Civil Liability (Amendment) Bill, 1964 —Second and Subsequent Stages.

I move that the Bill be now read a Second Time.

The Bill is designed to amend and extend the Civil Liability Act, 1961. It has three main objects. First, it proposes to abolish the need for certain special findings by the jury or judge in a contributory negligence case; secondly, it proposes to continue as a permanent part of the law the present temporary provision in the 1961 Act enabling compensation for mental distress to be awarded in fatal injuries cases; thirdly, it proposes to state in statutory form the rule that, in assessing damages in a non-fatal case, account is not to be taken of any sum payable under any contract of insurance or of any pension, gratuity or other like benefit payable in consequence of the injury.

Paragraph (c) of subsection (1) of section 40 of the 1961 Act provides that the jury, or the judge, if there is no jury, in a contributory negligence case must find and record whose negligence, want of care, etc. contributed to whose or what damage and in what respects. This requirement was based on similar requirements in certain of the Canadian provinces and, particularly, in British Columbia. However, the provision in our 1961 Act has been found somewhat difficult to operate; and it imposes on the jury what is alleged to be an unfair and unnecessary task. It has also been argued that it is a provision that would allow the findings of a jury or judge to be upset if the law were not strictly followed. Having carefully considered the matter, I am satisfied that the paragraph in question should be repealed. The Bill provides for this in section 6 and the Schedule. The jury or judge will, of course, still have to find and record the total damages of the plaintiff and then apportion fault between the plaintiff and defendant. This is because of paragraphs (a) and (b) of subsection (1) of section 40, which will remain part of the law.

Subsection (1) of section 49 of the 1961 Act provides that damages in a fatal injuries case shall include such amounts, if any, as the judge considers reasonable compensation for mental distress resulting from the death to each of the dependants of the deceased. The total of the amounts awarded must not in any case exceed one thousand pounds. The award of damages for mental distress in a fatal accident case, though common under Scots and French law, is a completely new concept in our law. For this reason, it was felt at the time that some experience should be gained here of the operation of the provision allowing for what the Scots callsolatium. Accordingly, paragraph (d) of subsection (1) of section 49 of the 1961 Act enacts that the provision in question shall have effect only in respect of deaths occuring within three years after the passing of the Act, that is, only in respect of a death occurring on or before 17th August next. Twenty-three fatal injuries actions under the 1961 Act have been set down for hearing in the High Court to date. In nine cases trials were held, and in the remaining fourteen settlements were reached and ruled. Fifty-four actions were ruled at an earlier stage. In the Circuit Court there have been two actions. I am satisfied from the enquiries I have made that the provision allowing for compensation for mental distress is operating satisfactorily, and I recommend that it should become a permanent part of our law. The Bill, therefore, proposes that paragraph (d) of subsection (1) of section 49 of the 1961 Act be repealed.

Section 50 of the 1961 Act provides that, in assessing damages in a fatal case, account is not to be taken of any sum payable on the death under any contract of insurance, or of any pension, gratuity or other like benefit payable in consequence of the death. Exclusion of moneys payable under insurance contracts had been part of the law since the Fatal Accidents Act of 1908, and pensions were added in the Fatal Injuries Act of 1956.

When section 50 of the 1961 Act was being enacted, I was advised that the law in fatal cases was in fact already the law in non-fatal cases. However, a recent majority decision of the Court of Appeal in England has created uncertainty as to the law there in non-fatal cases involving certain types of pension. The distinction that has now, for the first time, been drawn in England is difficult to understand. The majority of the English Court in fact overruled a previous decision of the same court. To remove any doubt in the matter, section 2 of the Bill proposes to state clearly that our law in non-fatal cases is the same as in fatal cases.

The remaining proposals in the Bill are to be found in sections 3, 4, and 5. These sections are, in the main, clarifying sections and cover matters that have been drawn to my attention since the 1961 Act was enacted.

Section 3 proposes to add a new subsection to section 27 of the 1961 Act. The object of the new subsection is to ensure that, where an alleged concurrent wrongdoer, sued by an injured person, wishes to obtain contribution from a fellow wrongdoer, he may make a claim or serve a third-party notice, notwithstanding that he denies or does not admit that he is a wrongdoer. Furthermore, the making of the claim or the serving of the notice is not to be taken as implying any admission of liability to the injured person or otherwise.

Section 27 of the Civil Liability Act, 1961, provides that a concurrent wrongdoer who is sued for damages or contribution and who wishes to make a claim for contribution must, if the person from whom he proposes to claim is already a party to the action, make his claim in the same action. If that person is not a party to the action, the claimant for contribution must serve a third-party notice on him. The object of section 27 was to ensure that, where possible, claims for contribution would be made and determined in the injured person's action, and that all matters arising out of a particular set of circumstances would be disposed of at one and the same time. The Supreme Court had already held inLee v. Dublin Corporation (1956) I.R. p. 250 that section 4 of the Tortfeasors Act, 1951, which provided for apportionment of damages amongst tortfeasors inter se, did not allow for third-party procedure to settle matters of contribution in the injured person's action, if the injured person had not sued all the tortfeasors.

It has been suggested to me that there is now a danger that a judge would hold that, under section 27 of the 1961 Act, a person wishing to avail himself of third-party procedure might be forced into the position of admitting that he was a wrongdoer. While I personally think that this could not be read into section 27, particularly having regard to what was said in the Supreme Court decision to which I have referred and also having regard to the present court rules as to third-party procedure, I am nonetheless satisfied that it would be better to close the door against such an interpretation. Apart from anything else, this will avoid the need for a person, sued as a wrongdoer, to go to the Supreme Court so as to have clarified his right to serve a third-party notice on, or to make a claim against, a fellow wrongdoer.

Section 4 of the Bill proposes to amend subsection (2) of section 35 of the 1961 Act so as to make it clear that in an action for loss ofconsortium or for loss of services, a plaintiff will, for negligence purposes, be identified with his wife or servant, where the wife or servant was acting in the course of her or his employment with the plaintiff. Under paragraph (a) of subsection (1) of section 35, a plaintiff is responsible for the acts of a person for whom he is, in the particular circumstances, vicariously liable. The common example of vicarious liability is that of master and servant. The master is responsible for the negligence of his servant: and the servant's negligence is imputed to the master, where the master claims in respect of damage caused to him by the negligence of a third person and the servant. In a loss of consortium or loss of services case, the husband or master was not, under the law prior to 1961, identified with his wife or servant, except where his wife or servant was acting in the course of her or his employment.

One of the objects of section 35 was to state this law in statutory form. However, the view has been advanced that the law has in fact been amended so as to allow an employer to recover in full for the loss of the services of his employee, even though the employee, while acting as employee, contributed to the accident. This was not, of course, the intention. Section 4 of the Bill will clarify the position. Naturally, where the employee is not acting in the course of his employment, the employer is not identified with him and may recover in full. The defendant may then obtain contribution from the employee.

By reason of section 5 of the Bill, what is known as "the principle of cross-liabilities" will apply to every claim against an insurance company. It is proposed to add a new subsection to section 36 of the 1961 Act in order to attach liability to an insurance company which, because of set-off, does not pay any portion of a claim. The new subsection will be the corollary of subsection (4) of section 36.

The best way I can explain this rather technical matter is by an example. Suppose that A and B are involved in an accident, and that A's damages are assessed at £1,000 and B's at £800, fault being apportioned at fifty per cent each. A gets judgment for £500 and B gets judgment for £400, thus making A entitled to £100 after set-off of B's claim. The sum of £100 is paid to A by B's insurance company. B, under section 36 (4) of the 1961 Act, is entitled to recover from his insurance company the sum of £400 deducted by the company in settling A's claim. A should have a similar right against his own insurance company in respect of B's claim for £400. However, subsection (4) of section 36 does not in terms give him this right. This was not the intention, the subsection being designed to ensure that the two insurance companies would, between them, meet their aggregate liability for £900 in full.

What is now proposed is to make this perfectly clear, and thus to apply the principle of cross-liabilities to both B's case and A's case. This principle has long been enshrined in marine insurance policies, and is now written into all policies in subsection (3) of section 36 of the 1961 Act. It is necessary to ensure that, if A becomes bankrupt, his insurance company will not be able to enrich itself to the extent of a debt owed to him by B. This is already the position where B becomes bankrupt. Under section 62 of the 1961 Act, moneys payable to an insured under a policy of insurance are, where the insured becomes bankrupt, applicable only to discharging in full all valid claims against the insured in respect of the wrong concerned. This protects the injured person where the wrongdoer becomes a bankrupt. Section 36 of the Act protects the creditors of the bankrupt, although the section applies, of course, in cases other than bankruptcy.

I commend this Bill to the House, and ask that it be given a Second Reading.

I do not think there is anything of consequence arising from this Bill, in the sense that there is nothing which I think any Deputies would be inclined to oppose. It is regrettable that on a Bill of this sort, which is highly technical in parts, the Minister did not issue an explanatory memorandum. I concede, without further ado, that he did cover the ground very fully in the statement he made and has explained fully the provisions of the Bill and the effect it is designed to have. However, even as a lawyer, I should prefer the assistance of an explanatory memorandum when reading the Bill and I should imagine that many non-lawyer Deputies feel the same way about it.

As the Minister pointed out, the principal effects which this Bill is destined to have are to relieve the juries, if juries are sitting, or the judge, from having to make special findings in negligence cases. It also proposes to continue the section of the 1961 Act which enables compensation to be paid in the case of death where no loss arising out of dependency is claimed or can be substantiated.

There is just one point which I should like to suggest in that connection. Possibly it is a matter that would arise for review later. I refer to the maximum of £1,000 which is provided for. I see the difficulty—I am sure the Minister does also—which must confront a jury or a judge, sitting without a jury, in endeavouring to measure in some way the loss a person sustains as the result of the death of a person—a child, for example—where no question of dependency arises. Probably, the truth of the matter is that none of us can value that or measure it in money values.

It certainly was a very great improvement in the law when, in the 1961 Act, compensation was allowed even where no question of dependency arose. Prior to that, I think the position was that all one might recover would be the funeral expenses and expenses attendant on the burial. Now, compensation is allowed but there is a maximum. In this kind of situation, once the principle of compensation is established—and, I think, rightly established—any maximum which is imposed should err, if it errs at all, on the generous side rather than on the restrictive side.

I do not think there is anything else I want to say on the Bill except with regard to section 2. Perhaps the Minister would make it clear whether or not the provisions there apply to payments made under the workmen's compensation code, as distinct from payments made under an ordinary contract of insurance.

The answer to the question posed by Deputy O'Higgins in regard to section 2 is: "No, they do not." In regard to the question of the limit of the amount which should be awarded forsolatium, I agree that this is a debatable matter. As I mentioned in my opening remarks, solatium is something which is new to our law. I think most Deputies would agree that we were right in approaching it with some caution when we were drafting the 1961 Act. At that time, we knew that the figure which had been settled upon in Scotland was £750 and, in the light of that, we settled on a maximum of £1,000.

I think the time that has elapsed since the passing of the 1961 Act has established that the relevant provision is working fairly well. Whilst I agree that there may be a case for reviewing later on the figure of £1,000, I think it is all right for the present. We will continue to keep an eye on the situation and if at any time it appears that there is a case for increasing the figure we can do so fairly simply by a small amending Act.

Question put and agreed to.
Agreed to take remaining Stages today.
Bill put through Committee, reported without amendment, received for final consideration and passed.