Seanad Éireann debate -
Wednesday, 15 Jul 1931

Vol. 14 No. 28

Railway Fires (Amendment) Bill, 1931—Fifth Stage.

Question proposed: "That the Bill do now pass."

Mr. Wilson

I want to ask the House to throw out this Bill. The reason I ask the House to adopt this attitude is because I find that, under the Bill, the position of a farmer living near a railway line, and suffering damage, will be made worse than under existing law. I do not think we ought to pass this Bill, especially in view of the fact that railway fires will soon be a thing of the past when the Drumm Battery comes along. We certainly should not pass a Bill that increases the liability of farmers residing in the vicinity of railways. The Minister, when he was speaking on this Bill in this House, did not take Senators into his confidence. He said he was merely changing the amount because of the altered value of money. He increased the liability of the railway company, he said, from £100 to £200. The fact of the matter is that he was also altering the law in accordance, as he pointed out, with cases decided under the Act which is already in operation. These cases were decided against the opinion of those who passed the Bill through the English Parliament.

Senator Brown gave the history of the Bill, and he said that the intention of the legislature was defeated by the results accruing from the operation of the Act. I do not think that the intention of the legislature in England has anything to do with the matter. What we really ought to consider is the question of equity. What exactly is the position? A railway company has an engine running near a farmer's house and a spark from the engine sets fire to the house. Plainly in that case the damage is caused by the railway company and the company should be made liable. The Minister pointed out that the railway company is a statutory undertaking and is obliged to run trains. Under the old Act their liability was to the extent of £100 where no negligence was shown. I maintain that though the company may be a statutory undertaking they are obliged to run only one train each way per day.

The fact is that they run twenty and probably more trains per day, but by law they are bound to run only one train. They are absolved, according to the Minister, from all liability for damage done by their engines to a man's property, because they have that statutory obligation. I think in ordinary equity they should be made carry their liabilities to a greater extent.

Under the existing law a farmer can get up to £100 where the damage comes to that figure. Under this Bill if a fire takes place, and the damage exceeds £200 the farmer will get nothing. He would have to prove negligence and, of course, that is practically impossible. In those circumstances the farmer would be much better off if this Bill were never passed. Under the existing law the railway company is liable to the extent of £100 no matter how great the extent of the fire. If the damage is £1,000 the railway company is liable for £100 without negligence being proved. Under this Bill a farmer whose property is damaged to the extent of over £200 gets nothing.

Minister for Industry and Commerce (Mr. McGilligan)

That is not so.

Mr. Wilson

He gets nothing unless he proves negligence, and that is practically impossible.

Mr. McGilligan

That is not the position.

Mr. Wilson

Under this Bill the liability of the railway company is increased to £200, without negligence being proved, in the case of a small fire which results in damage up to £200.

Mr. McGilligan

That is right.

Mr. Wilson

But a fire may occur on the property of a small farmer and the damage might be £201 and, therefore, he would get nothing at all.

Mr. McGilligan

Quite wrong. He gets £200 if he claims it.

Mr. Wilson

That was the amendment. The amendment set out that if the farmer claims £200 he gets it.

Mr. McGilligan

I am talking about the Bill.

Mr. Wilson

The Bill mentions £200 or under.

Mr. McGilligan

No.

Mr. Wilson

He may supply particulars of the damage to the extent of £200 and the railway company may come along and say that the damage is much greater. It is really a question of equity. I hold that the Minister did not take the House into his confidence. He said that we were changing the figure of £100 to £200 on account of the altered value of money, but he never said he was changing the law. He then mentioned that the law was changed because of the cases that had been tried and the results in these cases were not the results which the legislature intended. He was anxious to change the law in order that the results to be achieved under this Bill would be what he appears to think was in the minds of the legislature in England when the first Act was passed. We are not concerned with that at all. In this case I think the argument is really on the side of the farmer getting compensation for the full amount of damage caused. The railway company is really the aggressor and the farmer should get in full the amount of damage he has suffered.

Mr. Robinson

I agree with Senator Wilson's suggestion that the Seanad should throw out the Bill. I have heard it called a thimble-rigging Bill. It came to the Oireachtas with its heart, so to speak, on its sleeve and it gave everybody the impression— and I believe it was deliberately intended to give the impression—that it was really for the benefit of the farmers living adjacent to railway lines. During the course of a previous debate on the Bill here the Minister said that the law was to be exactly the same as before except for the difference in the sum of money set out. He said: "The Bill puts you in the same position as before with the difference of the sum." That is the interpretation that anybody reading the Bill would place upon it. If one looks into the Bill more carefully, however, it will be seen that the wording is rather peculiar. It gives the impression that if a man has property damaged to the extent of anything over £200 he has no claim at all.

Last week the Minister butted into the debate here at least sixteen times in order to try to tie up every knot Senators endeavoured to loosen in order to see what sort of cat was in the bag. Senator Brown said that he agreed with Senator Comyn as to the actual effect of the present Bill. He said:

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.

We do not know whether Senator Brown or the Minister is right. Obviously there is some cat in the bag, and we are anxious to see what sort of a cat it is. I am sure there is hardly a Senator who is not prepared to admit that the effect of the Bill will be to make it practically impossible for a man honestly to make a claim if the damage exceeds £200. The position of the man who suffers damage is worse than under the existing law. What is behind all this? The Government must have some reason for bringing in this Bill. Is it that the ex-Unionist element is so important to the present Government, probably by way of subscriptions to Party funds, that this miserable little Bill is introduced? The obvious thing to do with this measure is to throw it out.

Mr. O'Farrell

It would be interesting to have the Minister's final word in regard to this measure. This Bill is identical with an Act passed in Great Britain, with the exception of Section 3 (c), in which the Minister changes the wording to "particulars of damage." The effect of the British Act is that no matter what damage a railway company imposed by reason of sparks from an engine the farmer can claim up to £200 and get that amount, if that amount of damage has been done. No matter what the amount of the damage, even if it goes up to £2,000, he can get £200 without proving negligence. Under this Bill, if the particulars of damage are shown by anybody to be more than £200, no claim can be met and no compensation can be secured except negligence is proved, and that is a virtual impossibility. Forty trains may pass and it may be difficult to say which train has done the damage. One could not possibly prove negligence. The Minister is emphatic that, notwithstanding all this, the Bill will operate the same as in Britain and the person who suffers the damage need only show that the extent of it was £200 and he wins his claim.

Supposing the Minister is right, then the Bill is no different to the British Bill and the position is exactly as it was and as the amendment sought to make it. The amount, of course, has been raised from £100 to £200. Senator Brown, who is a very eminent K.C., is most emphatic that that is not the position. I think the contention of the lawyers is that the Bill does not say who is to show that the particulars of damage do not exceed £200. If the damage is £500 the farmer shows only £200. It is open to the railway company to prove that the damage is in excess of £200 and that the claim does not come within the four walls of this Bill. If the lawyers are right—if Senator Brown and Senator Comyn are right—then the farmer has no redress if he suffers damage to the extent of over £200. The point about being able to get damages provided he can prove negligence may be set aside. Proving negligence is a difficult procedure.

If the Minister is right in his opposition to that point of view, then in my opinion this Bill does not effect what he is really seeking, and the new wording is worthless. We are in an exceedingly funny position in regard to this Bill and it will be interesting to hear the Minister's last words in relation to it. Senator Brown argued that the insurance companies would not be relieved of their responsibilities and that farmers who have more than £200 worth of property, including their houses, should insure. I believe there will be comparatively few cases where there will be damage of over £200 and, because of that, the Bill is not really very important. I am concerned only with the principle underlying it. As Senator Wilson pointed out, if the Drumm Battery is a success in our generation, this Bill will not be required at all. I think we should have a clear definition of what the Bill is intended to do.

Mr. O'Doherty

I think the objectionable features of the Bill have been dealt with pretty fully on this and on the previous stage and I do not intend to deal with them now. I would like to draw attention to an interchange that occurred at our last sitting between Senator Wilson and the Minister. Senator Wilson asked: "For whose benefit has this Bill been introduced?" He said he believed the farmers would be better off if the Bill were never passed. The Minister replied: "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." Senator Wilson has accommodated the Minister in that respect now and I think the House should give him a mandate to go back to the Dáil and ask them to reject the Bill.

Cathaoirleach

The Senator has not moved an amendment. He has merely stated his intention to vote against the Bill.

Sir Walter Nugent

I think there is a misapprehension with regard to this Bill. It certainly is not a railway Bill. If you do not pass this Bill what will the position be? The position will be that instead of the farmer being able to get redress to the extent of £200 he will only be able to get redress to the extent of £100. If I were acting in this matter as a railway director or as a shareholder I would certainly vote against the Bill; but I am not going to do so because the Minister has introduced the measure. In my opinion this measure will really be of benefit to the farmers. If the Seanad throws out the Bill, in future a farmer can claim redress up to only £100. If we pass this Bill, he will be able to claim up to £200, and that is the effect of the measure so far as I can see.

Mr. Douglas

I felt tempted to make a suggestion similar to that made by Senator O'Doherty; I was going to say that as the Fianna Fáil Party and the Farmers' representatives—I take it that Senator Wilson represents the Farmers' Party—advocate that it would be better for the Seanad to reject the Bill, we should take them at their word and let the existing law stand, leaving the amount which a farmer can claim at £100. I am sure that the railway companies would have no objection. I rise because there is a sort of general assumption that the statements made on this Bill by Senator Brown who, unfortunately, is ill, and by Senator Comyn who, unfortunately, is away, were in entire agreement. My reading of their statements is that they were not in entire agreement. I did not consider their interpretation of the Bill was the same. I am not a lawyer and I do not pose as being able to interpret those matters. As a matter of fact, I do not think it would matter twopence what my interpretation would be, because lawyers and judges will finally interpret the Act altogether irrespective of what may be said here.

As far as I see it, the position is that if a man has property value for more than £200, he ought to insure it or otherwise he will not be safe. If a man insures his property for £1,000, and if the existing Act is in operation, and his claim for £1,000 is substantiated, the railway company under the old Act will pay £100 and the insurance company £900, although the farmer would be paying premiums on an insurance policy for £1,000. The insurance company would thereby benefit. As far as this Bill is concerned, the figure is altered to £200. If a man is insured for £1,000, and his claim is substantiated for that amount, the railway company will pay nothing, but the insurance company will pay the full £1,000. I believe that is just and right. While I would be very glad to believe with Senator Robinson that this Bill will bring large sums of money to Cumann na nGaedheal for election purposes, I have my doubts.

There seems to be one point about which there is some doubt, and I would be glad if the Minister would give us some definite information. If a man has property to the value of £1,000, and is foolish enough not to insure, and if a fire takes place, causing damage in excess of £200, he is quite entitled to claim for £200, but there is no use in claiming for more because he is not insured. The only issue is, can he legally if he is not insured for a larger sum, claim for £200 even though, in his opinion, the total damage might be more? I think he can, and I believe that that is Senator Brown's view, although I have no right to quote him. I understood in a conversation I had with the Senator, that his opinion was that if a man were not insured, and a fire damaged his property he was entitled to claim from the railway company £200 if this Bill were passed. If he is insured he must claim for the full amount from the insurance company, and if it is proved that the amount of the claim exceeds £200 the insurance company has to pay. If it is below £200 the railway company is liable. I think the only issue is the question as to whether, if the damage is more than £200, and the property is not insured, the man can claim £200.

Mr. Connolly

I would like to point out to Senator Douglas that if Fianna Fáil Senators vote for the rejection of this Bill, they will only adopt that attitude after trying honestly to amend the Bill in order to make it what, in their opinion, it ought to be. There seems to be a great deal of talking at cross-purposes about this measure. The Bill indicates that if the particulars of damage exceed £200 the person cannot make a claim. He can, however, proceed under the common law. As Senator O'Farrell has explained, it is practically impossible to prove negligence. If the Minister declares that the Bill will not debar a person from making a claim of £200, even though the damage may be £250, then we will know much better where we are. As the Bill is worded, it seems that if the particulars of damage exceed £200 there is nothing for the claimant to do but proceed by way of common law. Senator Brown declared last week: "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." That seems to be in direct conflict with the Minister's statement. If the damage for which a claimant will have to give particulars exceeds £200 he has to do one of two things; he has either to make an understatement of claim, and put in a claim that is not true, and stand by that in the hope of getting £200, or he will be forced to take action under the common law. I think the Minister should make some effort to clear up the position.

Mr. McGilligan

I said on the last occasion that the only purpose of this Bill was to increase the sum of money. The Bill achieves that and only that. I say that again after a week's communion with two or three lawyers. That is absolutely clear. I asked these lawyers if they could suggest any amendments to me that would meet the objections of the Seanad. I was told that there was no amendment required: that the situation was absolutely clear. As compared with the 1905 Act, the only change made is that the £100 is raised to £200. That is the beginning and the end of it. I should just like to qualify that in one small respect. Under the 1905 Act a person could start his action and need not mention any sum, but when the case came for trial he had to claim either for something under £100 or for something over £100. If he claimed for something under £100, then the action was tried according to the provisions laid down in the Act. If he claimed for something over £100, the action had to be pursued under the common law. In the earlier process a claimant, when he issued his writ, had to mention the sum claimed. That estopped the making of any later claim. When the change here proposed is made a claimant will be estopped after claim is made. There is the small difference as between the time of making claim and date of issue of the writ. Some Senators have brought in the point of the amount of damages actually suffered. The argument used was that under the old Act a man who might suffer damage, say, to the amount of £1,000, could claim £100 under the 1905 Act, and then go against the railway company for the remaining £900. That is not so. It was said further that if a man sustained damage to the extent of £500 he could not put in particulars showing that the damage had amounted to £100 or £200 in order to get that. There is, however, a clear case under the 1905 Act of a claim made for £3,000. Particulars were put in showing that damages to the extent of £3,000 had been done. When the case came on for hearing the people making the claim said, "We claim £100." They got £100, although figures, affidavits, and so on were on the table showing that damages to an amount of £3,000 had been done.

I asked the lawyers I have referred to what would be the repercussions of this Bill on the 1905 Act. I was told that when this Bill is read with the Principal Act it is clear that a person is entitled to claim under it £200 no matter what the actual damage done may be. Under the old Act and under this Bill, a claimant might go to a certain point with an application coming within this legislation, and then decide to change tactics—to drop the action under this type of legislation and proceed according to the ordinary law. But it never was and is not allowable for a claimant to claim £100 under the 1905 Act or £200 under this Bill in a case where damage to the extent of £1,000 had been done, and then go against the railway company for the remaining £900 under the old Act and the remaining £800 under this Bill. In such circumstances he would be estopped by the plea of "res-judicatae," by the legal bar that the claim had already been decided. There is one exception typified by the case of a man who had a valuable horse injured on land adjoining the railway line. He entered a claim under the old Act for something under £100. Before the case came on for hearing the horse died. He then claimed that a new situation had arisen, withdrew his action under the old Act, paying costs to date, and proceeded against the railway company for, say, £1,500. That was possible under the old legislation, and is allowed under this Bill.

With regard to the words in paragraph (c) of Section 3, "show that such damage," I also took opinion. I am told that the word "show" there, ordinarily interpreted, calls for a statement of amount, not proof of amount, that it means the same thing as the word "state," which it has been suggested should be inserted instead of the word "show." That is the situation as it has been explained to me by lawyers who have read not only the original Act, but this Bill, and all the wisdom spoken on it in the Seanad. If the Seanad decides to reject the Bill, I will accept its decision. I will go to the Dáil and say that the Seanad do not want the Bill, and ask for agreement with the Seanad. That will be so much the better for the railway companies, but it will mean that farmers will be left in a worse position than if the Bill were accepted.

Mr. Douglas

If it is in order to make a verbal alteration on this stage of the Bill, I would move that the word "show" be deleted and the word "state" inserted. The Minister says that he has no objection to the alteration.

Mr. McGilligan

No.

Mr. Wilson

In view of the Minister's statement my opposition to the Bill has considerably dwindled.

Cathaoirleach

I think that on this stage of the Bill a mere verbal change could be made.

Mr. McGilligan

I consulted a draftsman on that point. He states that, while he is not a judge of the rules of the House, in his opinion the proposed alteration is a verbal change, and will not affect the sense of the paragraph.

Mr. Douglas

The change, I think, is a mere verbal one. If made it would, I think, help to clarify the paragraph.

Cathaoirleach

In my opinion an amendment on the lines indicated would mean more than a verbal change. As it would considerably alter the sense of the paragraph, I cannot accept it. A verbal change is merely the correction of a misprint or something of that kind.

Mr. O'Farrell

I think that the Minister's statement should remove all objection to the Bill.

Question—"That the Bill do now pass"—put and agreed to.