I wish to avail of this opportunity to deal with a point which Deputy Booth raised on the Report Stage and with which I was not able to deal at that time. Section 50 of the Bill provides that in assessing damages in a fatal case account shall not be taken of any sum payable under any contract of insurance or any pension, gratuity or other like benefit payable under statute or otherwise in consequence of the death of the deceased. There is an exactly similar provision in Section 5 of the Fatal Injuries Act, 1956.
Committee on Finance. - Civil Liability Bill, 1960—Fifth Stage.
Question proposed: "That the Bill do now pass".
Surely it is Section 49?
The 1956 Act. It is repeated in Section 52 of this Bill. The law in regard to sums payable on death under insurance contracts was first enacted in the Fatal Accidents (Damages) Act, 1908. Prior to that Act, money received under any insurance policy had to be taken into account in assessing damages in a fatal case. This was the effect of the Fatal Accidents Act, 1846, according to a case decided by the British House of Lords in 1888. In the case of non-fatal injuries, on the other hand, sums payable under an accident insurance policy are not deducted or taken into account in assessing damages. The reason for this was given in a leading case in 1874. The insurance payment was held to be something completely collateral.
The provision in the 1956 Fatal Injuries Act which was a general provision put pensions, gratuities and similar benefits in the same position as insurance benefits in fatal cases. There were a number of precedents for this. Under Section 60 (1) of the Widows' and Orphans' Pensions Act, 1935, account was not to be taken of any pension or child's allowance payable under the Act when damages were being assessed under the Fatal Accidents Acts. There is a similar provision in regard to a children's allowance, not to be confused with a child's allowance in Section 14 (1) of the Children's Allowances Act, 1944. Also a widow's (contributory) pension and an orphan's (contributory) allowance are excluded from account under Section 34 (1) of the Social Welfare Act, 1952. It is interesting to note that the change made by Section 5 of our 1956 Act was subsequently followed in Britain in the Fatal Accidents Act, 1959, and in a similar Act in the North passed in the same year.
As in the case of insurance payments, the law as to pensions was different in fatal cases from what it was in non-fatal cases. There were in fact two leading cases on the matter in recent years. The first was Payne v. Railway Executive decided by the English Court of Appeal in 1951. In that case, the plaintiff, while serving in the British Navy, was seriously injured by the defendant's negligence. He was invalided out and awarded a disability pension. The defendant appealed on the ground that the value of the pension, assessed at the trial at £2,250 should be deducted from the award of £3,000. It was held that there should be no deduction, Lord Justice Cohen saying—
The accident in this case was not the causa causans of the receipt by the plaintiff of the disability pension, but the causa sine qua non. The causa causans was his service in the Royal Navy.
The principle followed in the case was the same as that laid down in the earlier case on insurance sums decided in 1874, to which I referred earlier. One of the appeal judges in Payne's Case pointed out that the pension was a factor that entered into a question of pay and that it was reasonable to presume that pay would be higher without pension rights. Payne's Case was applied in another English case reported last year. This was Judd v. Hammersmith Hospitals, where it was held that in assessing damages for loss of earnings no deduction should be made for a pension which becomes payable on a plaintiff's ceasing to work because of his injuries.
I am quite satisfied that there is no necessity to provide in this Bill that pensions are not to be taken into account in non-fatal cases as that is the existing law. If there were any doubt about it I should have no hesitation in inserting a specific provision——
In asking the House to insert a specific provision?
——in asking the House to agree to the insertion of a specific provision, but I do not think there is any necessity for such a provision. I considered this matter most carefully and I believe that the decided cases leave no room for doubt. Indeed it is natural that, as happened with Deputy Booth, the first question that springs to mind when one looks at Section 50 of this Bill is: How about non-fatal cases? The answer is that the ordinary law covers the matter adequately.
The motion is "That the Bill do now pass" and I should just like to say that it is very gratifying that this measure of law reform should now be passing through the House. The Bill was introduced by the Minister for Justice and has been guided through the Committee Stage by his Parliamentary Secretary. Of course, the Bill has a parentage which is not entirely represented by the present membership of the House.
This measure of law reform has been under consideration for a number of years and the work that has gone into it is not confined to the last year or two years. This proposal to amend the law affecting civil liability has been on the stocks for a great number of years. In fact I think that I and some of my colleagues can claim to have given impetus to this matter from time to time. I introduced a Private Member's Bill twice with the title "Civil Liability Bill" and I feel at least I have given the title to this measure. I certainly welcome the Bill as a major measure of law reform. I think it is a major measure of law reform. It is due in large measure to the thought and ideas of a very eminent jurist and I think acknowledgment has already been made of the work he has done. I can only hope that the work that has gone into the drafting of the Bill and the discussions that took place in Committee on the Bill have borne fruit.
Quite necessarily, a number of new terms and phrases are introduced in the Bill itself which may appear strange but I have little doubt that the Bill, when it comes to be construed and operated in the courts, will prove to be a valuable measure. I certainly welcome the passing of the Bill now.
I want to ask a question which occurs to me as a layman not versed, as some of my colleagues are, in the law of tort. This is a Bill which substantially eliminates from our legal system the old concept of contributory negligence, and substitutes therefor a new concept whereby if a person suffers damage as a result of negligence, the proportion of the loss sustained is commensurate with the degree of negligence shown by the parties to the suit.
I think of the considerable reform that was achieved by the city of London with the institution of the commercial court in 1906 or thereabouts, when a system of law based on the custom of the city of London was transferred to what was described as the commercial court. A very much simpler method of procedure was inaugurated in order to reduce the costs of litigation. It is true to say that, since the inauguration of the procedure of the commercial court in London, the merchants of London have been saved probably by this time millions of pounds in legal costs which they would have been required to meet had their litigation passed through the ordinary King's Bench or whatever it passed through before the commercial court was established.
Now with the disappearance of the old concept of contributory negligence in our law of tort and the reduction of these matters to a simple process of ascertaining the amount of the damage done and the proportion of responsibility resident in each of the parties to the suit, it appears to the simple and untutored mind that a very much abbreviated arbitration procedure might well be substituted for the procedures of litigation at present associated with such actions for tort.
It is natural that those married to the law and with a profound reverence for all its procedures should regard such a departure as being somewhat revolutionary. It is natural that those accustomed to the ordinary procedures associated with the law of tort under our legal system should feel that nothing short of what they would describe as the due process of law is adequate for the determination of such matters but to the untutored mind, it certainly prima facie appears that only two matters fall to be determined: first, the value of the damage done; and secondly, the measure of the parties' responsibilities; and that these matters could be very expeditiously disposed of by a stipendiary arbitrator or by an arbitrator chosen in the customary way with the consent of both parties and that thereby a very large sum might be saved in litigant's costs.
I mention this because I feel that with the emergence of this legislation, the next step becomes sooner or later inevitable. If it does, then the sooner we turn our mind to determining the most satisfactory machinery, the better. I imagine that some day, when we make up our mind to advance in that direction, the correct preliminary step would be to provide access for both parties to either procedure, leaving it open to either party to prefer the existing methods of litigation but admitting both parties, if they should elect for it, to the more or less elaborate procedure of an arbitration.
This Bill, as Deputy O'Higgins said, is the fruit of many years' consideration, like the Courts Establishment Bill and the Courts (Supplemental Provisions) Bill, which have been in draft for quite a while and have now been brought before the House. I am not at all sure they received fully adequate discussion. We are now in the first week of August and this Bill is merely one of many which the House has sought to rush through in the course of the past three or four weeks.
I deplore that method of moving legislation through the House and I want to avail of this occasion to say that where legislation of this kind is ready prepared, the Government ought to be able to bring it before Dáil Éireann in that period of the legislative year when the House is not preoccupied with the essential financial business that has to be disposed of before the end of July. These are matters, of course, which may not be fully comprehensible to the public at large but they ought to be matters of great concern to the Deputies of this House.
No greater disaster could overtake Parliament than that it should acquire the reputation in the minds of the people of being no more than a rubber stamp for the wishes of the Executive. If we are to avoid that indictment, it is the duty of the Government to ensure that the legislation they desire to have enacted will be brought before the House at a time when it is possible for the House to give it due consideration.
It is illusory to imagine that this Bill has received the detailed consideration to which it was entitled. We have not had time to do that. The same is true of more than one Bill for which the Parliamentary Secretary has to be responsible. I do not blame the Parliamentary Secretary. On the contary I compliment him on the skill with which he has had recourse to his brief. He has read out to the House learned discourses on various aspects of this legislation which, I have no doubt, will be quoted from the Official Reports hereafter as evidence of his exceptional and outstanding ability. That is a perfectly legitimate procedure but I cannot help admiring the bland —"self-satisfaction" is a word I use with no desire to be rude—exterior with which he breathes forth these carefully-prepared briefs and the strange prescience with which he looks forward to the debates in the printed records of Dáil Éireann as monuments of his extraordinary erudition.
This is a useful Bill not only for itself but for the possibilities that ensue therefrom. I congratulate the Parliamentary Secretary on having adhered so strictly to his brief. It read beautifully. The reference to causa causans I thought beautifully impressive.
And the causa sine qua non—Lord Justice Cohen's phrase.
These mark the very highlight of the erudition to which he treated the House. I look forward eagerly to that period after the general election when I hope to be as amply furnished with as copious a brief when I speak from the benches from which the Parliamentary Secretary is at present privileged to speak. Indeed, I hope I shall make half as good use of the brief.
I hope it will not sound ungracious of me if I do not share Deputy Dillon's last expressed wish. First of all, I should like to say that I am fully conscious of the fact that Deputy O'Higgins was very anxious for a long time to have this Bill. I should like to pay a tribute to him for the persistence with which he advocated in this House that the Bill should be introduced without delay. I want to go a bit further than that.
When the Bill was referred to a Special Committee, Deputy O'Higgins, and indeed all the members of that Special Committee, were more than helpful in their attitude. Dealing with the Bill in that Special Committee, I received complete co-operation and assistance from all the members. I am very grateful for that. I know all the members of that Special Committee were as anxious as I was to secure the best possible Bill. I have the report of the Special Committee before me. I said, as the Committee was concluding its business, that I was very grateful indeed to the members of the Committee for the way in which they dealt with the Bill and that the object of us all had been to get as good a Bill as possible.
In reply to the criticism of the Leader of the Opposition that he feels this Bill did not get adequate discussion may I say that though that might appear to be so it is not in fact so. We went through this Bill meticulously and carefully in the Special Committee. I feel that special care was brought to bear on it—indeed, a care which is not brought to bear on every Bill which comes before this House. I think most of the members of the Opposition who participated in the discussion will share my view that never at any stage was the Bill being rushed or adequate care and attention not given to it. We prepared and issued with the Bill a full and detailed explanatory memorandum.
And we had Glanville Williams to whom we might turn.
Yes. We had a first-class reference book in Dr. Glanville Williams's book.
Where the Bill was first printed.
I already admitted and acknowledged in this House our debt to Dr. Glanville Williams. However, the Bill now before us is not his original Bill. It is a more comprehensive Bill. With the background of Dr. Williams's excellent textbook, with the fully detailed explanatory memorandum, with the fact that the Bill was referred to a Special Committee where it received most careful and assiduous attention from the members—and I want to pay a tribute to the distinguished practitioners on that Special Committee who gave of their very best in that Committee—I think it cannot be suggested that the Bill has been rushed or carelessly dealt with by the House.
As regards the criticism by the Leader of the Opposition of my expositions of certain aspects of the law, may I say that my motives were not quite as base as they might appear to the Leader of the Opposition to be.
"Criticism" is hardly the word.
If I have given out here what would appear to be pompous treatises on the law, it was with a very specific purpose. The House will realise that we in this country unfortunately have a dearth of good textbooks. Where possible, I have availed of either the explanatory memorandum, the explanatory sidenotes in a Bill or the Official Reports to try to bridge that gap and to place on record for students and others the principles which inspired the various changes in the law. I think that was an objective worth while striving after. In so far as I did appear to elaborate unnecessarily the principles behind what we were doing, there was a reason for doing so.
The Leader of the Opposition also mentioned a hope that this Bill would encourage resort to arbitration. I would hope that the Bill will very definitely lead to a reduction in the amount of litigation in this sphere of the law. The experience in other jurisdictions where apportionment has been introduced has been that there is a lessening of litigation and a considerable increase in settlements. I earnestly hope that the same result will eventuate here.
The position about arbitration is straightforward. We have the Arbitration Act of 1954 under the provisions of which it is open to the parties to an action to have recourse to arbitration, although I want to say that from time to time it has been suggested that arbitration can be just as expensive as litigation. Indeed, a former Taoiseach, Deputy Costello, I think, is on record in this House to that effect. Whether that is so or not, the simple answer to Deputy Dillon's remarks is that it is open to litigants to resort to arbitration in any case. We have a modern Arbitration Act in the 1954 Act and its provisions are there for those who wish to avail themselves of them.
I have nothing more to say on the Bill except, again, to express my gratitude to and appreciation of the members of the House who took such a constructive and helpful interest in the Bill. I think I should also reiterate my gratitude to Dr. Glanville Williams who has been unsparing in his assistance to us throughout the preparation of the Bill and its passage through the Dáil. Finally, I want to say that I feel that all of us in the House have honestly done our best with the Bill and I hope that, when it goes through the Seanad and is enacted, we will have given the people and the practitioners a valuable and useful piece of legislation.
Question put and agreed to.