Seanad Éireann debate -
Wednesday, 8 Jul 1931

Vol. 14 No. 27

Public Business. - Railway Fires (Amendment) Bill, 1931—Fourth Stage.

Question proposed: That the Bill be received for final consideration.

Mr. Comyn

There are two amendments in my name to this Bill. The first amendment reads:—

"Section 3. To delete paragraph (c)."

The second amendment is as follows—

"Section 3. To delete in lines 32-33 the words ‘particulars of damage so given to such railway company show that such damage,' and to substitute therefor the words ‘claim for damage in the action.'"

Both those amendments have the same purpose—to secure that in the case of a fire caused by sparks from a railway engine which does damage to a greater amount than £200 the person injured shall at least be able to recover the sum of £200. Senator Johnson and others said on the last occasion the Bill was before the House that I was probably too meticulous, and that the Bill did not need amendment. I submit that the Bill does need amendment. Section 3 of the Bill, which I propose to amend, states:—

Section 3 of the Principal Act shall not apply in respect of any action for damage by fire occurring after the passing of this Act.

I should state that the object of the Railway Fires Act of 1905 was to allow compensation for damage caused to agricultural land or agricultural crops arising from fires caused by sparks or cinders emitted by locomotive engines. Under the common law, a man whose crops were damaged by fires caused by a railway engine could bring an action, provided he could prove that the railway company was negligent. The object of the Act of 1905 was to allow a farmer to get damages to the amount of £100 without proving negligence. Under that Act, he could only get damages without proving negligence to the amount of £100, no matter what the amount of his loss was. The Act of 1905 did not apply in the case of any action for damage by fire brought against any railway company unless the notice of claim was sent to the railway company within seven days from the occurrence of the damage and particulars of the damage within fourteen days. If a farmer had a rick of hay valued £500, then within seven days he would have to send to the railway company the notice of claim, and within fourteen days he would have to send particulars of the damage. If he did those two things, he was entitled to sue for £100, and to succeed without proof of negligence. Here is how he was limited in the section:—

"This section"—that was the section giving him compensation—"shall not apply in the case of any action for damage unless the claim for damage in the action does not exceed £100."

Take the case of a man whose rick of hay was burned by a spark from a railway engine. Under the Act of 1905, he would have to send in notice of his claim and then particulars of the damage. He would have to claim the sum of £100 and no more, and without proof of negligence he could get up to £100 in damages. I am sorry that Senator Barrington is not here at the moment. It was in connection with an action arising under this Railway Fires Act that I first met Senator Barrington and learned to appreciate his splendour as a witness. Not alone was his evidence good, but it was given in a style which I have never forgotten. I think the action was in respect of cinders which fell from an engine on the famous West Clare railway. The fire-box was out of order, but the evidence was good.

Under the Act of 1905, whatever the amount of your damage, you were entitled to £100 injury to crops, without proving negligence. The first impression one gets from the new Bill is that it increases that amount to £200. Section 2 of the Bill says: "Sub-section (3) of Section 1 of the Principal Act shall have effect in relation to actions for damage caused by fires occurring after the passing of this Act as if the words ‘two hundred pounds' were substituted for the words ‘one hundred pounds' in that sub-section." The Bill applies the limit of £200 where £100 was the limit before. Section 3 of the Bill provides that the notice of the occurrence must be sent in writing to the railway company within seven days, and that particulars of the damage shall be sent within twenty-one days. The times there are different from those in the original Act, but otherwise the provisions are the same. The third requirement under this Bill is, as given in paragraph (c): "The particulars of damage so given to such railway company show that such damage does not exceed the sum of two hundred pounds." If, for instance, a rick of hay was destroyed, the person affected would not come within the terms of the Bill if the particulars showed the damage to exceed £200, whereas under the old Act, no matter what the amount of the damage, he could claim up to £100. This Act deprives every person who has sustained damage exceeding £200 of the benefits of the Act of 1905. That is absolutely clear on the construction of the Bill, and I do not rely on my own judgment in that. I submitted this question to other lawyers for whose judgment I have respect. Under this Bill, if the particulars show the damage to exceed £200, the claimant is outside the limitation contained here.

Minister for Industry and Commerce (Mr. McGilligan)

In this Bill.

Mr. Comyn

The Minister must have had some intention other than that which we understood he had when he introduced this measure. I have put down the two amendments which I have read. The first amendment is to delete sub-section (c) because it is unnecessary, seeing that Section 2 limits the amount recoverable to £200.

Cathaoirleach

If you delete paragraph (c) you cannot move the other amendment.

Mr. Comyn

I might find it easier to carry the second amendment. Perhaps the Minister would accept it?

Mr. McGilligan

I would withdraw the Bill rather than accept these amendments.

Mr. Comyn

I would prefer, then, to move the second amendment.

Amendment 1, by leave, withdraw.

Mr. Comyn

Under my second amendment the farmer would be left generally in the same position in which he was under the Act of 1905, but the amount he could claim would be increased to £200. I understood that that was the intention of the Bill, but from the enlightenment that the Minister has given us to-day it does not appear to be. It appears that the intention of the Bill is that if the damage is less than £200 the farmer shall have the benefit of the Act, but if it is greater he shall not have the benefit of it. That is a retrograde step, and is quite wrong in my opinion. It is unnecessary, because railway engines have been so much improved that damage by fire from them is not as great or as frequent now as it used to be. If a man whose crops are damaged to the extent of £20, or up to £200, is to get compensation, I think there is no justice in depriving of compensation a man whose rick of hay, value £500, is destroyed by fire. That is the effect of this Bill as it stands.

Mr. McGilligan

Not at all.

Mr. Comyn

Then the Minister and I are at cross-purposes. If he says that that is not the effect of the Bill, then I am at loss to understand his line of reasoning. I submit, after full consideration, that that is the effect of the Bill. Under my amendment it will be quite clear that the farmer will be entitled at least to £200, even though his damage exceeds £200.

Mr. O'Doherty

I second the amendment.

Sir Walter Nugent

The position, as far as I understand, is that a person whose property is injured in this way can proceed at common law against a railway company, irrespective of the amount of the damage, provided that he shows it was due to negligence. Paragraph (c) of this section, which the Senator seeks to after, provides that in the case of damage not exceeding £200 the person claiming will be relieved of the obligation of proving that the damage was caused by negligence. If that is right, I am sure the Senator will agree that it is far better to let paragraph (c) remain. In my opinion, it will be much better for the railway company and for the community at large. I hope the Minister will not accept the amendment.

Colonel Moore

I have considered this measure carefully, and it would seem to me that, under its provisions, if a person proves that his hay-stack or oat-stack, or whatever it may be, is damaged to the extent of £220, he cannot get any relief at all.

Mr. McGilligan

Under this Act, but he has all his other remedies.

Mr. Brown

He has his remedies through the common law.

Mr. McGilligan

He is left every other remedy, and, by proving negligence, he can get up to £20,000.

Colonel Moore

We are not dealing with that particular question. We are dealing with a case where it is not necessary to prove negligence. In this instance, it is not necessary to prove negligence on the part of the railway company. I quite agree with the Minister so far as cases are concerned in which it is necessary to prove negligence. My point is that if a man's rick of hay, value for £220, is lost, he cannot get any compensation. If the valuers say that it is value for £190, the man may get the £190. That appears to me to be a most astounding proposition.

Mrs. Costello

We must draw the line somewhere.

Colonel Moore

If the amount of damage reaches £250 or £300, the man can still claim for £200. No one suggests that a man would claim £500, or even £1,000, when the damage would not actually reach that figure. I have given my interpretation of this measure, and I really think that it is a most astonishing piece of legislation.

Mr. Wilson

Why should a man who suffers loss be made prove negligence at all?

Mr. Brown

Because it is not a nuisance.

Mr. Wilson

Who is the aggressor? A man has a risk of hay, a railway train passes by, and a spark from the engine sets the hay alight. Surely the railway company is the aggressor.

Mr. McGilligan

Why? The railway company must run trains according to the statute.

Mr. Wilson

But they must not burn a man's hay.

Mr. McGilligan

The legislature imposes an obligation on the railway company to run trains.

Mr. Wilson

Yes, but they also impose the obligation that railway trains must not do damage; the railway companies are obliged to run their trains carefully.

Mr. McGilligan

That is what the law does not do.

Mr. Wilson

Then the law is wrong and it should be remedied. In the case of a railway train destroying property, it would be a very difficult thing for any farmer to prove that the railway company was negligent. In my opinion, the change which Senator Comyn seeks to make will give some semblance of fair play. Even if a man's claim is £1,000, it will give him £200 without proving negligence.

Mr. Comyn

That is the idea.

Mr. Wilson

The Bill does not do that. If the Minister contends that it does, then we will be in the same position as before.

Mr. McGilligan

The Bill puts you in the same position as before with the difference of the sum.

Mr. Robinson

If this Bill were worded in a somewhat similar fashion to the original Act there would be no difficulty. The present Bill, to my mind, works out like this: If a man's property is damaged to a greater extent than £200, and if he proves that the extent of the damage is fully £500, he cannot even make a claim for the £200. Under the original Act a man could bring forward his statement of damage and claim £100. If a man loses property to the extent of more than £200, and if he truthfully states the extent of the damage, he loses the whole lot under this measure.

Mr. McGilligan

He does not lose the whole lot. The situation before the Railway Fires (Amendment) Bill was introduced was that if a person trespassed or committed a nuisance and caused damage, his liability was absolute and there need be no negligence proved. Where the law imposed an obligation upon a company or a corporation to do certain acts, if, in the performance of those acts, damage was done, the onus of proving the damage was not placed on the company or corporation but upon the person who suffered the damage. That was the law. The railway company is compulsorily obliged by a statute to run trains. If hay or anything of that sort was damaged by a passing train, even to the extent of £5, negligence had to be proved against the railway company.

It was considered that, in the case of small men, men with property worth about £100-not men with a big amount of property who might suffer £100 of damage—if there was a claim of £100 or less, then the onus would again be shifted and the railway company's liability would become absolute. That was the law as we got it. Money having altered in value, we intend to change the limit from £100 to £200. Under this Bill the situation is: Will the man say that his damage is £200 or that it exceeds that amount? If it is more than £200, then he has the ordinary remedies of the law. In the ordinary process of trying to establish a claim he will have to prove negligence. If the damage is less than £200, then without proving negligence he gets £200. That is the position we want.

Mr. Johnson

I think this Bill is going to place the farmer who may suffer loss in a worse position than he is to-day. I have read through this proposed legislation and, reading it as a layman, I think the point made by Senator Comyn is a correct one. I think I am fortified in that attitude by the amending British Act, of which the present Bill is almost a copy. The amending British Act was passed in 1923 and it provides exactly what Senator Comyn would like to provide. Section 2 of that Act sets out:—

The Principal Act shall not apply in the case of any action for damage by fire brought against any railway company unless—

(1) Notice in writing of the fire having occurred and of intention to claim in respect thereof shall have been sent to the said railway company within seven days of the occurrence of the damage and

(2) Particulars in writing of the damage showing the amount of the claim in money not exceeding the said sum of £200 shall have been sent to the said railway company within twenty-one days of the occurrence of the damage.

We are asked to modify that and to make a change of considerable moment. The Minister has defended that change. There is an essential difference and it would seem to me that, if we pass this Bill as it stands, we are depriving the farmer even of the security he had on amounts up to £100. He will be deprived of the right he holds at the present moment if we pass this Bill in its present form.

The farmer is going to be damnified by this legislation unless it is amended in the direction that Senators desire. Unfortunately, that seems to be the intention of the Minister, judging by what he said here to-day. If we desire the Minister's intentions to be put into effect, then let the Bill go through unamended, but if we desire to keep the farmer in the position he has occupied up to the present in respect of damage through fire then we ought to accept the amendment submitted by Senator Comyn or some other amendment drafted on similar lines.

Mr. Barrington

As my name has been dragged into this question by my friend Senator Comyn, perhaps I will be allowed to say a few words. I regret that I must vote against Senator Comyn's amendment. Like the Senator, I have had lifelong experience of the working of these Acts and of the claims that are made under them. I might say that fraudulent and bogus claims are perpetually being made under them. I cannot follow Senator Comyn or Senator Johnson through the intricacies of legal argument. The amendment seems to me to be devised with the intention of making claims easier. I could, if I so wished, delay the Seanad a very long time giving instances of the types of claim that are made. Anything that would facilitate the making of these claims would, in my opinion, be very injurious indeed. I have known dozens of cases where claims were made without the slightest reference to justice or to facts. If we do anything to facilitate the submission of cases of this sort we will be doing something that is very wrong.

Mr. O'Farrell

I am one of those who would be the very last to try to impose any unreasonable commitment on the railway company. I suggest, however, that if we pass this Bill as it stands, it will be looked upon more or less as a joke from a legislative point of view. I would like to know why the Minister, having copied the British Act almost line for line, departed from it in this one particular. It is really very significant that he did so. The reference made by Senator Barrington have nothing to do with the principle involved here. The Senator talks about facilitating bogus claims. Surely you are more likely to have a lot of bogus claims where the amount is less than £200 than you would have in cases where the damage is in excess of £200?

Let us take it that a spark from a railway engine sets fire to a farmer's haggard, and possibly his house, and damage is done to the extent of £500. It is most unlikely that in order to establish a claim the farmer will be able to prove negligence on the part of the railway company. Undoubtedly, most of the fires are not due to negligence at all; they cannot be avoided. The farmer knows that if he proceeds with his claim and has to prove negligence, he cannot succeed. He certainly will like to avail of the relief which will be given him in this Bill and he will claim up to the amount of £200. In order to bring himself within the Bill, according to what the Minister said, he has to tell a deliberate lie. He has to say that the damage is only £200, and certainly is not in excess of that amount. If he goes into court he has to swear that the damage is only £200 when, in fact, it may be £500.

Is it suggested that we should make that a condition upon a man who is seeking compensation? The farmer may say that the damage is only £200. It is up to the railway company to prove, through their witnesses who have examined the scene of the fire, that the damage is in excess of £200 and, if their case succeeds, no compensation is payable. Is not the position a preposterous one?

Mr. McGilligan

No. The wording of the section is "...unless... the particulars of damage so given... does not exceed the sum of two hundred pounds..."

Mr. O'Farrell

The man must show particulars of the damage. If it can be shown that the damage is in excess of £200 I think any lawyer can prove that the man is not entitled to compensation.

Mr. McGilligan

"...the particulars... so given."

Mr. O'Farrell

Is the Minister suggesting that the particulars so given shall only include part of the damage?

Mr. McGilligan

If the man likes, certainly.

Mr. O'Farrell

Is not that a terrible quibble? What is the object of creating a legislative position of that kind? Why does not the Minister accept the amendment and leave the Bill the same as the British Act?

Mr. McGilligan

That is not the British Act.

Mr. O'Farrell

Senator Johnson has quoted the wording of the British Act. If the Minister accepts the British Act it will also be acceptable to the House —at least that section of the House that desires to have this Bill amended.

Mr. McGilligan

The reason we changed was because of certain cases decided under the British Act.

Mr. O'Farrell

Does the Minister suggest that the British Act is defective?

Mr. McGilligan

It is ambiguous. The law is stabilised.

Mr. O'Farrell

This Bill is not ambiguous, and to the extent that it is not ambiguous it will have the effect of making us look ridiculous. It will really mean that damage to the extent of £1,000 can be done and a man can get only £200 compensation if he is not prepared to prove negligence. If there is damage done to the extent of £200 he can get that amount without proving negligence. If the Minister wants the Oireachtas to enact that sort of legislation he is welcome; but I certainly will strongly object to being a party to enacting any such preposterous legislation.

Mr. Brown

I hope the Seanad will reject this amendment. I agree with the Minister in his statement of the law. I agree also with Senator Comyn as to the actual effect of the present Bill. Under this Bill, if a farmer sustains damage to the extent of over £200, he will be in a worse position than he would have been if he sustained damage to the extent of £100 under the existing Act.

Mr. Douglas

Provided he is not insured.

Mr. Brown

I will come to the insurance in a moment. The history of the thing is that originally there was no action against a railway company which had power to run trains, except one was able to prove negligence. The question of negligence in a case like that was a very difficult one, because it was held that if the railway company had taken all reasonable care in having their engines constructed on the latest improved lines of constructing engines, so as not to emit sparks, and if the company's servants had not been guilty of negligence, then they were free. It was really practically impossible to succeed in a case of negligence against the railway company, particularly in the matter of sparks. For that reason the 1905 Act was passed. It was passed for the purpose of giving relief to small farmers—it applied only in the case of agricultural land and produce—largely on the ground that they were people who did not insure. It practically made the railway company the insurers to the extent of £100.

It was never intended by that legislation that it should insure up to £100 in the case of people who suffered damage to a larger extent than £100. They really ought to insure for themselves. Owing to the way the 1905 Act was drafted, it did not carry out that idea. It did make the railway company insure up to £100, although the actual damage might have been greater. The insured farmer could always claim £100, waiving the rest of the damage. He would get the money from the railway company as a sort of insurance. The Act was worked badly in one sense. It wants amendment in the matter of amount. Under the present Bill the amount is being raised to £200. It would not be right to give a man the benefit of this Act where the damage was more than £200, because the man who has agricultural produce value for more than £200 is a reasonably sensible citizen, and he ought to insure.

If you adopt Senator Comyn's amendment you will be relieving the insurance company because the man with £1,000 worth of hay is not going to trust to this Bill; he is going to insure his hay. This will relieve the insurance company of the first £200 of the insurance money; it will have to be paid out of the coffers of the railway company. That will be the effect of the amendment in cases where the damage is over £200. In small cases it is right that compensation should be paid without any question of negligence. The difference in the value of money has brought about the increase to £200. It is quite right that this Bill should have been introduced in order to relieve the small farmer with a claim for compensation up to £200, but not beyond it. It ought not to apply to the case of a sensible farmer who will do his own insurance and who will not have a claim against the railway company.

Mr. Comyn

This is rather an interesting legal discussion. Senators are at a disadvantage in that they have no books before them. If Senators had the Act of 1905 before them they would at once see that the arguments I have put forward are entirely correct. Indeed, Senator Brown agrees with me. He says that my construction of the 1905 Act is the correct construction. He says my construction of the Bill, as it stands, is the correct construction. Therefore, on the law now there is no difference of opinion. It then comes down to a question of policy. Senator Brown says the 1905 Act does mean what I say it means, but the legislature never intended that. Did you ever hear such an expression as that from an eminent, distinguished lawyer ? He says they never intended what is the plain meaning of the Act of Parliament. Of course they intended it.

I want to give Senators the reason why that Act was passed. It is extremely difficult to prove negligence in a case of damage caused by sparks from railway engines. It is extremely expensive to the plaintiff and extremely inconvenient, and expensive, too, to the railway company. I have done it twice, although there was a most distinguished witness against me. He had to produce his fireboxes and they were burned out. The fire-box of an engine is a contrivance that goes into the funnel. It is made of iron. Through the effects of fire it is corroded. Sometimes a bar is worn away and a rather large spark gets through that and, in a high wind, it is carried sometimes fifty, sixty or seventy yards. That happened on one or two occasions to the fireboxes in the engines on the West Clare Railway, with which Senator Barrington and I are so well acquainted. That was the reason why the Act of 1905 was passed.

The intention of that Act is very clearly expressed in the Act itself. The intention was to give up to £100 compensation, whatever the amount of the loss. When I looked at this Bill first I considered that it was a generous thing for the Minister to do. I believed that he was going to increase the amount to £200 on account of the depreciation in the value of money. On the last day I thought that the Minister had, perhaps, overlooked the little matter that I have referred to, but apparently he has not. Apparently he now wants to compel farmers at terrific expense to prove negligence before they can get the sum of £200. As Senator Colonel Moore pointed out, if the loss amounts to £220, the farmer gets no compensation at all. The farmers are very honest people, and if they suffer damage to the extent of £220 and send in particulars of a claim to, say, Senator Barrington, Senator Sir Walter Nugent or Senator Bagwell, they will be told they are not entitled to any compensation at all.

I may say that there is a tremendous lot of knowledge about this matter in this Assembly, and we have not heard certain Senators dealing with it yet. Certain Senators have a tremendous lot of information about this little point. We would, I am sure, like to hear from them about it. If a farmer is dishonest and declares that the amount of damage is only £199, Senator Barrington will at once investigate the hay-rick, and he will come to the conclusion that the damage is at least £250. He will be of opinion that the hay was of very good quality; he probably might know the land where it was grown—magnificent land; in fact the Senator might say that he actually helped to reclaim the land. He might actually declare it to be portion of the famous slobland on the Fergus. I can rather visualise the evidence the Senator would give. The farmer would give all the particulars relating to his claim, but if the amount exceeded £200 he would get no compensation under this measure.

I will ask Senators to consider this matter very carefully. We have in this House three or four of the ablest men in the country, and we would certainly like to hear them upon this particular point. The discovery is not mine. It was my friend Senator Robinson who, when reading the Bill, found out this blemish. I hope Senators will express their opinions about this whole matter, and I trust they will accept the amendment I have brought forward.

Mr. Wilson

For whose benefit has this Bill been introduced ? I believe the farmers will be better off if the Bill were never passed.

Mr. McGilligan

If the Seanad accepts that position now I am quite satisfied. The Senator ought to move an amendment to that effect and I will accept it, if it is passed by the House.

Mr. Wilson

If this Bill is passed the farmers will be in a worse position than they are at the present moment. We ought not to pass the Bill, because by doing so we will place the farmers in a worse position. There has been talk about a big farmer living near a railway station getting his property insured. He will pay a very high insurance premium if his property is within fifty yards of the railway line. I do not see why the farmer should be mulcted, and there is no reason why the Minister should bring forward this Bill to make the general position of farmers worse.

Mr. McGilligan

If the Senator can assure me that that is the attitude of the Seanad with regard to this measure I will be prepared to ask the Dáil to accept the defeat of the Bill.

Mr. Jameson

I have no doubt that all the railway directors and railway shareholders would be delighted to see this Bill thrown out. Personally, if I were a railway director I would be delighted to see the Bill thrown out. My belief is that if you throw it out you will injure the farmers.

Amendment put.

The Seanad divided: Tá, 16; Níl, 27.

Tá

• Sir Edward Bellingham.
• Michael Comyn, K.C.
• Joseph Connolly,
• William Cummins.
• Thomas Linehan.
• Seán E. MacEllin.
• Colonel Moore.
• Joseph O'Doherty.
• Michael Duffy.
• Thomas Farren.
• Thomas Foran.
• Thomas Johnson.
• John T. O'Farrell.
• M. F. O'Hanlon.
• Séumas Robinson.
• Richard Wilson.

Níl

• John Bagwell.
• William Barrington.
• Sir Edward Coey Bigger.
• Samuel L. Brown, K.C.
• Miss Kathleen Browne.
• R. A. Butler.
• Mrs. Costello.
• John C. Counihan.
• The Countess of Desart.
• James G. Douglas.
• Sir Thomas Grattan Esmonde.
• Michael Fanning.
• Major-General Sir William Hickie.
• P. J. Hooper.
• Right Hon. Andrew Jameson.
• Sir John Keane.
• Cornelius Kennedy.
• The McGillycuddy of the Reeks.
• James MacKean.
• John MacLoughlin.
• James Moran.
• Sir Walter Nugent.
• Joseph O'Connor.
• Bernard O'Rourke.
• Dr. William O'Sullivan.
• Michael Staines.
• Thomas Toal.

Tellers:—Tá, Senators Comyn and Johnson; Níl, Senators Sir Walter Nugent and Brown.

Amendment declared lost.

Main question put and agreed to.

Fourth Stage concluded.

Fifth Stage fixed for Wednesday, 15th July, 1931.