does this go in?

It is going in here.

Line 33 is the first line of Section 4.

Amendment No. 45 is consequential.

Line 33 of the Bill as amended in Special Committee is line 1 of Section 4.

Section 4 goes out.

We are deleting Section 4 and substituting a new section.

There is Section 4 and Section 47. We are putting this section in their place.

It is a composite section.

It is a strange way to submit an amendment.

Paragraph (c) is going out of Section 47.

Is there any difference between "cause of action which accrued before the passing of this Act" and "cause of action which accrued before the date of the passing of this Act"?

There is no difference.

Why not leave it?

Amendment agreed to.

I move amendment No 7:

In page 6, line 44, to delete "(including sections 31 and 46 of this Act)".

This is what we dealt with on Amendment No. 2. Amendments 2, 7, 15, 17, 25 and 38 go together. The expression "any other limitation enactment" has now been defined.

Amendment agreed to.

I move amendment No 8:

In page 7, line 37, to delete "simultaneously".

This amendment covers a point raised on Special Committee. We want to provide for the case where, for instance, a person is killed by being knocked down by one motor car into the path of another and it is not possible to say which fault actually caused the death. In such a case, there might be argument as to whether or not there was simultaneous negligence and as to whether the two negligent courses of conduct overlapped or coincided. Deletion of the word "simultaneously" will avoid any such argument. There must, of course, be some element of simultaneity about the two acts of negligence, as otherwise it could not be doubtful which of the two acts did the damage. It is only where it is not possible to say which fault is actually responsible for the damage that the subsection will apply. Generally speaking the Committee were agreed that it was better to avoid the word "simultaneously".

We are deleting the word "simultaneously". I do not know if this is in the old Bill but at line 40 I see "... not possible to establish which is the case ..." that seems a bit odd. The situation is that two people are at fault, one is responsible and the other not, and it is not possible "to establish which is the case".

I think that is the best phrase to describe it.

It means "to establish who is responsible".

Why not say so. I was not at all the meetings of the Committee. Perhaps it was in the original draft.

I do not think it was.

It seems a funny phrase. I wonder is the term to be found elsewhere, "... not possible to establish which is the case"?

I do not think so.

This provision was inserted at the Special Committee. The phrase is the best phrase that could be arrived at for the purpose.

Amendment agreed to.

I move amendment No. 9:

In page 7, line 38, before "responsible" to insert "or are".

This is purely a grammatical amendment to insert "or are".

Amendment agreed to.

I move amendment No. 10:

In page 8, line 30, to delete "rendered" and substitute "given".

Amendments Nos. 10, 11 and 32 all deal with the same point. The Special Committee decided it was better to use the word "given" in relation to a judgment.

You have not used it.

We are doing so now.

What about line 7 on page 9: "where the court would be prepared to award...."

That is not "judgment". That is damages. We are deleting "rendered" and substituting "given" in relation to "judgment".

The word applies to judgment as distinct from an award.

Amendment agreed to.

I move amendment No. 11:

In page 9, line 12, to delete "awarded" and substitute "given".

Amendment agreed to.

I move amendment No. 12:

In page 9, line 40, to delete "Chapter III of this Part" and substitute "subsection (1) of section 34".

It was agreed in Special Committee to specify subsection (1) of Section 34 throughout the Bill where there was a reference to reduction of damages for contributory negligence. This is a more specific reference.

Amendment agreed to.

I move amendment No. 13:

In page 10, lines 40 and 41, to delete "under Part IV in respect of loss suffered by" and substitute "for the benefit of".

The word "loss" does not now appear in Part IV. There is no need to specify that part as we are not specifying Part II in respect of the benefit of the estate.

Amendment agreed to.

I move amendment No. 14:

In page 10, line 52, to delete "awarded in pursuance of section 38 or section 46" and substitute "given in pursuance of section 14, section 38 or section 46."

This is consequential on a point raised by the Bar Council on Section 12. The subsection contains a reference to Section 14. Apportioned judgments may be given under subsection (3) of Section 34 as well as under Sections 38 and 46.

Amendment agreed to.

I move amendment No. 15:

In page 11, lines 29 to 31, to delete "or any other enactment limiting the time within which proceedings may be taken" and substitute "or any other limitation enactment."

Amendment agreed to.

Amendments Nos. 16, 18, 21, 29, 31, 33, 34 and 37 are cognate.

I move amendment No. 16:

In page 11, lines 46 and 47, to delete "to the extent of that contributor's responsibility for the damage and substitute "to the degree of that contributor's fault."

Again, this arises from the discussion at the Special Committee. It was agreed on Special Committee that liability for damage should be based on "fault" and that the expression "fault" should be used in the Bill. The amendments are consequential on the use of "fault" in Section 34 (1). The expression "degrees of fault" was inserted in Section 34 (1) but, through an oversight, the words "in the responsibility for the damage" were allowed to remain. It is now proposed to delete these latter words. They are not appropriate any more. The amendments will mean that it will be clear throughout the Bill that "fault" or "degree of fault" will determine responsibility in all cases of concurrent wrongdoing. This is in accordance with the principle accepted by the Special Committee. In the present text of the Bill the expression "degree of fault" is used in Section 14 (3), Section 34 (1) (a) and Section 46 (1) (a).

Amendment agreed to.

I move amendment No. 17:

In page 12, lines 40 and 41, to delete "or any other enactment limiting the time within which proceedings may be taken" and substitute "or any other limitation enactment".

Amendment agreed to.

I move amendment No. 18:

In page 15, line 12, to delete "responsibility" and substitute "fault".

Amendment agreed to.

I move amendment No. 19:

In page 15, between lines 18 and 19, to insert the following paragraph:

(b) Paragraph (a) of this subsection shall apply between two parties notwithstanding that one of them is party to the two actions in different capacities.”

It was agreed on Special Committee that the res judicata rule should be applied in all cases irrespective of whether or not the parties were parties to the actions in different capacities. Accordingly, in the text of the Bill as introduced paragraph (b) of Section 29 (6) and subsection (2) of Section 37 were deleted. On further consideration, I felt that these deletions might not be sufficient. It occurred to me that it might be argued that all we were doing in Sections 29 (6) and 37, as they are at present in the Bill, was stating or clarifying the res judicata rule and that we were not amending the law where the parties were parties in different capacities. These two amendments are necesary because we want to write clearly into the Bill the principle agreed by the Special Committee.

Amendment agreed to.

I move amendment No. 20:

In page 15, to delete lines 35 to 47.

I mentioned at the Special Committee that there were certain matters in relation to bankruptcy that I was examining. I indicated to the Special Committee that I would be doing something about them on Report. Apart from certain technical amendments, there was the issue of proof of claims for unliquidated damages. I am satisfied that all claims for unliquidated damages should in principle be provable in bankruptcy where there is a liability at the time of the bankruptcy. There seems to be no valid reason why claims for unliquidated damages arising out of a breach of contract should be provable while claims arising out of an ordinary tort should not.

It is proposed to delete subsections (2) and (3) of Section 30 and to insert a new section in the miscellaneous part of the Bill allowing claims for damages or contribution in respect of any wrong to be provable in bankruptcy where the wrong was committed before the bankruptcy. Where the damages or contribution have not been liquidated, the court may, under subsection (2) of the new section, make an order for the assessment of the amount. This accords with the provisions of Section 46 of the Bankruptcy (Ireland) Amendment Act, 1872, in regard to unliquidated damages in the case of a contract or promise. Subsection (3) of the new section simply repeats subsection (3) of the existing Section 30.

I think that the new section represents a valuable amendment of the law. The section will not operate in cases coming within Section 63 because, under that section, where a wrongdoer is insured, the insurance moneys will be payable direct to the injured person, who will then, of course, not be a claimant in the bankruptcy.

I envy the Parliamentary Secretary the brief he has before him, which he so comfortably reads out to us and which, I am sure, in the written record of our proceedings will throw a flood of light on these matters. But, ad interim, I should like to raise this question. The Parliamentary Secretary's attention has probably been drawn to a remarkable case in which a man was injured in a motor accident and recovered very substantial damages against the driver of the car, who was fully insured. It then transpired that the driver of the car, either at the time of the accident or subsequently, became a bankrupt, whereupon the injured party discovered to his dismay that when the insurance company came to indemnify the insured party, it appeared that the sum received by the injured party to indemnify him against the damages awarded against him would become liable to seizure for the benefit of the bankrupt insured person's creditors and that the situation could arise in which the man who suffered the damage would lose all except, perhaps, whatever compensation the bankrupt was in a position to pay. Does this section and the deletion now proposed bear upon the facts of that case?

No, but my remarks did bear on it. As the Deputy will recall, I referred to Section 63, which will ensure that insurance moneys go direct to the injured party. The Deputy will agree that that is a valuable form.

And that, I take it, arises out of the circumstances surrounding this particular case?

Yes; that type of case is included.

The difference between the Parliamentary Secretary and myself being that I have got to try and think these things up as I go along, whereas the Parliamentary Secretary has it on paper before him there.

That is the advantage of sitting over here.

Indeed it is.

And it makes me very anxious to continue doing so.

I never suspected the Parliamentary Secretary of having any other intention.

Amendment agreed to.

I move amendment No. 21:

In page 16, lines 35 and 36, to delete "in the responsibility for the damages".

Amendment agreed to.

I move amendment No. 22:

In page 16, line 59, to delete "claims" and substitute "actions".

Section 31 provides for "actions" and we want to have the same wording here.

Amendment agreed to.

I move amendment No. 23:

In page 17, line 52, to delete "Part" and substitute "section".

The expressions "nominal plaintiff" and "beneficiary" occur only in Section 35.

Amendment agreed to.

I move amendment No. 24:

In page 18, line 1, to delete "Part" and substitute "section".

Amendment agreed to.

I move amendment No. 25:

In page 18, lines 54 and 55, to delete "or any other enactment limiting the time within which proceedings may be taken" and substitute "or any other limitation enactment".

This is consequential on amendment No. 2.

Amendment agreed to.

I move amendment No. 26:

In page 19, line 18, to delete "for whom" and substitute "for whose acts".

Amendment agreed to.

I move amendment No. 27:

In page 19, line 30, to delete "bankrupt or otherwise insolvent" and substitute "a bankrupt".

Amendment agreed to.

I move amendment No. 28:

In page 19, lines 43 and 44, to delete "subsection (2) of section 78 of the Road Traffic Act, 1933" and substitute "section 63".

Why substitute Section 63 for subsection (2) of Section 78 of the Road Traffic Act, 1933?

Section 78, subsection (2), of the Road Traffic Act, 1933, has now been replaced by Section 76 (4) of the new Road Traffic Bill which is in turn being replaced by the much wider provisions of Section 63 of this Bill. The latter section will apply to insurance policies in respect of any wrong whatsoever. It is the point to which the Deputy referred a moment ago.

Amendment agreed to.

I move amendment No. 29:

In page 19, line 55, to delete "responsibility" and substitute "fault".

Amendment agreed to.

I move amendment No. 30:

In page 19, after line 57, to insert the following subsection:

"Subsection (1) of this section shall apply between two parties notwithstanding that one of them is party to the two actions in different capacities."

Why is the Parliamentary Secretary tacking this on to the end of Section 37?

It is necessary there. We want to make it clear that even when a person is a party to two different capacities the section will still apply.

That is not clear here. How is he a party?

He might be a liquidator and he might also be a party in his own personal capacity.

A person might take an action in respect of the same set of circumstances in one case in his own personal capacity and, in another case, as a liquidator, or as a personal representative, or in some other capacity of that nature. We want to make it clear that the subsection will apply between two parties notwithstanding that one of them is a party to the action in two different capacities.

Amendment agreed to.

I move amendment No. 31:

In page 20, lines 8 and 9 and lines 10 and 11, to delete "shares of responsibility" and substitute "degrees of fault".

Amendment agreed to.

I move amendment No. 32:

In page 20, line 12, to delete "award" and substitute "give".

Amendment agreed to.

I move amendment No. 33:

In page 20, lines 14 and 15, to delete "share in the responsibility for the damage" and substitute "degree of fault".

Amendment agreed to.

I move amendment No. 34:

In page 21, line 31, to delete "responsibility" and substitute "fault".

Amendment agreed to.

I move amendment No. 35:

In page 21, line 34, to delete "insolvency of" and substitute "failure to obtain satisfaction of any judgment in whole or in part from".

What is the meaning of this amendment?

That arises by virtue of amendments we made in the Special Committee to Section 14 (3), 28 and 38 (2). The Special Committee amendments were made as a result of the observations of the Bar Council. The Council suggested that the plaintiff should be allowed to apply for secondary judgments only upon satisfying the court that he had taken reasonable steps to obtain satisfaction in whole or in part of his original judgment against one of the wrongdoers. The Council's suggestion was accepted by the Special Committee and the present amendments are consequential on the amendments made by the Committee to subsection (3) of Section 14, Section 28 and subsection (2) of Section 38.

Amendment agreed to.

I move amendment No. 36:

In page 21, to delete lines 51 to 57 and substitute the following section:

"Where it is made to appear to the court that—

(a) one wrongdoer in whose favour judgment is given is or may become a bankrupt, or

(b) the estate of one wrongdoer for the benefit of which judgment is given is or may be insolvent,

provision shall be made to ensure that such first-mentioned wrongdoer or such estate, as the case may be, shall be deprived of recovery to the extent that the wrongdoer or estate is liable to another party or in the aggregate to other parties as a result of the same accident, occurrence or transaction; and for that purpose judgment in favour of the wrongdoer or for the benefit of the estate shall, where necessary, be attached in whole or in part for the benefit of another party in whose favour judgment is given."

This amounts to the deletion of Section 39.

Yes. We are proposing to cure a defect in Section 39 of the Bill as it stands. This deals with a set of circumstances in which A, B and C are wrongdoers and B, who becomes a bankrupt, gets a judgment against A for £500 and C obtains judgment against B for £1,000. Under Section 39 as at present, B will not be able to execute his judgment against A unless he satisfies C's judgment in full. This, in practice, would mean that neither judgment could ever be enforced. A would gain an advantage from this but C would be worse off because of the inability of the Official Assignee to recover the £500 from A. B's assets, against which C would be claiming in bankruptcy, would be less to the extent of this £500 due from A. To remedy this defect, it is proposed to allow for the attachment of A's judgment for the benefit of C. Thus C will obtain £500 of his £1,000 from A and he can then claim in the bankruptcy for the remaining £500. Where A, B and C are motorcar drivers and the wrong is covered by insurance, no difficulty will arise because of the provisions of Section 63. In addition to bankruptcy cases the new section will also cover cases involving the insolvency of estates. Clear?

It should be clear really.

We all know really that we are allowing a procedure to go on this afternoon which does not become Dáil Éireann. It is not legislation.

Amendment agreed to.

I move amendment No. 37:

In page 22, line 9, to delete "responsibility" and substitute "fault."

Amendment agreed to.

I move amendment No. 38:

In page 22, lines 37 and 38, to delete "or any other enactment limiting the time within which proceedings may be brought" and substitute "or any other limitation enactment."

Amendment agreed to.

I move amendment No. 39:

In page 22, line 48, to delete "insolvency of" and substitute "failure to obtain satisfaction of any judgement in whole or in part from."

Why are you striking out the words "insolvency of"?

Because we are substituting the idea of failure to obtain satisfaction elsewhere in the Bill. As we are deleting "insolvency of" the words "such wrongdoer" are the proper words to use in line 53 and not the words "insolvent wrongdoer." On Special Committee, we agreed that insolvency in itself might not be enough and we decided to widen the provisions of the Bill where the point arose. There is more than just insolvency. It is not an insolvent wrongdoer that is now concerned but a wrongdoer who fails to satisfy the judgment.

Amendment agreed to.

I move amendment No. 40:

In page 22, line 53, to delete "the insolvent wrongdoer" and substitute "such wrongdoer."

Amendment agreed to.

I move amendment No. 41:

In page 23, between lines 18 and 19, to insert the following paragraph:

"(b) For the purposes of paragraph (a) of this subsection the liability of a vessel for damage shall mean the liability of those responsible for the proper navigation and management of the vessel."

This amendment will enact in Section 46 the effect of Section 9 (4) of the Maritime Conventions Act, 1911. It will also provide for the liability of owners, charterers and crew. The amendment will allow for the total repeal of Section 9 of the 1911 Act and this is being provided for in a later amendment.

Amendment agreed to.

I move amendment No. 42:

In page 23, line 22, before "another" to insert "that or" and after "board" to insert "either vessel".

Amendments Nos. 42 and 43 are cognate. These amendments propose to extend the limitation provisions of subsection (2) of Section 46 to damage or loss of life or personal injury irrespective of what vessel is concerned. Section 8 of the Maritime Conventions Act does not provide a limitation period in respect of damage caused to a wrongdoing vessel or injury sustained by a passenger on board such vessel but the language of the 1910 Brussels Convention seems to require the provision of a special period.

Amendment agreed to.

I move amendment No. 43:

In page 23, line 24, to delete "such other" and substitute "either".

Amendment agreed to.

I move amendment No. 44:

In page 23, line 53, to delete "or the salvage services in question were rendered" and substitute "or the salvage services or other expenses in question were rendered or incurred".

This is a drafting amendment to cover other expenses and to bring subsection (5) into line with subsection (4).

It is a bit more than a drafting amendment. It does bring in "other expenses".

It brings subsections (4) and (5) into line.

Amendment agreed to.

I move amendment No. 45:

In page 23, to delete lines 56 to 63.

We are amalgamating section 4 and section 47 and putting them in the Preliminary and General part.

So 47 goes out.

Amendment agreed to.

I move amendment No. 46:

In page 24, to delete lines 1 to 5.

That knocks out section 48.

Yes. I will explain why. The section is not necessary, because the scope of the new Act will follow the ordinary scope of the law of wrongs without express statement. Moreover, the section is fragmentary in that it leaves a number of matters uncovered. For instance, it does not cover a wrong occurring in a foreign aircraft; nor does it say what happens if there is a collision in foreign waters. These are all problems in what is known as the conflict of laws or private international law.

We cannot define the whole field of the law of tort from the territorial point of view. To do so would involve a separate Bill and consideration of a number of problems to which the answers are far from clear or logical. For instance, one of the views expressed in Dicey's Conflict of Laws, a monumental work on the subject, is that if a tort is committed inside a foreign aircraft over the high seas— not taking effect outside the aircraft— the English courts will apply English law to the situation. In the case of ships, however, the law of the flag will apply as a general rule. To complicate matters there is the rule in Machado v. Fontes. This was a case in 1897. X published a libel on A in Brazil. On the assumption that libel was a crime but not a tort in Brazil, the English Court of Appeal held that A could successfully sue X for libel in England.

I trust I have said enough to show that it would be better to delete Section 48. The section does not even attempt to tackle the whole problem of conflict. So it is wiser not to have it at all.

Amendment agreed to.

I move amendment No. 47:

In page 24, to delete line 33 and substitute the following subsection:—

"(2) Only one action for damages may be brought against the same person in respect of the death."

Amendments 47 and 50 are cognate.

These are drafting amendments designed to make it clear that the reference to one action is a reference to one action for damages against the same person. Where the death was caused by concurrent wrongs, there might be two actions as, for instance, where one of the wrongdoers was a hit-and-run driver whose identity was not discovered until after the action against the other wrongdoer. Moreover, it is desirable to make it clear that "action" refers to an action for damages and not to an action for contribution. The provision in the Fatal Injuries Act, which is followed in section 50 (2) of the Bill, was taken from the Fatal Accidents Act, 1846. However, in 1846, the law was that judgment against one joint tortfeasor discharged the others in respect of that tort; and there was no right to contribution between tortfeasors, whether they were joint or several tortfeasors.

It is not alone necessary to amend the relevant provision in respect of an ordinary fatal accident. We must also amend the corresponding provision in Part VI in respect of a fatal air accident. Hence, the need for amendment No. 50.

Amendment agreed to.

I move amendment No. 48:

In page 25, to delete lines 34 to 50.

Before we deal with that could I ask the Parliamentary Secretary one question in connection with Section 52? Is there any similar provision relating to non-fatal accidents to the provision in this section that deals with fatal accidents?

Is this on amendment No. 48?

It is on section 52. I am satisfied with the position in regard to non-fatal accidents. If I were not so satisfied I would certainly make same provision in the Bill in regard to them.

I do not want to interrupt the Parliamentary Secretary. We seem to be departing from procedure in this matter. We are dealing only with the amendments.

I am merely answering a question to facilitate the House.

I do not want the discussion widened.

That is perfectly all right with me. Let me assure Deputy Booth in passing that I am quite satisfied that the position in regard to non-fatal accidents is the same under existing law as what we are proposing to do in regard to fatal accidents.

Amendments Nos. 48 and 51 are cognate. It is proposed to replace Section 53 of the Bill and Section 116 of the new Road Traffic Bill by the new section contained in Amendment No. 51. The new section will deal comprehensively with the liability of the Minister for Finance in respect of damage caused by State-owned mechanically-propelled vehicles or such vehicles deemed to belong to the State. Section 53 of the Bill deals with fatal injuries and section 116 of the Road Traffic Bill with all types of injuries. It is not proposed to enlarge the liability of the State beyond that set out in the Road Traffic Bill. The present amendments are simply tidying-up amendments.

Amendment agreed to.

I move amendment No. 49:

In page 27, line 44, to delete "loss" and substitute "injury or mental distress".

This amendment is consequential on an amendment agreed to by the Special Committee. The expression now used in Section 49 (1) is "injury or mental distress" instead of "loss". It is necessary to use the same expression in subsection (1) (a) of the substituted Section 18 of the Air Navigation and Transport Act, 1936. The damages in an ordinary fatal accident or in a fatal air accident will be damages for the injury or mental distress suffered by the dependants.

Amendment agreed to.

I move amendment No. 50:

In page 28, to delete lines 20 and 21 and substitute the following paragraph:

"(b) only one action for damages may be brought in the State against the same person in respect of the death;".

Amendment No. 50 is cognate with No. 47.

Amendment agreed to.

I move amendment No. 51:

In page 30, before line 1, to insert the following section:

"(1) Where a wrong is committed by the use of a mechanically propelled vehicle belonging to the State, the Minister for Finance shall be liable to an action for damages in respect of damage resulting from the wrong in like manner as if the Minister for Finance were the owner of the vehicle, and the person using the vehicle shall, for the purposes of such liability, be deemed to be the servant of the Minister for Finance in so far as such person was acting in the course of his duty or employment.

(2) Proceedings may be brought against the Minister for Finance by virtue of this section without obtaining the fiat of the Attorney General.

(3) Nothing in this section shall operate to relieve any person from liability in respect of damage resulting from his own wrong.

(4) For the purposes of this section, a mechanically propelled vehicle not belonging to the State shall—

(a) while being used when it is under seizure by a person in the service of the State in the course of his duty or employment, or

(b) while being used by a member of the Garda Síochána or an officer of any Minister for the purpose of a test, removal or disposition of the vehicle pursuant to the Road Traffic Act, 1961, or any regulation thereunder,

be deemed to belong to the State.

(5) In this section—

‘mechanically propelled vehicle' means a vehicle intended or adapted for propulsion by mechanical means, including—

(a) a bicycle or tricycle, with an attachment for propelling it by mechanical power, whether or not the attachment is being used,

(b) a vehicle the means of propulsion of which is electrical or partly electrical and partly mechanical;

‘use' includes keeping or leaving stationary."

This is a new section setting out the liability of the Minister for Finance.

It is replacing a section of the recently passed Road Traffic Bill.

Amendment agreed to.

I move amendment No. 52:

In page 30, to delete lines 3 to 10 and insert the following subsection:—

"(2) In proceedings under this section, it shall be a defence for the road authority to prove that—

(a) they had given sufficient warning that the road was a danger to traffic, or

(b) they had taken reasonable precautions to secure that the road was not a danger to traffic, or

(c) they had not a reasonable opportunity to give such warning or take such precautions, or

(d) the damage resulted from a wrong committed by any person other than the road authority."

This amendment proposes to replace subsection (2) of section 62 by a new subsection which will provide for the case of damage caused by the wrong of a person other than the road authority. Paragraph (d) proposes this additional defence for a road authority. I have agreed this amendment with the Minister for Local Government. I think it is a reasonable amendment necessary to make it clear that the road authority will not be liable for damages to which they have not contributed.

Subsection (7) of Section 62 makes the whole thing futile. It says that the Section shall come into operation on such day, not earlier than the 1st day of April, 1967.

The Special Committee accepted this.

It may have.

We want to give local authorities time to get ready for their new liability.

You could say the 1st April, 1963 and then you could postpone it as long as you like after that.

This is the best I can do.

This is to get rid of a very objectionable bit of old law in which the road authority was not liable for not attending to roads. The British did this last year. The operational date is 1963.

This is an improvement. As it is, there is no liability. The operation of the section is postponed, admittedly, but we had to have regard to the very strong representations on behalf of local authorities to the effect that this would impose a very serious burden on them. In the light of these representations, the Government agreed to the postponement of this section for a period of six years in order to give local authorities time to prepare for its coming into operation.

You can give them time by saying not earlier than the 1st April, 1963. It could be postponed until 1997.

That seems to be outside the scope of the amendment.

I am discussing the section. This is supposed to be a great reform. It is a reform which is postponed to the 1st April, 1967.

It is a very valuable reform. It is a very considerable reform on the position as it was. The situation was there long enough and nobody did anything about it. The Special Committee agreed on this section.

If the local authorities put up the case that it would impose very heavy financial obligations on them it means that they are defrauding people of money they should be getting.

Amendment agreed to.

I move amendment No. 53:

In page 30, between lines 36 and 37 to insert the following section:—

"(1) Notwithstanding any other enactment or any rule of law, a claim for damages or contribution in respect of a wrong shall be provable in bankruptcy where the wrong out of which the liability to damages or the right to contribution arose was committed before the time of the bankruptcy.

(2) Where the damages or contribution have not been and cannot be otherwise liquidated or ascertained, the court may make such order as to it seems fit for the assessment of the damage or contribution, and the amount when so assessed shall be provable as if it were a debt due at the time of the bankruptcy.

(3) Where a claim for contribution or in respect of a judgement debt for contribution is provable in bankruptcy, no such proof shall be admitted except to the extent that the claimant has satisfied the debt or damages of the injured person, unless the injured person does not prove in respect of the wrong or debt."

Amendment No. 20 and amendment No. 53 go together. I explained the position when I was speaking on amendment No. 20. Amendment No. 53 deals with the question of proof of unliquidated damages in bankruptcy.

Amendment agreed to.

I move amendment No. 54:

In page 30, line 39, to delete "bankrupt or insolvent" and insert "a bankrupt", in lines 46 and 47 to delete "or insolvency", and in line 49, to delete "insolvency".

Amendment No. 54 is consequential on amendment No. 3.

Amendment agreed to.

I move amendment No. 55:

In page 30 to delete lines 51 to 54, and in page 31 to delete lines 1 to 8 and substitute the following subsection:

"(1) Where a sum of money has been lodged in court by the defendant in an action for a wrong in which the plaintiff is an infant, an application may be made to the judge by the plaintiff to decide whether that sum of money should be accepted or the action should go to trial and—

(a) if, on any such application, the judge decides that the action should go to trial, and

(b) an amount by way of damages is awarded to the plaintiff which does not exceed the sum so lodged,

then, notwithstanding any rule of court or practice to the contrary, the costs in the action shall be at the discretion of the judge."

Perhaps, it would be possible to discuss amendment No. 55 and amendment No. 55a together.

Section 64 was inserted in the Bill as a result of a discussion in the Special Committee. Subsequently Deputy Costello, who was a member of the Special Committee, at my suggestion, discussed this matter with the Attorney General and the present amendment is the result of that discussion. It is proposed to allow the infant plaintiff, if his advisers so wish, to apply to the judge to decide whether or not the sum lodged in court should be accepted. It is being made clear that an application may be made to the judge and that the judge will have to decide whether or not the action should go to trial. We want to avoid a situation where solicitors acting for a minor plaintiff will be encouraged to fight the action instead of setting it out of court.

I cannot accept Deputy McGilligan's amendment. It means that every action by an infant will have to be fought, unless it is discontinued altogether. A defendant may want to settle and this even though he has a good case. The infant who is not certain to succeed may also want to settle. Under the Deputy's amendment, money could not be lodged in court and the action would go to trial. The infant might lose the action completely or fail to beat the lodgment, in either of which events he would be at the loss of costs. If he failed completely he would lose everything and if he did not beat the lodgment he would lose the difference and the costs after the date of lodgment. The amendment prevents an infant accepting a lodgment when, in fact, he might want to do so. Indeed, the case made to me by Deputy Costello was the case where an infant might be anxious to accept the lodgment but where the judge would decide that the action should go to trial, with the result that the lodgment would not be beaten.

A further and an important aspect is that we must be fair to defendants. The Deputy's amendment takes away their right to lodge money in court where the plaintiff is 20 years of age but not where he is 21. The lodgment of money in court facilitates settlements and our object should be to encourage settlements. There is a problem at the moment where the plaintiff is an infant but my amendment solves that difficulty. The Deputy's solution is that we should do away completely with lodgments in actions brought by infants. This does not appear to me to be very desirable.

The situation in court at the moment is that in any case in which an infant is plaintiff every settlement must go before a judge. The procedure is that settlements may not be agreed where an infant is a plaintiff without a judge approving of it. I want to ensure that if we must go into court the action will be fought. The infant cannot lose the action on account of the money lodged in court being more than was given afterwards. He must get his costs. The measure of costs will go according to the statutes which regulate the scale. An infant might lose a case in any event under any of the amendments if negligence is admitted and the whole question is how much. Nobody can say except the judge. An offer may be put before it can be answered and there must be application to the judge and the judge will decide whether money will be accepted or not. I do not see why the infant should not be helped to the extent of getting the case fought. It is not a question of the infant's own costs. An infant may go into court against the lodgment and may not beat the lodgment but he has to pay the costs of the other side. I think that is objectionable. The infant must always go to court.

The infant therefore should be protected. A judge might say: "You are fighting the case. You cannot lose on costs. I will allow no lodgment."

I can only answer that the way I propose is a much better way of doing it. I am providing that the matter will be at the discretion of the judge. The point which was advanced by Deputy Costello at the Special Committee was that practitioners and those advising infants were placed in a very difficult and invidious position when they came to recommend acceptance of lodgments. It was in an endeavour to meet that point that section 64 is in the Bill. I think the section, as I propose to amend it, meets the point.

We must also be fair to defendants. If the plaintiff is an infant, we must have regard to his special position as an infant, but the defendant has rights, too. I suggest my proposal is a fair compromise between the special case of the infant and the rights of the defendant. At the same time, it meets the problem that was put to me in relation to difficulties encountered by practitioners in these sorts of cases.

My objection is that this only meets the case where money is lodged in court, the infant being the plaintiff. Then you go to trial. You say: "I have come before Judge A who is looking at the pleading and looking at the settlement of claim for damages and says: ‘Fight that case' and that it is not enough" Eventually, you come before Judge B or Judge C. These judges do not know what was in Judge A's mind. You may fight your case and lose it in the sense that the lodgment is not beaten but that a difficulty arises about costs.

Judge B will be informed by Counsel as to what happened. The case is fought because of the decision of Judge A. The application was made to Judge A and he decided it should be fought. That is a relevant factor for Judge B.

Judge A, for some peculiar reason, refuses to allow the settlement. Judge C might say: "I shall not allow any costs. He should have taken the lodgment." That means only the very odd case but the very disturbing case where there may be some doubt about negligence and a compromise offer is made. People may advise that you may be beaten entirely, that you had better take what is offered though it be a very small sum. It is a disturbing case to have to fight.

Take a shockingly bad case of negligence and suppose you are made fight the case. The only thing that emerges is that the costs in the case will be at the discretion of the judge who may not allow them to the plaintiff who has been made fight the case by the intransigence of a judge.

Under our procedure at the moment no infant's action can be settled without a judge hearing the matter. That being so, why not have him hear it properly and say: "As we have to go to court," because that is really the situation, "then the infant should not have his costs jeopardised in the action"? If he wins, he may be beaten on negligence. That will happen even in the case the amendment is attempting to meet.

I am taking the case where the infant has a good claim, a lodgment is made and a party advises the infant that it is a tricky thing and that they must go before a judge to get an offer, even on proof. Why not let them fight the whole thing? Infant cases are not so numerous. I have no figures in the matter but I have experience of the courts. There would not be a very high proportion where negligence actions, because this is really what it amounts to, are concerned.

The defendants are mainly assurance companies. Now they will always have to pay whatever the court will award. The only question is whether they might save their costs now and again.

I discussed, very informally of course, the amendment I was thinking of. I asked members of the Bench as well as members of the profession about it. I found nobody who disagreed with the point of view that is expressed in the amendment. I found it generally acclaimed.

The amendment does not in any way deal with the situation which arose and can still arise on a settlement, leaving aside the question of monies being lodged in court, with the defence, the question of settlement being entered into and brought before the court for approval. When the settlement is not accepted by the judge and the action has to go on the infant may lose or gets less than was on offer. I think I am correct in saying there was at least one case in which a judge refused to accept a settlement which came before him and that, when the case proceeded, the infant lost. Is there any way in which that kind of situation can be guarded against ?

I think that was a lodgment case.

It may have been a lodgment case but it can happen on a settlement without a lodgment.

It is not right to say that such cases are lodgment cases only. There are other cases.

This is not dealing with settlements.

It is dealing with lodgments.

Amendment agreed to.
Amendment No. 55a not moved.

Amendment No. 55b has been ruled out of order, as it seeks to impose a charge on the State.

I mentioned this at the Special Committee. It was quite clear that unless it was taken up by the Government it could not be proceeded with. There was a suggestion that the Government might be moved to take up a matter like this. The Special Committee did not have a vote on the matter. It is an old-time standard, really, that in this age, we still have what used to be called "Crown protection"—"State protection". The British got rid of this long ago. They got their Crown Proceedings Act, which is many years old.

We are still only faltering after the British.

We are hoping to do something.

Not earlier than the 1st April, 1967.

That sort of provision would not apply to it at all.

It is a simple thing. If the highways authority cannot deal with a claim for damages until 1967 and if we have to get a claim against Government Departments instead of local ones it will be 1987.

They have done it in Britain, but the Department of Posts and Telegraphs and the Defence Services are excluded.

That is not very valuable.

There are 35 pages in the British Act. In these two exclusions they have brought in in the most meticulous way everybody they could think of.

Except the most important.

Posts and Telegraphs?

And Defence?

The most important?

I move amendment No. 56:

In page 31 opposite "1 & 2 Geo. 5. c. 57." in column (3), to delete "subsections (1), (2) and (3) of section".

This amendment is consequential on amendment 41. In view of the provision contained in that amendment, section 9 (4) of the Maritime Conventions Act, 1911, may be repealed. This will allow the whole of section 9 to be repealed. I mentioned on Special Committee that I was anxious to get rid of as much of the 1911 Act as possible. All that now remains in that Act are sections 4, 5, 6 and 7. Sections 4, 6 and 7 are merchant shipping provisions not appropriate to this Bill. Section 5 is a court jurisdiction provision which I am considering in connection with the Courts (Supplemental Provisions) Bill.

Amendment agreed to.

I move amendment No. 57:

In page 32, to delete

"

No. 11 of 1933.

Road Traffic Act, 1933.

Section 171.

"

Amendment agreed to.

I move amendment No. 58:

In page 32, at the end of Part V of the Schedule, to insert the following:—

"

No. of 1961.

Road Traffic Act, 1961.

Subsection (4) of section 76 and sections 116 and 117.

"

These amendments are consequential. The Road Traffic Act, 1933, is being repealed in the new Road Traffic Bill. Section 76 (4) of that Bill is replaced by the wider provisions of section 63 of the present Civil Liability Bill. Section 116 of the Road Traffic Bill is being replaced by the new section provided for in amendment 51. Section 117 of the Road Traffic Bill, which provides for the survival after death of the liability of a person for negligent use of a mechanically propelled vehicle, will no longer be necessary in view of the provisions of Part II of the present Civil Liability Bill which deals with the survival of all actions on death. Section 117 of the Road Traffic Bill replaces Section 171 of the 1933 Road Traffic Act.

Is amendment No. 58 agreed to?

Wait a moment. This is also——

The same thing.

You are inserting this? This is a further repeal?

Hold your horses for a minute. This appears as No. blank of 1961.

The Bill has not been signed by the President yet. It has been passed by the Oireachtas and will be signed this week. Then we will insert the number.

You cannot do that.

It is permissible. I am assured by the very best authorities.

I have never heard it claimed in this House before that it was open to the Executive to insert words in a statute——

To the Dáil Office.

——or to anybody else.

The printing office it is.

I could do it if you gave me a pen. Anybody could do it if he were provided with the instruments but it is an utterly illusory proposal.

You did it yourself when you were in Government in the 1956 Fatal Injuries Bill. It is a technical thing. The proposed Road Traffic Act has not been given a number because it is not yet law.

It is astonishing that we can pass an amendment and when it comes to be enacted it appears in a form other than we have passed. I have never heard of anything like that before.

Yes, you did it yourself in 1956.

I have no recollection of it. I take it, Sir, that you will carefully scan this Bill to see that the amendments are correctly inserted.

Amendment agreed to.
Bill as amended received for final consideration.

Take the next stage next week.

Let us have the Fifth Stage now and let the Seanad get the Bill.

When are the Seanad meeting? Let us do it on Tuesday.

This is an important Bill.

Most important, but it is an agreed Bill.

No, it is not.

We will get it on Tuesday.

Fifth Stage ordered for Tuesday, 1st August, 1961.
Top
Share