The conclusion of Section 1, which is merely a definition section, defines the meaning of "district planning authority". I wonder if the Minister means to follow what was done in connection with the 1923 Damage to Property Act. Is this to be the only Bill to be introduced to deal with the question of war damage to property during the present emergency? We had a Damage to Property Bill which became an Act in 1923. Subsequently, we had the Dublin Reconstruction (Emergency Provisions) Bill, 1924, and it dealt with a number of other matters such as town planning, changing of sites, giving of leases, the question of leases and leaseholders and the question of licences to publicans. This Bill, if we take the definition section, includes not only compensation for property losses but also a measure of town planning. Does the Minister contemplate that this will be the only legislation or does he contemplate this Bill being followed by a Bill similar to the Dublin Reconstruction Bill of 1924 but not confined to Dublin?
Public Business. - Neutrality (War Damage to Property) Bill, 1941—Committee.
I had not thought of another Bill, such as Senator Hayes has in mind, as being likely to follow this Bill.
We may take it, then, that we are dealing with the whole problem in this Bill?
Yes.
A number of matters are not dealt with in this Bill which it was found absolutely necessary to deal with in 1924, such as the question of leases and licences. Does that mean that amendments can be moved to this Bill dealing with these matters? If this is to be the only Bill, it must deal not only with town planning but with every other question arising out of these occurrences. Has the Minister not had an investigation made as to the position of licensees, for instance?
There are also the questions of the licence fees being demanded from owners of publichouses where publichouses no longer exist, telephone charges and questions of that kind.
The question of the payment of rates was raised in the Dáil, and also similar matters and, so far as I can recall, my answer there was that the question of the payment of rates was a matter between the local authority and the property owner, and that is a matter that could be, and probably would be, regulated, in a separate measure, by the Minister for Local Government and Public Health. I understand that it is not the practice of the Dublin Corporation, in any case, to assess, for rates, buildings that have been destroyed or, practically, destroyed, and that that practice would be followed in this case. At any rate, so I am informed.
Does that apply to other parts of Ireland?
Yes, I think so. As to the question of the payment of duties and licence fees in connection with publichouses, certainly, if I had any control in the matter of the collection of licence fees, I would instruct the Revenue authorities not to look for licence fees in the case of houses that no longer existed.
Is the Minister satisfied that he has that power?
No.
I am not satisfied, either. I think the position is that there is a condition to the effect that the licence must be used and retained, and it might be necessary to have legislation to deal with such a matter. If legislation is necessary, then, presumably, this is the place for it.
Not necessarily. I think that, probably, the question of licence fees would be regarded as not being proper to this Bill.
It would appear, then, that we are in the position that another Bill will be necessary?
May be necessary.
Yes, may be necessary, but that is the position?
It may be necessary.
I move amendment No. 1:—
In sub-section (1), to add a new paragraph as follows:—
(h) by action taken to combat or repel an enemy attack.
The object of this amendment is to apply the Bill to persons whose property has been destroyed by the action of our own Forces in endeavouring, as the amendment says, to combat or repel an enemy attack. For instance, property might be injured or destroyed by shrapnel falling as a result of antiaircraft fire, or a shell might fall, or a friendly aircraft—one of our own, for instance—might crash on property and destroy it. It seems to me that damage of that kind is not provided for under the Bill. I understand that it has been provided under the English Act, and it seems to me that it is only equitable that damage of that kind should be provided for here. Of course, damage to property caused by action of that kind is incidental, but it could easily happen that damage of that kind may be caused by our own Forces in their use of defensive measures, just as much as damage may be caused by offensive measures on the part of an enemy.
This is a matter in connection with which I found a certain amount of difficulty. Sub-section (2) of Section 2 says that
"notwithstanding anything contained in the foregoing sub-section of this section, this Act shall only apply to injuries to property which occur while the State is not engaged in any war."
Now, it seems to me that the interpretation of that point, as to whether the State is or is not engaged in a war, might be a matter of extreme importance. Senator Sir John Keane's amendment refers to action taken to combat or repel an enemy attack, but for the life of me I do not know whether a warship outside a neutral country, or an aircraft over a neutral country, can be regarded as an enemy craft or not, or whether bombing or shelling by such warships or aircraft is to be regarded as an enemy attack or not. It might be that the Government might find themselves in a difficulty with regard to that matter. I am not referring to anything that has happened in the past, but to what might happen in the future, and it seems to me that the Government might have a difficulty in deciding that point. It is clear that this State cannot go to war without the consent of the Oireachtas, but it is not quite clear whether, if we were attacked, we might or might not be at war without the consent of the Oireachtas. It seems to me that that question, of when we are at war, would require some definition or should be met in some way before this Bill becomes law. If that matter were dealt with, I think that Senator Sir John Keane's point might be got over at the same time. We know that damage took place here; we have not official information as to whether or not the aircraft concerned were fired on by our Forces, but it is conceivable that if war aircraft were over our territory they would be fired on, and surely it is not the intention to exclude from compensation the case of a man whose property was damaged as a result of action by our own military. I think there is a flaw in Section 2 to that extent, which should be cleared up.
I raised this matter on the Second Reading and I understood from the Minister that the matter was covered by means of an assessment from the Department of Defence: that if any damage were caused by our own Defence Forces, the person whose property was damaged could get compensation under a previous Act.
Under what Act?
I do not know.
I think it would come under an Emergency Order.
Well, I do not know, but that is what I understood from what the Minister said on Second Reading. In any case, of course, the damage to property caused by shrapnel would be very slight.
Surely it might cause a fire.
Yes, and an unexploded shell might cause considerable damage afterwards, just as the crashing of one of our own aeroplanes might cause considerable damage. It seems to me that, if that matter is not already covered, it ought to be covered in some way in this Bill.
Unfortunately, aeroplanes of our own Army have fallen and injured property even before there was any war in the air over us or in the seas around us, and since this second European or world war started, damage has been done to property by our own Defence Forces. In connection with such damage, payment has been made out of the Army Vote. There is a special sub-head in the Army Vote dealing with payment for such happenings. As far as I understand, although the payments were ex gratia, no complaint has been made, and I am sure that if there was any dissatisfaction with regard to these payments I would have heard of it.
Well, I am not at all satisfied. If it is a matter of definite Government policy that such people would be compensated by means of an ex gratia payment for damage to property that was due to the action of our own Defence Forces, I suppose there is not much more to say about it, except that I think it would be more satisfactory to have some provision, in a Bill of this kind, to deal with that matter on a regular basis. I think it would be far better to have some such provision in this Bill. I still have grave doubts under this section as to when we would be in a state of war.
I am not quite satisfied with this matter of ex gratia payments. If it is considered satisfactory to deal with damage caused by our own Forces by means of ex gratia payments, then why have this Bill at all—why not make all these payments ex gratia? If there is statutory authority in the one case, why not in the other? However, as it seems that there is a precedent for ex gratia payments in the case of damage caused by the action of our own Forces, I should be disposed to withdraw my amendment.
This section makes it quite clear that the Bill, when it becomes an Act, will apply only to injury to property which occurs while the State is not engaged in any war. Therefore, what we are considering here generally is damage of a very limited scale. No such thing is likely to occur as was mentioned by a Senator on the last occasion, involving damage much greater than the destruction of 3,000 bridges, because presumably if we are going to have widespread damage through the action of non-Irish aircraft or armed forces, then we would be in a state of war undoubtedly. What is contemplated by the Bill is a very limited amount of damage and the provision that would have to be made for a state of war would, of course, be very different.
Has the Minister any intention of clarifying as to when we should be in a state of war? Otherwise I would make a shot of providing something myself on the Report Stage. I think it is not clear at all.
It is clear that we cannot be in a state of war unless the Oireachtas so declares.
Except in case of a sudden invasion.
Even then, there would have to be a formal declaration. That of course would not prevent us from defending ourselves. There would have to be a formal declaration at some time.
I move amendment No. 2:—
In page 4 to add a new sub-section (5) as follows:—
(5) Any claim for compensation may be charged or assigned as security for a loan.
The amendment seeks to cover a case where a claim for compensation has been lodged but has not been settled. It is quite possible that the claimant may require some financial accommodation pending the settlement of the claim. That claim may be the only security he has to offer for that accommodation. I think it would be desirable, in the interests of a person who wished to begin building, that the claim should be capable of being offered to a bank or to anybody else as security for that accommodation. The amendment is only a layman's amendment, I admit, and the Minister, if he accepts the principle of it, might like to submit it to his Parliamentary draftsman. The principle is one I think, however, that should commend itself to the Government and the House.
I have had the draftsman in consultation on this point and he informs me that there is nothing to prevent a person making an assignment of the claim and that it is not necessary to have it specifically provided for.
In the Dublin Reconstruction Act of 1924, there are very elaborate provisions dealing with the making of loans for reconstruction with the claim as security. I do not know whether the Minister has looked through that Act or whether he intends to do anything to make similar provisions under this Bill. It may very well be that, without any further legislation, the claim for compensation would be accepted as security by a bank but it was thought necessary in the case of the damage done in 1922 that arrangements should be made by law to allow a person to get a loan under special conditions.
The draftsman says it is not necessary.
Assuming the Minister is unquestionably correct—an assumption in regard to which, with every respect to him, I have some little doubt —I suggest there would be considerable difficulties, without some legislative provision, in making a charge of this kind. For instance, the Bill provides that there may be a reinstatement clause attached. If I read the Bill aright the person, to whose award such a reinstatement or other condition may be attached, will not know that that is being made until the award is finally determined and that will be presumably after the charge has been incurred. I should like to know what will be the relation between the person who has secured the charge and the Minister in these circumstances. Unless some specific provision is made to cover cases of that kind, I think the person with the charge will find himself in a very peculiar position. Again if a charge is made on the claim, and the unfortunate person who has secured compensation cannot build his premises, as might easily be the case, owing to the shortage of supplies, for two, three or even four years, quite possibly certain charges by the State will have accumulated in the meantime. I presume if there is no provision made in the Act to cover such cases, the State would first recoup itself in respect of these charges before any other charge in respect of the bank or other person could be satisfied.
The Minister says that there is no need for a provision dealing with these matters. If that is so, we must more or less accept the Minister's word, but I should like to emphasise the extreme importance of such a provision. Let us take a type of case which I know does exist already and which, if there were further damage, would certainly arise in future. Say that premises are completely destroyed. The trader or the company has been operating by means of a bank overdraft charged against the premises or the stock. It seems to me almost essential that a person in that position should be able in some way or other to satisfy the bank that when his claim was paid he would be in a position similar to that which he occupied before the premises were destroyed, otherwise he might be forced to seek the protection of the courts simply because he could not find a satisfactory legal way by which he could secure his creditors. We are trying in this Bill to do justice to an unfortunate individual who finds himself, through no fault of his own, in a worse position than the rest of us because our premises were not damaged. It is to my mind absolutely essential that every effort should be made and every care should be taken to enable him to carry on until such time as he is in a position to restart his business. I am referring now to business premises; I am not referring to residential premises as the occupants of such premises are generally able to move elsewhere.
I personally should have no objection to having such a clause inserted in the Bill if I were satisfied that it was necessary but this point was raised before the Bill was introduced in the Dáil and after the Bill was introduced in the Dáil and on each occasion when I sought legal advice I was given the opinion which I have given already to the House.
I could understand the Minister's insistence on legal advice if the Minister simply asked: "Can this thing be done," and he got the legal advice: "It can be done." But in circumstances which the Minister has already said he thought were analogous, it was considered right, in the Dublin Reconstruction Act, 1924, to pass a section which contains seven sub-sections dealing with loans in aid of expenses of reconstruction. There is another section, Section 6 of the same Act, which contains 15 sub-sections dealing with loans secured by charging order. So that it seems that something more than being merely able to get a loan from the banks was deemed necessary at that time. Why is it that no such provision is now deemed necessary in the case of this Bill?
On the section, I still think that sub-section (2) is unfair to the large municipalities. This section excludes any damage to any street, road, bridge, viaduct, subway, watermain, water-pipe, sewer, drain or culvert which the local authority is required to maintain. I put it to the Minister that, if by any unfortunate chance bombs should fall on the city again, it will undoubtedly create hardship on the ratepayers to say that such costs should be borne by them. It is likely that such incidents will occur. For instance, the bomb which was dropped on the North Strand would not cause as much damage to municipal property as if it fell on O'Connell Bridge, and if O'Connell Bridge were demolished it would mean a huge sum on the ratepayers of Dublin to reconstruct. I think that it is unfair to put the whole onus of reconstruction of municipal property on the municipal authorities. It means that the rates in a city would be immensely increased. My whole point in objecting to this is that the cost of repairing such damage should be borne by the State and not by the local authorities.
As to sub-section (4), I must say I do not understand it:—
"Notwithstanding anything contained in this Act, a person who has (whether before or after the passing of this Act) received from a Government or authority outside the State compensation in respect of an injury to which this Act applies shall not be awarded or paid any compensation under this Act in respect of that injury."
I do not know how anybody could get such compensation without the knowledge of the Government, and I should like to have my mind clarified as to how such a thing could occur. I suppose it is reasonable that the section should be in the Bill, but I do not see how such a person could get compensation without the knowledge of the Government. The Government would have to make representations in such a case, and I do not think it would be possible for individuals to get such compensation.
My main objection to the section is that it will be onerous on a number of municipal authorities if such incidents should occur again. Indeed it will be onerous as it is as regards what has occurred already.
On the point made by Senator O'Donovan dealing with sub-section (2), that watermains, sewers, bridges and so on must be repaired by the local body, I think the case is even stronger than he has put it. Under Section 16, the local body is required to make a contribution of not more than 25 per cent. One would imagine from Section 16 that the total amount for which a local body would be liable would be 25 per cent. of the damage done; that the State would bear 75 per cent. and the local authority 25 per cent. Unless I am reading the Bill wrongly, and if I am I hope the Minister will correct me, the local authority will be responsible for 25 per cent. of the damage done plus this damage. As Senator O'Donovan has pointed out, in the case of Dublin, or indeed in the case of Cork City, or in the case of a raid on a comparatively small town where serious damage was done to the property of the local authority, it would not only be mulcted in 25 per cent. of the total damage, but it might find itself entirely bankrupt in endeavouring to reconstruct public services. It seems to me that the 25 per cent. should be the maximum.
It would be a reasonable compromise —I am not sure that the people representing local authorities would agree to it—that it should be 25 per cent. including this, but not 25 per cent., plus the repairing of all the damage to culverts, bridges and so on. I wonder will the Minister tell us whether it is intended that the contribution of local authorities should be 25 per cent. of the total damage, plus the cost of repairs to their own property.
As to the point raised by Senator O'Donovan under sub-section (4), damage has been suffered already and compensation has been paid by outside authorities. It is to prevent people getting compensation a second time that this section is put in. Generally, it was believed that local authorities themselves could readily and without very great expense repair watermains, bridges or roads that may be damaged and that was done in the case of the North Strand, I think, without very considerable expense upon the Dublin local authority. With regard to roads and bridges, where bridges are being rebuilt or repaired, there is, I think, usually in all cases—in regard to main roads in any case—a grant available from the Road Fund. In some cases I know that the grant amounts to a considerable sum. It is intended that the 25 per cent. which is dealt with in another part of the Bill as the contribution of local authorities should be exclusive of the cost of repairing roads, bridges, etc.
That is, that the local authority will have to pay 25 per cent. plus this cost?
Yes, it may have.
In the case of Dublin or in the case of any given local authority, that may be so enormous a sum that the local authority could not possibly bear it.
Yes, that could happen; but I am not sure about the local authority not coming to the Government in that case.
Surely we ought to provide by law what we mean. The position is that the Dublin or any other local authority is to be liable for certain things by law, but with the knowledge that if the liability is very onerous and they apply to the Government in office, whoever they may be, they may probably get a grant. I suggest that that is a very unsatisfactory way in which to pass a law.
It would be very much more unsatisfactory possibly, say, in the case of a coastal town which might conceivably be destroyed while we are neutral; but if that is the policy of the Government we have no power to change it, and I think that there is not very much that can be done about it. On the section, I should like to raise a question with regard to rent. I take it that these words in brackets: "(otherwise than with a rent)" exclude any compensation for loss of rent and are so intended. It seems to me that that is a mistake and that it is not just. But, if it is to be a definite policy, then it is essential, if there is to be any fairness or equity to individuals, that some other steps should be taken at the same time. Many of the houses rented in the City of Dublin are owned in blocks of a few together by landlords who have comparatively little means themselves and who live on the rents. In many cases, if not in most cases, there is also a ground rent and there are certain other liabilities attached. If the place were completely razed then the liability might be only the ground rent. But if the place is damaged, then the liability might be considerably more. Is it the position that an unfortunate person who owns three or four houses which have been destroyed and which are his main sources of income is to be forced to take the protection of the court, because the State will give him no compensation whatever for rent, but leaves him in the position that he is still liable for the ground rent or other charges that he may be quite unable to pay? If the policy is that we have no sympathy at all for the person in a neutral State whose property has been destroyed by a bomb and who lives on the rent of it, and that we can do nothing for that person, I think that is completely wrong. The least we might do is to provide some form of moratorium by which the loss would be shared and other people lose their ground rents at the same time. I think that, standing as it is, it will prove to be a hardship and definitely inequitable, if I have interpreted it correctly.
Surely it is an extraordinary situation that the owners of every kind of property will be compensated except the person who is living on rent derived from property. It used to be the thing at Foster Place to say that everyone who lived on rent was a millionaire. That, of course, is far from being true. There are a great many people who left a small amount of property to their widows who have no other means of livelihood except the profit rents out of the property. By what process has it been decided that certain forms of private property will be compensated for, but that this particular form of private property will not be compensated for at all? I cannot understand the logic, the equity, or the practicability of it. It seems to be an extraordinary situation that a manufacturer will get compensation for plant, machinery, and other property, but the person who has to live on rents will get no compensation at all.
Rent and ground rents were regarded as consequential losses, but not damage to property.
Ground rents are payable to persons who will get no compensation as the Bill stands, while a person who loses property will be paid. If we are anxious to be equitable I say that we should provide for the time that people will not be getting ground rents, as otherwise you leave them at the mercy of others, and if pressed they will have to take the protection of the courts. I want to get this principle put in, that where there is liable to be serious consequential damage, and where it will not be met, it should be shared by the State stepping in to protect over a long period persons whose main loss is consequential, and who may be put in the position that they cannot meet claims. On a further section I propose to deal with this matter as it affects business. I urge the Minister to agree on Report to bring in something which will provide that in the case of persons depending on rents their other statutory liabilities would be postponed for a reasonable time, or until premises were rebuilt.
I dealt with a similar point that was raised in the Dáil, and I said that consequential damage of that kind in regard to ground rents should be dealt with by way of a separate Act, and should not come into this Bill.
Does the Minister intend to introduce legislation to deal with consequential loss? I have in mind a particularly harsh case of a leaseholder who paid rent in advance, for premises in the North Strand, to the head landlord who happens to be a lady. I think it is a great injustice and nothing short of a scandal that no provision is being made to deal with people in that position under this Bill. I understand that many are suffering in that way as a result of the recent bombing in the North Strand.
Can the Minister say what has been done with regard to the payment of rents in England? The case here is on all fours. If damage takes place neutrality does not affect the position. Rent and other obligations have been dealt with on a very comprehensive scale in England, where cases are taken to court and people have to make the case that they are unable to pay. If we are going to tackle this matter seriously and adequately we must have regard to consequential damages. I cannot help feeling that the scope of this Bill is unduly restricted. There is no essential difference whether damage takes place under conditions of war or under conditions of neutrality, except that in the latter case it is not so widespread. The essential features are the same and would require the same treatment.
Is the Minister really serious in the attitude he is taking up? This Bill is not restricted, because it deals with damage to property, and with the position of local authorities, upon whom it puts obligations. It deals with consequential damages, but the Minister has taken up the attitude towards a certain type of criticism that he is not providing for that in this Bill, that he is not in favour of it, but that if he were it would be in a different Bill. While the Minister has not said here that he was not in favour of it, in the other House I think he said he was not in favour of consequential damages. The Minister does not expect us to believe that he is a simpleton. I do not believe he is. He is very far from being one on this kind of thing. Surely he does not intend to put it across the House, that in a Bill which contains a great diversity of provisions, including one for town planning, and for consequential damages, his attitude about a certain amendment or suggestion being put in is that it should be dealt with by a different kind of Bill.
I suggest that as this Bill has been constructed, and as it has come from the other House, every single point that has been raised now could be relevantly and properly put into it, and that no one would have more influence in putting it in and framing it with due regard to the public purse, than the Minister. I am in favour of the Minister amending this Bill. There is no difficulty in doing so from the point of view of practice. If the Minister does not do it himself perhaps he will give Senators the opportunity and facilitate them in that respect.
I have no power to influence anybody in this House. Senators can do whatever they like.
I desire to call the Minister's attention to sub-section (6).
Every applicant or other person making an application to the Minister under this section shall furnish such information and particulars in relation to the injury which is the subject of the application or in relation to any matter or thing stated in the application as shall be required of him by the Minister.
Surely that ought to read "shall furnish such information as is within his knowledge". The wording might disqualify an applicant if he failed to answer certain questions. A case might come before the courts for decision. I think there is a mistake there and, if possible, I want the Minister to satisfy me that there is not. Otherwise I will deal with it on Report.
I do not think there is any mistake. It would be most unreasonable to hold the other view. If it was not within a man's knowledge, he should not be required to furnish it then.
Will the Minister assure me, not only that it is the intention but that the legal practice is that it means "within a person's knowledge". If what the Minister says is the way it would be interpreted and accepted by the courts I would be satisfied. Otherwise, I should like to have other wording.
I am afraid I could not satisfy the Senator as to the decision of the courts.
There is just one other point in connection with Section 4. Sub-section (7) provides that every communication from the Minister to an applicant may be sent by post. Surely the same provision should work both ways. Further on in the Bill, it is provided that the person making a claim must reply within a certain time to the offer made. There should be some reciprocal provision that, in order to know the date on which he has replied, one could refer to the date it was put in the post. I think there is a danger of a dispute as to whether the person has replied accepting or rejecting within a particular time. It may be extremely important as, if a person intended to object and was deemed to have accepted, his right of appeal might be removed and there the time of posting might decide whether there was an appeal or not.
I would have no objection, if the Senator wishes to have that done.
I move amendment No. 3:—
In sub-section (1), page 5, line 1, before the word "consider" to insert the following words "within six months after the making of every such application as is mentioned in the next preceding section of this Act"; and after the word "every" to insert the word "such".
Section 5 makes provision for the payment of compensation, but not for payment within a specific period of time. In other words, a claim for compensation may go on for a considerable period of time and there is no obligation on the Minister to meet it within a specific period. We all know of the law's delays and of the administrative delays and it seems that that is a particular weakness in the section. We have known of claims which have been held up for many reasons—sometimes the reasons were available and sometimes they were not. In this particular case, the amendment suggests that there should be a period, not later than six months from the presentation of a claim, in which the Minister should be obliged to meet it. For instance, if a man's house is rendered uninhabitable and he is put to great expense living in temporary premises, obviously he is in great distress if his claim is not met within a reasonable period. In asking for the insertion of this amendment, limiting the time to six months for hearing the claim, we think we are asking for something reasonable. If the claim cannot be decided within a reasonable period of time, the claimant then has an opportunity to go to court and have his case heard and adjudicated upon there. I think the Minister should accept the suggestion of six months and insert the amendment in the Bill.
I am sorry I cannot accept the amendment. The same point was raised and discussed at considerable length in the Dáil. I thought I might be able to accept an amendment which would restrict the Minister to 12 months for the consideration of the application. I went into that and I was satisfied by the Department officials—though I pressed to have the 12 months accepted—that they could not possibly bind themselves to accept a limitation of that kind. I came back to the Dáil and said I could not accept even the 12 months that I had thought might be reasonable. I made a promise that I would set up a special section in the Department of Finance to look after this and press the Department to have every claim dealt with expeditiously. I am sorry I cannot do any more than that to meet the point raised by Senator Lynch. I realise that it would be most advisable to have all the claims dealt with as expeditiously as possible, and all I can say is that I will make my best endeavour to have that done.
I am extremely disappointed with the Minister's reply and I wonder if he realises how extremely important this may be to certain people. He has already assured us that, without any change in this Bill, it will be possible to make a legal charge on the rights, whatever they are, under this Bill, for the purpose, presumably, of preventing the pressure of creditors or other charges. He has told us at the same time that, although he is setting aside a special department to deal with this, he cannot promise to make an offer, within six or even 12 months. If the offer is not acceptable, it will have to go to the court afterwards. If there were a legal definite date on which there must be an offer, it would then be practicable for a claimant to go to his creditors—the bank or others—and say that, under this Bill, he would have an offer by a certain date and that, when he gets that offer—whether he makes an appeal or not—he would give a definite legal charge to his creditors. That would stave off the pressure. As the Bill stands, he can see no way out of it and all he can say is that he may get an offer some day or some time. I suggest that that will create both unwarranted and unnecessary hardship on persons who have had their premises damaged by bombs and who have serious liabilities—it will be a miracle if some of them are not forced to seek the protection of the courts— before the end of a period anything like as long as is envisaged by the Minister This is a matter in which the House really should press the Minister to show that it is not possible. If it could not be made a general rule, there could be a personal certificate of the Minister in particular cases, which would strengthen the position of a man who was trying to stave off his creditors, when everything he had was destroyed. I think there was an impression abroad that this Bill was not going through the Seanad until later—probably it was an erroneous impression, taken from something in the Press, that it was not deemed necessary to put this Bill through until the autumn—and, as a result, it is only in the last few days that cases have been brought before us. We are not dealing with an ordinary common or garden hardship: we are dealing with people who, through the dropping of a bomb for which they are not responsible in any conceivable way, are not in a position to meet their liabilities. I want to make it possible for them to stave off their creditors and carry on. I am not interested personally in any special case, but have been impressed enormously by the difficulties; and I think the Minister might give way on this amendment as, if he refuses, it will make the position almost impossible for some of them.
Surely it should not be outside the power of the Department to make the necessary declaration under Section 5 within six months. Nine months is, I think, the period under which consequential loss is covered in most insurance policies. When they decide the application they communicate with the applicant and then he can go to the court. In other words, after a period of six months the applicant can have recourse to the court if he likes. There is a special case for that in our present circumstances, because building materials are scarce. For that reason it is difficult to get on with the work, and the person whose assets have been destroyed requires—as Senator Douglas has pointed out—some document to show that he is to get certain compensation. I think the Minister is quite in agreement with us that that should be done at the earliest possible moment. I do not know what Departmental difficulties there may be which would prevent a decision within six months, or at most within nine months. Otherwise, this matter will drag on, between town planning on the one hand and delays in dealing with applications on the other hand, while the persons who suffered will be hanging like Mahomet's coffin, and will not have any security to offer to a bank or to any other body to keep them going. I think the amendment is eminently reasonable.
I feel, like other Senators who have spoken, that the Minister ought to try to meet this case. The Minister says he is told that this could not be done even within 12 months, but he did not give us any indication as to what are the difficulties in the way of a decision. If I were in the Minister's position, I should say to myself: "I should like to have this section there to protect me from my friends and to make the Departments concerned hurry up," because, whether it is justified or not, there is a feeling generally in the community that the methods of the Civil Service, however thorough they may be, are mighty slow. I think in the Government's own interest, the Minister should welcome a section of this kind, in order to force his advisers to give a decision one way or the other within a specified time. The Minister would strengthen his case very much if he would indicate what are the difficulties in the way of a decision within six months. If the Minister is unable to meet the amendment on the six months' basis, would he consider the payment of interest? I cannot help feeling that, after a certain time, interest should be allowed. In the case of the measures in England, interest runs, I think, from the date of the application. If the injured party is to get no compensation within a year, I think interest should be paid in mitigation of the delay.
I would not object to penalisation of the Government by the payment of interest. I am anxious to expedite this matter, and I am anxious to have it cleared up. I do not want the position to arise again that I am told arose after the 1923, 1924 and 1933 Acts, where I think Deputy Costello mentioned that some cases were six years without being settled. Of course that was not the Government's fault. Some of the cases were six years without being settled because the two sides could not be got to agree on anything. As there were two immovable bodies, there was no power to bring the matter to an end. To ask that all the applications which will come in—even if there were no other applicants but those who have had their property of one kind or another injured by bombs during the last year and a half or so—should be examined and dealt with within six months, is to make an unreasonable demand. Every claim will have to be examined thoroughly. The property will have to be visited and inspected; there will be valuers coming in, architects coming in, and engineers coming in. What the amendment asks is that all the claims —at a modest estimate there will be at least 2,000 from the North Strand area—should be examined and disposed of inside six months, and I cannot undertake that the Department would be able to carry out the necessary detailed and intricate examination within a specified time.
Would it be possible to give a reply within six months as to whether or not a person would be entitled to compensation, because I believe that will be one of the greatest difficulties? It seems to me that it should be possible, within six months from the time the claim is made, to say whether or not it is a bona fide claim, or whether there will be any compensation. That would mean that, within six months, the creditors would know that the claimant would get some compensation in any case. That would help the peace of mind of the persons concerned, and would also greatly strengthen them in dealing with their creditors. In view of certain information given to me, that is a difficulty which I am most anxious to find a way out of.
I am anxious to find a way out of it, too. I am wholeheartedly with those who are anxious to expedite this matter and get it finished with, but I have heard the other side of the story as put up to me by the staff, and they say it would be impossible to bind themselves. Supposing they had dealt with the greater number of the cases, but there were still some very intricate and difficult ones outstanding; they would go, perhaps, to the courts, but if they could go to the courts they would not be much better off, because, notwithstanding what we hear about the Civil Service and about Government Departments generally, the courts are not so expeditious either.
That is what makes it worse, when you have one added to the other.
Then, nobody has any right to complain about the courts; people can and do complain and kick up a row with the Minister, Deputies and Senators leading the deputations, and their complaints are listened to, I think, in all cases sympathetically. I think they would be a good deal worse off if their claims go to the courts instead of to the Minister.
If there is any possibility of finding a practical way of settling this matter, we might leave it to the Report Stage. I should like the Minister to consider the last suggestion which I made.
Yes; I will consider it.
Is the amendment being withdrawn?
On the understanding that the Minister will introduce something to meet it on the Report Stage.
I cannot give any undertaking.
If necessary, it can be moved again on the Report Stage.
Perhaps the Seanad would allow me to interpolate to say that I understand it has been agreed to take item No. 4, the motion in the name of Senator MacDermot, this evening after the adjournment for tea, at an hour not earlier than 7 o'clock, and to leave over the Trade Union Bill until to-morrow.
I wonder is the Minister satisfied that sub-section (2) (a) must have no limit at all? Apparently, there is no limit to the kind of conditions which the Minister can attach. It has caused uneasiness amongst people who have approached me. I can quite understand the provision under certain circumstances for a reinstatement condition but I do not think it is right to permit conditions and provide no appeal against them at all. The court could not decide, no matter how unreasonable it might be. The Minister knows that in dealing with this we are not dealing with an individual Minister, but with whatever Department may have to be dealt with at any particular time. The question of appeal does not, I think, arise on this particular section but the question of the conditions does. I would be satisfied if in some way or other the conditions could be defined or limited or, preferably still, that they should be part of the appeal, that it would be possible for a person to say: "I accept the amount but I cannot accept the condition without appealing to the court".
I cannot imagine the type of condition the Senator has in mind as being an unreasonable condition that the Minister might include. I do not know of any.
Does the Minister mean that he could legally include?
That he could include if this Bill passes.
If you take something completely absurd, you could say the person must be a freemason. Nobody imagines that would be done.
Is it not absurd to think that any condition remotely approaching that would be included by a Minister?
My principal object was not to get at loggerheads with the Minister but that the Minister might indicate what condition, in addition to reinstatement, is specifically provided for, so that people outside may be more or less assured. I cannot think of any provision, other than reinstatement, that could reasonably be included. I want to know what conditions he has in mind, in addition to reinstatement. I gave something absurd but I do not think for a moment there is any intention to do anything absurd, but I am puzzled and, as a member of this House, I am entitled to ask what there could be other than reinstatement.
There could be something of the type of building that could be put there, a shop excluded, or something of that kind, in a residential area.
Will not that be decided by the town planning authority for the particular area?
Very largely. There are places where there is no such thing as town planning, where they have not adopted it.
The Carlow area for example.
In that case there would be no objection to including it in the appeal. I can raise that later.
I move amendment No. 4:—
In sub-section (2), page 6, to delete paragraph (i).
Section 6 deals with applications to the Circuit Court for compensation under the Act. The amendment is to delete that part of the section which provides that, where the applicant has refused an offer made to him by the Minister of a specified amount of compensation and the compensation awarded to the applicant by the Circuit Court or, in the case of an appeal, by the High Court, does not exceed the compensation offered by the Minister, then the costs of the action are imposed on the applicant. That seems to be manifestly unfair and might be considered intimidatory in many ways because the applicant has to risk the question of costs by going into court and, if he is not prepared to take that risk, then ipso facto, he is obliged to accept the amount of the compensation.
That is not what is ordinarily done in legal cases. Costs in ordinary legal cases as a rule follow the decision of the court. It is difficult to see why such a clause should be inserted in this Bill which necessarily puts the applicant to the election as to whether he shall go into court or not—and in many cases these will be poor applicants— and to compel them to run the risk of having costs imposed on them if they should not succeed in getting the court to increase the amount of compensation. That seems, as I say, manifestly unfair. In our opinion that portion of the section should be deleted, and it should be left to the court to decide as to whether the amount of compensation awarded is right or not—as courts ordinarily do decide between the plaintiff and the defendant—and let the costs follow the action, as is normal in such cases.
A great friend of mine who is a leading Senior Counsel has a habit of saying that the first piece of advice every honest barrister gives to his clients is: "Do not go to law". The Minister is adding to that piece of advice from an honest barrister a very grievous threat. He says: "If you go to law, not only will you not get any more money but you will lose something almost certainly." The machinery of the Bill is that an application is made to the Minister for Finance; the Minister for Finance makes an award. If the applicant is not satisfied with that award he goes to the Circuit Court. In the ordinary way anybody going into court is in danger of losing his action, of course, and he is also in danger—and he knows it—that the judge will give costs against him.
But what is provided for in this particular paragraph is that if you do not succeed in convincing the judge that he ought to give you a greater award than the Minister has given you, then the judge is coerced and obliged, no matter what kind of circumstances there are, to give the costs of the application in the court against the citizen and in favour of the Minister for Finance. Now, that is weighting the scales very heavily. I do not know why the matter would not be left to the judge, as is the common practice. If it were, I think the scales would still be tilted in favour of the Minister. Most applicants for smallish sums and most individual citizens would rather take £600 from the Minister for Finance without litigation than go into court and take their chance of getting something more and also take their chance of not getting any more and of having to pay the costs if the judge should so decide. It is like selling half a sweep ticket. I did it myself on a particular occasion. I think most intelligent people would do it. In this case the Minister is making assurance doubly sure. The awards given by the Department of Finance will not be liberal; the Bill, itself, is not liberal, but if they are going to be challenged, they will be challenged at the risk and peril, doubly redoubled, of the applicant.
I think it is hardly fair, particularly when you remember that people in question are not people who are criminals or who are suspected of any criminal act, but people who, while we are not at war, have suffered and for whom their fellow-citizens are making certain provision. I do not see any argument against leaving this question of costs to the judge in the action. He is accustomed to doing it. He has all the principles of law and practice to guide him. I think it may be safely left to him, and I do not think the Minister would lose much by it.
Has the Minister considered whether he is wise in his action? My view is that the judge may say: "If I give less to this poor person than the Minister has offered, that party will have to pay the costs. I do not think that is fair and in my judgment I will give some more in order to relieve the applicant of costs." I do think judges work in that way. They have regard to the human factor. We know that in running-down cases that, by some curious coincidence, the presumably rich man, the motorist, always seems to have the worst side of the case. I am afraid that human factor will operate against the Minister under this section.
The point made by Senator Sir John Keane is one that I intended to make, that is, that the section as it stands is really futile because, if a judge is satisfied that it is an exceptional case and that the Minister should pay the costs, he has only to add one penny to the amount offered and that settles the question of costs. I suggest that is not the way in which it should be left. On the judge is placed the responsibility of distinguishing between the kind of case which should never have been brought before the court and the case which he sees is proper as a test case, even though the judge might decide in favour of the Minister. As a general rule, the costs will be given to the person who wins the action and the only case in which this provision would apply would be where the court was satisfied that it was exceptional and the Minister ought to pay in the general interest.
When he comes to administer legislation like this, I believe the Minister will find it desirable in his own interest to allow a few cases of a specific kind to go to court. By doing so he will save a great deal of litigation afterwards and a great deal of trouble and expense to his Department. It is almost inevitable that there will be some points on which there will be a difference of opinion between the lawyers on both sides. There should be an effort made to settle those in an amicable way and that will tend to prevent litigation much more than if you have cases fought out in a bitter manner. I suggest to the Minister that it is a mistake to leave it that the only way out is for the judge to add a penny and decide against him, and that this paragraph could very well go.
The idea was to discourage speculative cases—to discourage people going into court. There are some lawyers who might say: "We will chance it and you need not pay a fee if you do not win." Just to show that I have some reasonableness in me, I am quite prepared to drop the paragraph.
Perhaps the Minister will make more clear the other point, as to what the position of an applicant will be if he says: "I think the sum offered me by the Minister is a fair one and I am willing to accept it, but I think the condition is unfair." It looks to me as if he might have to appeal against the offer of a sum of money, and I think that is a mistake.
I will look into that point.
I shall try to have something submitted for consideration on the Report Stage, so that the Minister can deal with the matter.
Mr. Lynch
I move amendment No. 5, which is consequential:—
In sub-section (2), paragraph (j), page 6, lines 43-44, to delete the words "subject and without prejudice to the provisions of the next preceding paragraph of this sub-section".
Mr. Lynch
I move amendment No. 6:—
In paragraph (a), page 7, lines 7, 8, and 9, to delete sub-paragraph (i).
This section deals with compensation for injury to property other than a building and it points out that no compensation should be awarded in respect of watches, jewellery and articles of personal ornament kept by the owner otherwise than as part of his stock-in-trade. It is difficult to understand why articles of that character will not be made the subject of compensation. Watches are used by ordinary citizens and as such are of considerable value. I think compensation should be paid for watches just as well as for other articles. So far as articles of jewellery and of personal ornament are concerned, there is no reason why there should be an exception made. I think compensation should be paid for all these things.
I would like to support the amendment on principle, though I would be prepared to go further. I think it is wrong to rule out completely the articles mentioned in the paragraph, but at the same time there should be a limit. I do not think a man in any part of Dublin could claim £100 for a watch, but I think the very poorest people have watches, and to rule out watches would, I think—I do not like to use the word "mean"—be viewed by the public as the height of meanness. If you refuse compensation for a watch just because a person might claim £1 or £2 too much, the public would be inclined to regard it in that light.
Such claims as are indicated here are dealt with every day by insurance companies. There are recognised principles which are observed by the valuers and assessors who are in the habit of dealing with insurance claims. These claims are not dealt with in any wide way or in any way in which huge compensation is given, unless the particular articles have been scheduled and are specifically stated in the insurance policy. Where they are not, only relatively small claims will be admitted without absolute proof. In this case the Minister is in a difficulty in deciding whether A.B. had or had not a watch and A.B. would be in a similar difficulty in proving to the court that he had a watch. There is difficulty in arriving at a reasonable basis, but that type of thing is done regularly and any experienced assessor will show that it is quite possible to arrive at a reasonable figure. I think there might be a limit of £10.
It is absurd to say that people should not keep notes in their houses. I do not think it would be unreasonable to say that they should not keep a large quantity of notes, but to suggest that they should not keep any money in the house would be surely absurd. That is usually met by the insurance companies to the extent of £10 or perhaps £25. I think the way that might be met by the State is to make provision for a total sum, which would be relatively small. I think the Minister should reconsider the matter and see whether there should not be a limit. Actually, this will be covered by his £50 in any case. I am suggesting that where a person has a watch or any of the articles that people ordinarily use, it would be absurd and mean to say: "You cannot get compensation, because you may be asking too much."
So far as postage and adhesive stamps are concerned, they should not be ruled out. A private house might not have adhesive stamps to the value of £100, but Senators must remember that there are many persons in Dublin who can show stamp collections in which they have invested considerable sums of money, perhaps £200, £300 or £500, and which are specifically insured. There is ample evidence that they exist. I think there are many people who in war-time consider that as a wise method of investment, and I do not see why these things should be ruled out. A shopkeeper may be carrying on a business which entails a considerable amount of posting. Some people do a mail order business, and the normal stock of stamps might amount to £3 or £4. I do not think that should be ruled out. What the Minister wants is to protect himself against unreasonable claims. The total amount of money is not great, but, in the case of the individual, it is the small petty things which will seem mean in the rigid carrying out of this proposal.
I carry on a retail business and, every morning, a considerable number of postal orders come in. If they come in early enough, they are lodged immediately, but, if they come in late, they are left there. If my business were to a large extent a postal business, these postal orders would be a very vital portion of it, and why should they be specifically ruled out while other articles perhaps of an equally inflammable nature and which may have been equally damaged, are allowed? All sorts of stock—provisions, drapery and other types—are most difficult to prove and are of a perishable nature, but they are allowed. While I think there might be some limit to it, I regard this section as going too far.
There is considerable difficulty about this sub-section and the next sub-section in respect of notes, and I think the Minister should have regard to a realistic attitude towards this matter. Obviously, it would not do to allow indiscriminate claims—I hope I am in order in dealing with the next section, too, because they are allied—for notes which could not be identified. In the case of a bank, the bank's strong room might be destroyed, and, if it could establish that it had a record of what was in that strong room, and if it were the practice of the bank to send that record to a safe place every night, following the English practice, I do not think that a claim of that kind should be precluded. It should be possible to deal with such a claim on its merits.
I am afraid that this section may deprive the Currency Commission, which would deal with loss of legal tender, of any discretion in the matter at all. No compensation could be given for notes, unless they could be definitely identified, and, as regards members of the public, I think that is necessary, but, as regards a bank, or even an established business which keeps a daily record which it sends away to another place—if it is able to show that that is its practice—indicating that at the close of business it had so much in its safe, which was destroyed, a claim should be considered on its merits. I wonder has the Minister considered the matter from that angle?
I should hate to be considered mean in my personal capacity, but, as Minister for Finance, I am not so particular as to what kind of name I may get. Watches and jewellery, articles of personal adornment, everybody, we know, has, but the difficulty would be to establish the existence of these articles and to get evidence of their value. How is that to be got? It is going to be difficult, if not impossible, to get it with regard to most of these things. Suppose these articles of jewellery were handed down for several generations. What value are you going to put on them? They might not be very valuable intrinsically, but might have very great sentimental value.
Suppose an insurance company has accepted a particular valuation?
Yes, that is one indication, but there is pretty widespread difficulty in proving value, unless the articles are listed for insurance. In the case of the North Strand, the majority of the people, outside the better class business people, will not have them insured. They will not have them listed and will not be able to prove value. Some of them may have had really valuable things, but there will be no evidence. That is the great difficulty. It has to be proved that they existed, in the first instance, and then proved that they were lost or destroyed. They might have been in pawn at the time. Then the value has to be proved. That is the great difficulty, and that was the reason for putting this in. I should like to be reasonable in all these matters, but I know that there is going to be the greatest difficulty in proving these things, except where people have them listed for insurance purposes. In that case we would have some guide, and some limit to the value, in the insurance policy, but not otherwise.
With regard to coins, legal tender, bank notes and so on, I am told that the Currency Commission, if there is any evidence at all of the existence of currency and bank notes, do compensate people for loss. I know a case of a man who lit his pipe with a bank note. He managed to keep enough of it to enable him to go to the Currency Commission, stake his claim, and get repayment.
Does he not need the numbers?
I am not quite sure, but he needs some evidence to satisfy the commission. What the evidence is, I cannot say, but evidence is necessary to satisfy the Currency Commission that he was the possessor of the currency or bank note. In such cases, they do generally repay and, therefore, it was not necessary to have such people included in the Bill. The same applies to postage stamps, postal orders and money orders. If you have any evidence to give the Post Office that you were the possessor of such articles which were lost, destroyed or damaged, the Post Office, I understand, makes payment. Generally speaking, if you are a large customer, the local post office will know what amount of stamps you had, and, if satisfied, they will repay. Stamp collections are a different matter. If there were a valuable collection of stamps in somebody's possession, I should not like to have it ruled out under sub-section (3), because such collections are valuable property.
It is not intended.
If it were a valuable collection of stamps, it ought not to be ruled out under that sub-section.
The Minister can easily assume that a large number of people in the North Strand area had saving stamps. What would be his attitude towards such people?
If they had these stamps, they should be repaid by the Post Office, if there was evidence.
It is entirely a matter as between them and the Post Office. So far as the Bill is concerned, they get no help whatever.
The Post Office do repay in such cases. Wherever there is any evidence of such things having suffered damage or loss by burning, the Post Office will pay.
It is pretty clear that the point of view of the Minister in relation to this is exactly opposite to mine and that his outlook on this and mine are quite different, except in regard to collections of stamps, which I shall raise on the Report Stage. Let us take a case of loss in an ordinary case where there was damage by fire. Before I could claim from the insurance company, I would have to satisfy the company that I could not get repayment from the Currency Commission or any other body. If I had the right to a refund for postage stamps or postal orders, they would not represent loss and do not, therefore, come under this provision at all. In other words, I am pleading for those who cannot get a refund, and it is on the argument that, because certain people can get it, those who cannot should not be included, that I differ from the Minister. The reason he gives for their exclusion is that some people will not lose them. That, in effect, is what it means, because, legally, if you have evidence which will enable you to get a refund from the Currency Commission, you cannot claim in court against the Minister. If the Minister can show that you could have got it, he will win the case, because it would not have been a loss. Exactly the same thing applies with regard to his attitude to value. He says that one cannot find out the value. I do not agree with him at all. Take a watch. Very frequently you will be able to provide evidence from the person from whom you bought it, and the approximate price paid for it. If that is not possible, you will, at any rate, be able to produce evidence from the person who, at some time or other, repaired it. I agree with the Minister that the rich person will find it easier to get evidence than the poor person, but I do not agree that that is a reason why the poor person should be excluded from the provisions of the Bill.
The Minister says the reason why he will not agree to this is that he cannot get evidence. He may not be able to get evidence, but my answer is that if he had not this section in the Bill he would not be liable without evidence. If he takes it out, he only makes himself liable where there is evidence to satisfy a court. Suppose the section was not there and I made a claim for a watch, and the Minister said, "I am not satisfied that you had a watch," in that case I would have to go to the court and prove that I had one. It is extremely unlikely that I would go to the court unless I felt that I could prove my claim. We are not dealing now with people who cannot produce evidence. They are not covered by the Bill at all. If they cannot produce evidence that a house or some other property destroyed was their property, then, of course, they cannot get compensation. The people the Minister is excluding under the section are people who have watches, and who can provide reasonable proof that they had them, yet, he says, he will not pay compensation for them. The Government are not being asked to pay for anything where reasonable proof is not available. Take an actual experience of my own with regard to a piece of jewellery. It was not possible to prove what, I thought, was the full value of it. The actual price paid for it could not be proved and consequently a compromise was reached. If the insurance company had not been satisfied, we could not have compromised, and I could not have done anything more because I was not able to get more definite evidence than that which I produced. The Senator who moved the amendment is making a plea with regard to cases in which the evidence can be produced. In such cases, I think it is reasonable to ask that compensation should be paid.
Surely the matter is much more susceptible of proof and much more reasonable than the Minister represents it to be. The idea underlying the insertion of this particular sub-section in the Bill is that persons may make claims which they cannot prove. If so they will not be accepted. If you are paying a premium on a comprehensive insurance policy, to cover your house and furniture, everybody knows that the insurance company will only accept liability for a certain percentage of the total to cover jewellery, watches, personal ornaments. It is a small percentage. If the furniture was insured for, say, £500, you can only get a very small sum from the insurance company, less than £50, I think, for the jewellery. In the case of persons not insured, why not apply the rules which the insurance companies apply, and which, after all, are not more than the rules of common sense? Suppose a man has furniture to the value of £2,000, and a house with a rateable valuation of £40, and claims that he had £50 worth of jewellery—watches and personal jewellery, for himself, his wife and daughter that, I think, would not be unreasonable; but if a person with an income of £3 10s. 0d. a week, living in a house of a much smaller valuation at a rent, claims what seems to be an unusual amount, the onus of proof will be on him. After all, the Minister's officials are acquainted with the circumstances of persons in different stations of life, and it would be easy enough to say whether a claim made by a person in a certain position appeared unusual or not. The Minister might bear in mind what Senator Douglas said about getting evidence of proof from people who repair watches. I have on my wrist at the moment a watch that is not worth, I suppose, more than £1 or 30/-. I was foolish enough at one time to buy a good watch, a nice gold watch, which I had to get repaired quite recently. I was told the exact value of it by the jeweller. He made an entry in his book as to when it was repaired. Suppose my house was destroyed to-night, it would be reasonable to presume that the watch was there, unless I had pawned it in the interval. Therefore, I do not think the difficulty of producing proof would be as great as the Minister has represented it to be. In any event, why not insert in the Bill a proviso similar to that in insurance policies: that not more than a certain percentage of the total will be allowed for jewellery?
There are plenty of people in Dublin City and in country towns who have a certain amount of jewellery that was bought within the last ten, 15 or 20 years in the same shops in Dublin or in the country. I am sure the Minister himself knows people who have the habit of buying pieces of jewellery. If they lose it, and are in a position to produce proof that they had it, I do not know why they should be debarred from doing so. The story is told in connection with the North Strand bombing that the foreman on one of the premises involved—he happened to live on the premises—was engaged to be married to a lady from the country. He had in the house a number of wedding presents, including two watches and some other pieces of jewellery. I am assuming that is a true story, but, at any rate, it is one that could be checked up. There is a case, I think, for deleting this particular sub-section, and of allowing these applications to be decided on their merits.
I have been impressed by the arguments put forward by Senator Douglas and other Senators, and can see the reasonableness of the demand that is being made. Like Senator Douglas, I had some experience of insurance companies in these matters. It is only fair that the State should be as reasonable as an insurance company. The fact that satisfactory proof must be forthcoming before claims are admitted is, surely, an ample safeguard so far as the State is concerned. In the case of watches, if the jeweller who sold one is not available to give evidence, at any rate it is almost certain that evidence can be given by some person who has repaired it. Evidence of that kind should be sufficient to safeguard the State from fraudulent claims. I would ask the Minister to accept the amendment.
I am still of the opinion that an injustice will be done if some provision is not inserted to cover the cases referred to. On the last day I referred to cases that I had some knowledge of myself. The small shopkeepers concerned are now in hospital. I suppose they are glad they were not killed. They may be compensated for the loss of their stock-in-trade, but I think some provision should be made to cover the losses they have sustained in the way of coins, legal tender notes or other Government notes. The amendment before us does not, of course, relate to sub-section 2. It relates only to watches and jewellery. I ask the Minister to reconsider this because these articles are, apparently, not covered by Section 10, which deals with consequential damage. They are not included in "consequential damage". Then, some people have a good deal of coin on their premises—especially shopkeepers. This North Strand bombing occurred, I think, on a Friday night. If it had occurred on a Saturday night, the shopkeepers concerned would have had on their premises a considerable amount of money, taken in from the time the banks closed at 12 o'clock on Saturday. Some of that money might, of course, have been in a safe but the safe could have been blown away. It is, I think, unfair that the money which a shopkeeper may have on his premises when these bombing incidents occur should be ruled out for the purpose of compensation. I do not think we are so dishonest as a people that a fair evaluation of the loss sustained could not be made as between the applicant, or his representatives, and the State Department concerned. Poor people who had money in their houses and who could prove that their money was totally lost should not be deprived of compensation for that loss.
I suggest to the Minister that we should get back to first principles on this Bill. Surely, the object of the Bill is to compensate people for what they have lost? Incidental to that is the prevention of fraudulent claims. The only reason I can see for differentiating between jewellery and table silver or valuable ornaments, other than personal ornaments, is that it is more easy to make a fraudulent claim in respect of jewellery than it is to make such a claim in respect of other articles. I do not see why it should be easier. It is just as easy to say that you have lost some valuable silver as to say that you have lost jewellery, but I suppose the Minister has been advised that fraud is more easy in the case of jewellery. I support the Minister to the fullest extent so far as the exclusion of fraud is concerned, but I feel that it is just as easy to prove the possession of jewellery by an insurance policy or other methods as to prove the possession of furniture or other such articles. It is unjust to rule out jewellery completely for the purpose of compensation. One might be suspicious of the prices claimed for articles of jewellery but, otherwise, I feel that ornaments stand on the same basis as any other possession.
I am quite prepared to reconsider the matter on the understanding that there will be a limit to the obligation undertaken, as suggested by Senator Douglas or Senator Hayes.
Listening to the discussion of this amendment, it seems to me that the difficulties of the Minister are more apparent than real. I am connected with the insurance business and the problems mentioned are problems we are up against every day. In disposing of the claims, we find that serious difficulties are few. Although fire insurance policies provide for arbitration in the event of dispute, very few claims have to be referred to arbitration. I feel, with Senator Hayes, that limited provision should be made with regard to watches, jewellery and matters of personal adornment. We, in the insurance business, meet that type of claim frequently and we experience no difficulty in dealing with it. I hope the Minister will give consideration to the matter and that the Report Stage will not be taken until next week so that another amendment may be put down.
I should like to mention one other matter which is not exactly germane to the amendment but which concerns the section—the question of compensation for collections of postage stamps. I can make some claim to speak in regard to that matter because I happen to be associated with the Irish Philatelic Society. I can assure the Minister that there are people with collections of stamps who have no other wealth in the world. I know people living in humble lodgings who have collections of stamps value for perhaps hundreds of pounds. Claims in respect of these collections would be precluded under Section 8 (3).
They would.
Are they adhesive stamps?
Some of them might be adhesive. Those which were used would not, of course, be adhesive. I know people who, because they are burdened, like many of us, with family responsibilities, have no other wealth but these collections of stamps. They have built up a property in this hobby, and it is entirely inequitable that they should be precluded from compensation for the loss of these collections of stamps. I hope the Minister will give further consideration to this matter and that an opportunity will be afforded to bring in an amendment on Report.
Perhaps Senator Brennan will tell us whether postage stamps are ordinarily excluded by insurance companies from their policies? I was informed by an insurance company that they were. That was got over by providing them specifically. I feel that it would be necessary to put in a specific section in this Bill to deal with them.
It is possible in an insurance policy specifically to cover a collection of postage stamps. It should also be possible in the section to provide for philatelic collections, as distinct from ordinary postage stamps, used from day to day, which could not readily be checked.
On the section are we to take it that the Minister will consider all of (a)?
Yes.
Mr. Lynch
I move amendment No. 7:—
In sub-section (1), page 7, line 48, to delete the words "on the site of the injured building".
This section deals with compensation for injury to buildings. It establishes a condition with regard to reinstatement, to the effect that the rebuilding shall take place on the site of the injured building. It is difficult to see why there should be a section of this character in the Bill, because the destruction of such property might quite easily provide an advantage in regard to future town planning. The destruction of property on such a site might have only forestalled what the local authority already had in view with regard to improving the area concerned from the point of view of town planning. The insertion of this definite regulation, obliging the persons concerned to place the new building on the site of the injured building, would seem to me to cut across what, possibly, or even probably, might be done by the local authority. A good deal of town planning has been done in recent years, and I think that this obligation, to rebuild on the site, should be deleted, so that the local authority would have an opportunity, if it so desired, of altering or rearranging the property to suit any town planning ideas which it might possess. Powers are given, under Section 10, to deal with matters of that character, and it is difficult to understand why the owner of such property should be tied up in this way under this section. For the reasons I have given, we think that the section would be better if the phrase "on the site of the injured building" were deleted.
The phrase "on the site of the injured building" was put in there for the purpose of preventing an eye-sore: to prevent the site being left there interminably and becoming an eye-sore. There is full power, under legislation passed last year, for the local authority to take over derelict sites, and there is also power, under this Bill, for the Minister to take over such sites. It was at the suggestion of the Dublin Corporation, who wanted certain powers in this regard, that we have arranged for that matter in the Schedule to this Bill. That is why there is that specific phrase in the section, binding the person concerned to erect a new building on the site of the injured building.
Under sub-section (2) of Section 9— which is on the next page of the Bill— the Minister is given power to waive that condition where he is satisfied that there is a reasonable case made for its waiving. Accordingly, it is not copper-fast that the house must be built on the site of the injured building. The Minister has power to deal with that, and the local authority also has power to deal with the site, at any rate, where it is within a town planning area.
Mr. Lynch
It was sub-section (2) of Section 9 that I intended to refer to. Do I understand the Minister to say that the power given to him, under Section 9 (2), to waive this particular condition, would cover the provision in Section 9 (1) (a)? It seems to me that the phrase used in Section 9 (1) (a) is mandatory and that, as long as it stands, it would prohibit the power given to the Minister under sub-section (2) of the section.
No.
Surely not.
No. That is why sub-section (2) was put in: in order to do away with the "mandatoriness" if I might use the word, of the provision.
That may be so, but I am rather puzzled by sub-section (2), which appears to me to refer only to compensation awarded by the court.
If it is compensation awarded by the Minister, he has full power to do what he likes.
That is just the point I wanted to raise. There is something contradictory and puzzling to me about the general conditions, and the powers that the Minister has got under sub-section (1) of the section. I want to know whether the previous powers over-rule sub-section (1). I doubt it. It is certainly a very abstruse point, in connection with which I can see half a dozen lawyers taking sides before it could be decided upon. I think it might be well to have the matter cleared up now. This condition with regard to reinstatement is one on which we ought to be clear. There is another point to which I should like to refer. What happens in the case of a man who has not enough money to reinstate in accordance with the terms of the section?
There are two ways by which such a person would not be able to build. One, of course, is the fact that he has no money at the moment and also has accumulated certain debts. Another reason is that he may have accumulated certain debts to the State. Under Section 14, the State, having awarded compensation, may proceed to take away what the State decides it is entitled to, regardless of the fact that, in the meantime, debts have accumulated because the individual concerned had no money to live on. Possibly, and even probably, between the time the damage takes place, the time the compensation award is made, and the time that the individual concerned actually gets the money, the question of rebuilding on the same site will have become extremely difficult. Before giving the person his money, the State is going to take away taxes that may have accumulated in the meantime, and I am sure the Minister understands that it is quite possible for a man to be liable for income-tax in such cases, even though he actually has no income. It seems to me, therefore, that there is a flaw there, and I am not satisfied that the difficulty is met. A person might find himself actually unable to rebuild on the site with the compensation given to him. Of course, I believe it is right that he should be forced to spend all the compensation given to him in creating as good a building as the former one, but I think it is wrong to apply that condition in the case of a poor man, who has no other assets, and to make him do something that might involve a substantial amount of borrowing. I think that is a mistake. It is right that he should not be allowed to go off and leave the site derelict, but at the same time I think it is going too far to say that he cannot have the compensation unless he himself builds on the actual site.
Mr. Lynch
I move amendment No. 8:—
Before sub-section (2), page 8, to insert the following new sub-section:—
(2) Where the amount of the compensation payable under the next preceding sub-section of this section is less than 90 per cent. of the estimated cost of complying with the reinstatement condition the following provisions shall apply, that is to say, the person to whom such compensation is payable shall be released from the said reinstatement condition at the option of such person and the Minister shall, on being informed that such person desires to exercise such option, pay to such person the amount of the compensation so payable.
In some of these cases the cost of reinstatement will be infinitely greater than the amount of the award. In such cases a serious difficulty would arise. Take for instance the case of a poor person who would have no assets other than what he got by way of compensation. Let us suppose that the selling value of the house before it was destroyed was £350. It is hardly likely, under modern conditions, that the house could be replaced for anything like that sum. Its replacement would probably cost double the sum. In that particular case and in all cases where the compensation is less than 90 per cent. of the estimated cost of complying with the reinstatement conditions, the obligation to reinstate should be waived. It is a practical impossibility for persons so financially situated to comply with the reinstatement conditions and in all such cases I submit that the reinstatement conditions should be waived.
I cannot see that there is any case for the amendment proposed by Senator Lynch. I take it that the Senator does not suggest that a person should be put in a better position because his house has been damaged than before it was damaged. What we should like to aim at is to put him back in as good a position as he was before the damage was done. The Senator's proposition would have an entirely different effect. Undoubtedly it would cost more to build a house now, if it is possible to build at all in these times. It would cost more to build any of those houses on the North Strand or the South Circular Road than it cost when they were first built but the compensation will be based on the market value of the house, and the market value of any of these houses that have been bombed in North and South Dublin is very different from what it was 34, 40 or 50 years ago when they were first built. It may have cost only £300 or £500 to build one of those houses 40 years ago but its market value immediately before the bombing was considerably above that figure. I take it that the valuation for compensation purposes will be the market value.
As the value of house property has been tending, recently, to my own knowledge, I doubt very much if the amount of compensation will go anywhere near restoring a building of the same type as the one destroyed. I cannot at all agree with the Minister that compensation based on market value will be sufficient to enable the owner to restore the building. I think he has only to look up the prices at which such buildings have been sold in the market recently to appreciate that point.
Is there anything in the Bill to say that the amount of compensation will be based on the market value as distinct from reinstatement value? That is a point of very great importance in regard to insurance. In some cases the reinstatement value would be less than the market value but in the majority of cases the reinstatement value would be higher than the market value. When you are dealing with a matter of this kind you have got to say exactly what you want. We do not want the individual to be any better off than he would be if he had not suffered this damage.
We want him to be as well off.
As far as buildings are concerned we want him to be as well off. I do not accept that he will be as well off in regard to other sections of the Bill. We also want to have something in the Bill which will ensure that the amenities of a district will be maintained for other people. If the premises were of a certain standard before the damage was inflicted, it is understood that they are to be reconstructed to something of a similar standard. If the market value happens to be much less than the reinstatement value, the standard of the reinstated building will probably be much lower than that of the building destroyed.
Is it the Minister's point that compensation will be awarded on the basis of market value and not on the basis of replacement value?
I take it that the market value of the premises would be the basis of compensation.
Suppose a man were awarded the market value by way of compensation, and that the cost of reinstatement were double that, what would be the position if the man had not the necessary capital to rebuild? Will he or will he not receive compensation?
Mr. Hayes
He may.
As has been explained the increased value of the house in recent years will be normally taken into consideration and the man will thereby be given compensation for the actual value of the house at the time the damage occurred, regardless of what it may cost to rebuild the house. If compensation were to be paid on the estimated cost of building under the reinstatement condition, a man would not know where he would be because if he looked for estimates he would probably get three or four from different people showing variations of almost 100 per cent.
I have an actual case before me, that of a craftsman who bought a house for £400. The market value of that house would be £400. That house has been destroyed and apparently this man cannot get compensation to the amount of £400 until he has restored the house, that is to say, until he builds a new house of a similar kind which it is estimated would cost about £800. If he cannot afford to expend £800 on the house does his claim go by default?
No, he will certainly be paid on the market value of the damaged house. Anybody who receives £400 compensation and who wants to build a bigger house, will find that there are places where he can get accommodation to enable him to build such a house.
If he has to acquire a new house which will suit his purposes as well as the one destroyed, he obviously will not be able to do that on an award of £400.
He will get the market value on his claim for compensation.
The market value of the house?
Yes.
That means that the man will never be able to acquire a house for himself and his family with the amount he is allowed. He will not get any house for £400. The house he was living in met his requirements. The amount he will get will not enable him to procure a house for himself and his family. He and people like him will suffer a great deal. It means that they will have to go into a tenement or a corporation house, when their whole desire is to own a house of their own.
I have some experience of this in the past. What I understand, and what it ought to be, is that the engineers or architects will survey the place and make an estimate of the replacement cost of a house of the same size in every way. That should be the amount of the award—the cost of a house of the same size. If the owner of that house has money and wishes to have a better house, he may expend more money on the house and make it a bigger and a better one; but at least the amount of the award should be expended on the building, and the amount of the award should be such as would produce a building similar in size in every way.
I think there is a great deal in what Senator Honan says, but it is not in the Bill. It very definitely is not there. If he will read sub-section (b) he will see perfectly plainly that that is specifically excluded. As to what is just, it seems to me it will not be just to carry out Section 9 (b), which applies in the case of a decision by the court. Section 9 (b), if I understand it rightly, is that the court will find out what is the cost of the reinstatement, as set out by Senator Honan. They will then proceed to deduct from that the difference between what they regard as the price of the building as reinstated and the price of the building in the condition in which it was before it was damaged. That might put the man in a position which would be unfair. If there is a reinstatement clause, as there must be when it is a case before the court, he will not get any money at all unless he can borrow money to help him to rebuild. If Section 9 (b) is applied to him, and he is unable to borrow that money, I think he will be in the position which Senator Foran outlines, that he cannot get any house at all.
As to what I regard as fair and just, I do not think that the man should have a better house; but I think that a house similar in size should be constructed for him, or he should be given the money to construct it. In all probability, in certain districts, possibly in the North Strand, its market value one week after being built may be £100 or £200 less than the cost of reinstatement. But we are not now dealing with contracts between the Government and contractors. We are dealing with a Neutrality Bill for war damage to property in a neutral State. It is not a matter of applying strict, rigid rules in regard to what might arise if there were damage of a very widespread nature when the State could not afford to treat people in an adequate manner. I think it is perfectly fair that the relatively few persons, taking the population of Éire as a whole, who, while we remain neutral, will suffer damage, should at any rate get a house of the same size as before, even if it costs a little more to rebuild that house than its market value was at the time of the bombing. Otherwise you will find people not only with just a grievance against the State, but with a permanent grievance against us all, because we were not prepared to share the loss in these absolutely abnormal circumstances.
Generally speaking, I have been against increased taxation and increased expenditure, but when it comes to the whole community sharing in the damage in circumstances of this kind, I think the Government would have no difficulty in justifying the specific taxes which would be necessitated by that. At the moment we do not see any danger of its being a large sum. I recognise, as the Minister may have recognised, that things might change, and it might be a very much larger sum. Nevertheless, I think he would be able to stand over it much more than any Government could stand over the fact that we treated people meanly and they were unable to get a house. What I want to emphasise is that there must be a reinstatement clause if it goes to the court. Therefore, if persons cannot get sufficient money to carry that out, they may not get any money at all.
I want to ask the Minister another question. If the Minister refuses any payment and the applicant goes to the court, that will be clearly a case of an award by the court. But, if the Minister offers a sum and there is an appeal and the court reaffirms the Minister, is that a case of an award by the court? If it is, then I was right in drawing attention to the fact that the general conditions which were in the earlier sections of the Bill might be affected by Section 9. If, on the other hand, once the Minister has made an offer and there is an appeal, that does not bring the case under Section 9, what I said before was inaccurate. I did not make myself clear at the time. I assumed, and I am inclined to think, that once a case comes before the court and there has been a decision, it may be held to come under Section 9. I think that should be considered. I do not want an immediate answer.
Is the Minister prepared to do anything in regard to this section?
I do not see that there is any necessity. If I thought there was really a necessity for making some provision of that kind, I would be prepared to do it. I want to be reasonable in that matter. I want to give the persons back the type of house, shop or factory that they had before. If what is here does not succeed in making that certain, I will examine it again and try to make that absolutely certain.
That is all we can ask for at this stage.
Senator Douglas raised a point which I think is worthy of consideration from the point of view of the scheme of the Bill. As I understand it, the person makes an application to the Minister and the Minister may make an offer to the applicant. That offer may be wholly without conditions. The Minister may say to the applicant: "You have lost a house; I will give you £400 without conditions and you need not reinstate it". The question of conditions, if it goes no further, arises simply between them.
If the applicant is not satisfied with the Minister's offer and appeals to the court, then Section 9 places certain obligations on the court when it makes an award that were not on the Minister when making the offer. I think that is correct. That is to say, if I am an applicant and the Minister offers me £500 and I will not take it, the court may refuse to vary the amount granted by the Minister. If the court refuses to vary the amount offered by the Minister, does the court make an award for the purposes of Section 9 (1)? Does it make an award and, if it does, is the court obliged to put in a reinstatement condition? If the court increases the Minister's offer to the applicant, then the court is bound to insert a condition. There is no doubt that if the court increases the amount offered by the Minister then that is the compensation awarded by the court. I am far from being a practising lawyer but I know enough about law and lawyers to know that that may not be certain. If the amount offered by the Minister is varied is the reinstatement clause compulsorily inserted? If anyone goes to court does he at once incur the punishment of having a reinstatement clause inserted? I am inclined to think that sub-section (2) gives free power to the Minister to consult with the applicant, and to let him off the reinstatement condition is sound. That is sound power for the Minister to have. The court is compelled to put in the reinstatement clause but the Minister later can reconsider the condition.
That is the position.
I hope the Minister has that power in spite of sub-section (1). Sub-section (1) (b) reads:—
the amount of the compensation shall not exceed the cost of compliance with the reinstatement condition less the amount (if any) by which, in the opinion of the court, the price of the building as reinstated would by reason of the reinstatement exceed the price of the building in the condition in which it was immediately before it was injured, the price in each case being estimated according to normal market conditions as at the date of the award and on the basis of a sale of the fee simple interest in the building;
I wonder what is the meaning of the word "price" there? Does it mean market value? If it does not mean market value it should say so.
The price in each case shall be the normal market value.
Yes. It continues to make it clear that price means market value. There may be a necessity for amendment of this section afterwards, because the position we are in now is quite different from what the position was when the 1923 Act was passed. At that time materials were available and there was anxiety on the part of the Government and of local authorities to start employment. As a matter of fact prices were falling then, as it was just after the war. The position now is that if a person gets an award, accompanied by a reinstatement condition, supplies are scarce and dear and, in some cases, it is impossible to get them. It is difficult to get putty, plumbers find difficulty in getting solder and it is impossible to get timber. It may happen that the amount of the market value awarded an applicant will, when the time comes that he is in a position to rebuild the house, prove more inadequate than the court or the Minister dreamt of. I put it to the Minister that that should be taken into consideration. I do not think he can do so by any method except by a new Bill. It is clear that what is intended is to give a person a house as good as he had before, but not better.
I move amendment No. 10:—
In sub-section (2), before the word "compensation" in line 57, to insert the word "full".
People have told me, and from my own observation I believe, that the section as it now stands, if passed, would be unjust to them, as they have actually suffered, and are continuing to suffer, loss on account of their houses being destroyed or badly damaged. Even people who have been able to return to their homes, after the necessary repairs were carried out, have already incurred expenditure that far exceeds £50, both on the North Strand, Rathdown Park, and other places. I consider that some of these people will be out of their homes for at least two or three years, and that is why I am asking that they should receive full compensation. That would be only fair to people who, undoubtedly, have suffered great loss in ways that cannot be covered by other legislation. At least they should get full compensation to cover the expense of alternative accommodation, for furniture, and removal to their present residence.
Again, as the Minister for Finance, I should like to be fair, reasonable and just, but I do not think it is expected of me to be generous when dealing with the public purse. It was suggested in the Dáil that there was one case where a person estimated that £100 was expended in changing residence, getting furniture removed, and paying additional cost of housing accommodation for a period. As far as the details are concerned, I have only had a few cases put before me, but I know of no case except the one mentioned in the Dáil where the estimated cost was £100. I put in a maximum of £30 at first, but in the Dáil, when representations were made, I raised the amount to £50. I would rather not be unreasonable nor unjust, but to put in a clause which would leave the Exchequer open to any claim without limit is something that it would be dangerous to contemplate. I know that it is not a popular role to stand up to defend the Exchequer, but that is my particular responsibility. While I would like to be fair, and to meet these people as far as I could, and to see that their actual out-of-pocket expenses would be paid that is as far as I would be prepared to go. To leave the section without a limit of any kind is something that would not be reasonable. I know that it will be said that these people ought to be compensated. Well, we cannot afford, even if we could, to contemplate compensating them for much of the loss and damage they have sustained. I know that in many cases it would not be possible to compensate them with money, and while I would like to be reasonable, and above all to be just, I do not think I can afford to be generous.
Why not split the difference and make it £75?
I would like to take the Minister at his own word and debate this solely on the question that he has to defend the Exchequer and that it is his duty to be just and not generous. That should be accepted by this House, and then the only question we have to discuss is what is just, and the difference between us can be only on what is just. To my mind, it is not justice to provide £50 in the case of a couple of people in lodgings, and, if they can prove £50, to pay it to them; and if a person with a large family can prove £100 or £120, to say that they will not get it. The Minister says there would be no limit.
I did not say that.
He suggested that, under this amendment, there might be no limit. There is the limit of proof. I do not propose—and I do not believe Senator Miss Kennedy intended to propose—that one should not get proof for what is paid. This is a Bill on which I feel strongly, on account of the number of people I have met and the previous experience I have had. I think the Minister knows that I had a great deal of personal experience 20 years ago as regards damage, and a very large number of people came to me. It is for that reason that I am taking as much part in the debate on this Bill, in which I have no personal interest. Justice cannot be met by £50 or £75. It can be met by going to the trouble of examining every claim. Again, I have had experience of that. An insurance policy with which I was dealing contained a provision for a certain rent for a certain period and certain incidental expenses, and I can assure the Minister that, if he has no officials who know how to see rigidly that that limit is not exceeded, an insurance company can provide him with officials who know how to see that too much is not paid. I can introduce him to some of them. There is no tendency on the part of the insurance companies to pay out money without proof.
All we are asking is that compensation should be paid where there is proof. The Minister is saying that he will get claims that have not proof and that he will be unable to resist them unless there is a limit in the Bill. I think that is a reasonable interpretation of what he said. If it were a case of general compensation following war damage, I would admit that he might have to take an arbitrary figure through sheer necessity. One difficulty I can see about Senator Miss Kennedy's amendment is the difficulty I see about this particular section— that is, that it provides for consequential compensation only in one type of case, that of a person whose home is destroyed and who happened to live in it at that time. I am not opposing the amendment at all: I support it. It seems to me, however, that the great flaw in this Bill—and which will be found out afterwards, particularly if there is further bombing—is the great injustice with regard to business premises, where there is to be no consequential compensation whatsoever.
I want to put two types of case before the Minister. I am speaking with knowledge and will show him the kind of business that might have been affected. I am not taking a business that has been affected by the previous bombing, but a possible one of which I have knowledge, and I know that there are somewhat similar cases that might come up for compensation later on. Take the case of a shop employing from 15 to 30 persons, insured against fire and covered by a loss of profits policy with provisions for the maintenance of its employees and for the actual loss of profits as compared with the previous year. Admittedly, it must pay a substantial premium for that insurance. When the place is destroyed it is possible immediately to obtain a grant for the rent of premises elsewhere. In the meantime, the employees absolutely necessary for carrying on the business and buying other goods can be paid and the business can start again very soon. The commonest form of loss of profits insurance is for a period of nine months after the date of the fire, but it can be up to 18 months. I was advised that nine months is most usual, though some people take the risk of six months and others go to 12, which also is not unusual.
In that case the damage is by fire, and very substantial consequential damage is paid. It is strictly limited. You cannot say simply that you had consequential damage of any character because of the fire, but if you can show that it was consequential putting the place back again to where it was before, and re-employing employees and getting the business started and paying bank charges or debenture charges—though not dividend charges— which are the first charges on the business and which must be met. All this can be provided. A very large number of businesses in Dublin are so insured, and that has been so for a very considerable time. That is the position in which most business houses find themselves in the case of an ordinary fire. If they are destroyed by a bomb, what is the position? The State will rebuild the premises. It will compensate them for stock, fixtures and fittings or other tangible and material parts of the business. We need not deal with jewellery now. As the Bill stands, they will lose their daily receipts, which might be anything from £50 to £500, according to the type of business; because that will be cash unless it is dealt with in a later amendment.
From the time of the destruction until the premises are rebuilt and new stock put in there will be no payment, where there is a reinstatement condition, until the work has been done partially—three or four years may elapse, and the owner of that business, or the persons responsible for it, will have nothing to live on. All that time they will be liable for the bank overdraft. The Minister will bear out that most businesses of that kind have to use a bank overdraft from time to time, and it is quite likely that they would have one at the time of the bombing. They must meet debentures, if any, ground rents and rents. It depends on the contract under which the people hold the business premises and, in most business premises, that is the case as regards rent, while it does not hold, or is rare, in the case of ordinary houses. All that must be met for two or three years, until they can be reinstated. What is the man to do in the meantime? His only possible course is to borrow as far as he can and to live as cheaply as possible in the meantime. If he borrows against the compensation, when the money is paid, he will have to take out of it the consequential loss or, at any rate, as much of it as was necessary for himself and his family to live in the meantime. His employees will be thrown out— though, presumably, they will be entitled to the dole—on account of this bombing.
I can appreciate the desire of the Minister to limit consequential damage compensation, but it is morally wrong for those of us who sit here and whose premises were not destroyed to say to those in our own city, as it is with many of us here—and as it may be with other Senators later on—that the best we can do in any bombing is to put back the premises and stock within two or three years and in the meantime, "God help you." Is that a fair or a right attitude to take under these circumstances? I can understand, in the case of general war damage, the Government having to say—as was virtually said in Britain—that they will provide for a certain minimum of claims in the meantime and that, at the end of the war, they will do the best they can for everybody. If we should have the misfortune to get into this war, that is probably the only attitude the Government of the day could have to this matter. However, that is not the position now, and the sub-title to this Bill shows that that is not so. I think some day we will be sorry, if the Government does not decide to provide some consequential compensation in the case of business premises, and, in the case of private houses, and if they are not prepared to withdraw that limit, as specifically proposed in this amendment. I have no objection to the Minister insisting on proof before claims are met.
In this case there would be no excuse that there was not proof, because anything that is expended will have been expended since the bombing, and it should be comparatively easy to prove that expenditure. There will not be the same difficulty as in the case of jewellery and antiques, to which the Minister referred, that might be 100 years old. In this case we are dealing only with expenditure in the last few months, and if this Bill were passed it would mean that, as far as the future is concerned, the people would know to be extremely careful with regard to their expenditure to see that they keep a proper record of it. I would urge the Minister to take the plunge in this case. I am not urging him on the grounds that he should not look after the Exchequer; I am urging him on the grounds that justice cannot be done by fixing that limit, irrespective of whether you are dealing with the claims of a large number of persons or of a limited number of persons, the claims of rich persons or of poor persons. The limit of £50 might be fair enough in the case of a rich person. Very often, the incidental expenses of moving are heavier in the case of a poor person than they are in the case of a rich person, who has plenty of relatives.
The Minister's reply that in refusing the amendment he is doing an unpopular thing struck me as somewhat peculiar. I think the experience of all of us is that when the Minister is found particularly parsimonious with regard to spendings from the public purse he meets with loud and prolonged applause. I think that, under cover of the defence which he made, he managed, as they say in law, to misdirect himself. I submit, with all respect, that the Minister has misdirected himself in drawing a distinction here between justice and generosity. After all, what is this Bill in essence but a measure of generosity? It is charity rather than mere justice. It is the coming of the State to the relief of persons who, because of our neutrality, have suffered from a particular enemy's attack. If it is defensible—and, of course, it is obviously defensible—that the money of the State be expended in coming to the relief of people who have thus suffered, the practical question is: to what extent shall relief be granted in each case? We have been debating, in the earlier part of the session, the difficulties of assessing accurately what should or might be given to claimants, but here is a type of claim about which there is very little room for doubt. I am familiar with insurance to provide against the very kind of accident which the proposer of the amendment had in view, and if my house were burned, and I had to take other premises until such time as it was rebuilt, I would be insured against the amount disbursed in moving into the other premises, and against the rent and other incidental payments in regard to those temporary premises. That sort of risk is provided for by all the insurance companies. I would not insure a house and its contents without such an item. As a matter of fact, I have at the present moment an insurance for two houses containing that stipulation.
The amount here is limited to £50. Why £50? I presume that £50 is a calculation of the average expense in cases such as this. But surely this is the sort of case that we should take on its merits, because we are trying to come to the relief of particular victims, not to the relief of the population at large but to the relief of particular victims who have suffered in a particular way, and if, in the case of one or two, the loss accruing in the getting of other housing accommodation happens to be greater than the average, it is easy for anyone to make inquiries and discover whether the excess was due to culpability or negligence or improvidence or any other such reasons. Always, in support of the application, receipts or other evidence of the disbursements should be forthcoming. Instead of stating that the compensation will be limited to £50, it is a simple thing to state that the applicant will receive compensation for such expenditure as he is able to establish as having been necessary in his case. I suggest, with all respect, that the Minister is so determined to show that, in his official capacity, he is the reverse of the benevolent Seán T. O Ceallaigh, he has allowed himself to speak in haste.
I have had some experience in this matter, and I think the greatest difficulty and the greatest loss may arise in the case of those who conduct business premises, because I know that at the time of the Anglo-Irish war it took four or five years before business premises were put back so that the business could be restarted. There were no consequential damages allowed by the Shaw Commission, with the result that whatever award was made was used up before the person had started business again. The awards were made under three headings. One was for rebuilding the premises. That usually went to the landlord, and in those cases they found it necessary to have a compulsory clause of reinstatement, because some landlords put the money in their pockets and did not rebuild the premises at all. The second heading covered furniture and fittings, while the third dealt with shop goods and so on. Those who had no other means of living but their business, and were four or five years out of business, had to give a lien to the bank on the award that would eventually come their way.
The result was that the man who conducted the business and his family had to live for those four or five years on the value of their furniture and stock and by the time the premises were rebuilt and he was reinstated and ready to start business, he had no capital at all. He had neither furniture nor capital. It was all eaten up in the meantime. Therefore, I would not wish the same thing to happen again to any unfortunate man who happened to be in business and whose business was wiped out. Certainly, if he is entitled to anything at all, he is entitled to compensation for consequential damage which would maintain him during the period he is thrown out of business. In that way he would not have to start, as many people started after the award by the Shaw Commission, without stock or capital. They started without any money and every one of them was broken before he was two years in business. I think such a state of affairs should not occur again, if it is possible to avoid it within the limits of State resources.
I would like to draw the attention of the Minister to the fact that there is no provision for loss of wages, as consequential damage. That is a loss which can very easily occur and people would be injured and damnified by such loss. If loss of property is to be compensated for, then provision should be made for loss of wages sustained where a factory or shop is destroyed. The section apparently rules out any such consequential damages.
Taking the amendment by itself, it appears to me to be eminently reasonable and it appears to me to fulfil the conditions which the Minister himself said were necessary, namely, that we should be fair without being generous. The sub-section which Senator Miss Kennedy is trying to amend provides for consequential loss of one kind and of one kind only, that is, the cost of the provision of housing accommodation for the family or business and the removal or storage of any movable article. It makes no provision for any other kind of consequential loss following upon a bombing. It is quite clear that to put a maximum of £50 to that kind of compensation is to weight the scale against people who are married, with families, and who, in the conditions which obtain at the present moment, may be quite a long time in temporary accommodation—at the very least, I should think a year. The £50 is very small. I should like the House to get it clear that we are not asking the Minister to shovel out money to people who have no claim to it. What is being asked is that where people have incurred reasonable expenditure — because the word "expenditure" here, I think, would have to be construed as reasonable expenditure—and where the Minister is satisfied that it has been incurred and reasonably incurred, then he should pay whatever the amount is.
If you make a limit of £50 then, in the case of a single man, he will get every single penny that he lost. In the case of a married man with five or six children living on a particular scale, he will not get anything at all like the amount he was out of pocket. So that, in fairness and justice, with no regard whatever to generosity, I think the full compensation should be paid, that is, full compensation on a case that has been made to the Minister, remember, not full compensation as the applicant conceives it. It is full compensation as the Minister decides it after examining the facts, with the recourse of appeal to the court. Everybody knows that the courts are clearly biased against people who make unreasonable claims. Apart from this particular kind of compensation, of course, on the section generally quite a number of things arise. Senator Lynch has mentioned wages. To some extent, at any rate, it is quite clear that loss of wages ought to be met. It will be met to some extent by unemployment insurance, but this particular class of person should be met to a greater extent than unemployment insurance meets him. I wonder whether the Minister could tell us whether we ought to deal with the section now or keep to the amendment. There is the question of rates and ground rent, for example, arising on this consequential loss question. That perhaps should be brought into the section in general but, as far as this particular matter of moving house is concerned, surely it should be compensated for, again, on the same basis that the insurance companies use. The limit of £50 simply means that some people will get full compensation; other people will get something very very short of what is full compensation for what they had to expend.
I say again to the House, it is not my nature to be mean. I do not know whether Senators will accept that or not.
We accept that.
But I have to fight like the devil every day to defend the Exchequer against all sorts of demands made on it and, frequently, unreasonable demands. I do not say that the demands being made now are unreasonable. I do not say that at all. I do not want to go over it again, but I would like, within reason, to be just. I would be prepared to accept the words Senator Hayes has used on this amendment and amend this section to this extent, so that it would read as follows:—
...or for his business or on the removal or storage of any movable article, compensation may be awarded under this Act in respect of such expenditure as the Minister shall be satisfied has been reasonably incurred.
That would be a great improvement I think—without the £50?
Yes—to delete those words.
We will have to leave it to the Minister, of course, to frame it properly.
I took down Senator Hayes's words—"as the Minister shall be satisfied has been reasonably incurred."
I think that is really all we are asking for. There is no desire to assist anybody in making something out of this.
I take it that is what Senator Miss Kennedy wants. She merely wants people to get from the Minister what they can prove they have reasonably incurred. I take it the Minister does not propose to put the words in now but to introduce them at a later stage?
Yes.
The words "may incur" may arise.
Would the Senator suggest expended—"as being reasonably expended"?
That is not really my point. What will be the position of a man who is still liable for rent? It may arise here. There may be a difference between the man who pays rent in advance and the man who pays it afterwards. It is a small point. I mention it to assist the Minister, not for the purpose of raising an awkward point. If the man pays the rent in advance it would be expended at the time of the claim. If he did not pay it in advance it would not be. There are other similar things.
Leas-Chathaoirleach
Is the amendment being withdrawn?
In view of the Minister's assurance, I wish to withdraw the amendment.
I move amendment No. 12:—
At the end of the section to add a new sub-section (3) as follows:—
(3) Necessary painting and decoration shall not for the purposes of this section be reckoned as consequential loss.
I have been approached by quite a number of people on this question of the painting and decoration. Since the bombing occurred practically everybody who has been affected has been wondering what is going to happen and what will the Corporation or the Government do. I know the Minister said he thought the question of painting and decorating could be met under this Bill. Can he give me any assurance as to the way in which necessary painting and decorating will be included? Will it be a question of the people getting the work done and sending in the bill, or will a certain amount be allotted to each person and will that person be allowed to expend it in any way he wishes? I should like to have the whole position definitely outlined in the Bill, so that there will not be any difficulty later with regard to its interpretation.
It was not the intention to include necessary repairs, papering, painting, and decorating as a consequential loss. I took it that all that would be provided for in the restoring of the house so as to make it habitable. That intention was conveyed to those who were carrying out the repairs. Whether it was acted upon or not, I do not know. That is my intention—that repairs should include painting, papering and decorating, so as to make the house habitable.
I think Senator Miss Kennedy is under a misapprehension in this case. She would lose, not gain, by the amendment. Where a house is rebuilt, or there is reinstatement, all painting and decoration is included. Where it is a question of repairs, in so far as there are repairs they must be included in any claim. If you brought them in as consequential loss they would be in a weaker position. As the Bill stands, they are now a legitimate and full claim.
I am quite satisfied, now that the Minister has given the assurance that these are included in necessary repairs. There was a considerable amount of doubt on the matter, particularly with regard to painting and decorating. Some people got work of that character done by private contractors and they had some doubt as to how they stood.
That was my intention, that they should be included. I consulted the draftsman as to whether, from the legal standpoint, they would be included, and he said the amendment was unnecessary.
Can people get the work done and then claim for the amount expended?
They had better take the matter up with the city manager.
Or consult their lawyers?
Perhaps their lawyers would be the best persons to consult.
Mr. Lynch
I move amendment No. 13:—
Before Section 11, to insert a new section as follows:—
11. Where the occupier of a building which sustained an injury to which this Act applies was compelled by reason of such injury to vacate such building the following provisions shall apply and have effect, that is to say:—
(a) if the building was entirely demolished such occupier shall not be liable for the payment of rates or rent from the date of the injury to such premises until the building has been rebuilt; and
(b) in any other case such occupier shall not be liable for the payment of rates or rent from the date of the injury to such premises until the said premises are rendered fit for habitation;
and the provisions of this Act shall be construed accordingly.
This amendment relates to the vacation of a building which sustains injury. If the building is entirely demolished, I submit that the occupier should not be liable for rates or rent until the place has been rebuilt, and where damage has been caused he should not be liable for rates or rent until the place is rendered fit for habitation. It seems inequitable that the occupier should be made liable for rates or rent where a building has had to be vacated by reason of its destruction. In the case of a shop, the occupier is being deprived of his means of livelihood by the destruction of the premises and it is extremely difficult, if not impossible, for him to meet his rates or rent.
This Bill sets out to provide for distress caused by circumstances over which the occupant of a house had no control, and, when compensation for distress is being given in many other ways from the public purse, there is no reason why some provision should not be made in this Bill for distress where damage has been caused through circumstances over which nobody in this country has any control. I refer now to the destruction of cattle through circumstances over which the farmer has no control, namely, foot-and-mouth disease, and compensation is provided for the loss of beasts. Here no such provision is made in the particular circumstances to which this Bill refers. It may be said that, a person having contracted to pay rent, although the property is gone, the contractual obligation still rests on that person's shoulders to meet the rent and that contractual obligation must be observed.
In the case of the payment of rates, there is a citizen's responsibility, and that must be met. Overriding the contractual and the citizen's obligation, there is a point in relation to distress and the incapacity of the person whose place has been damaged or demolished to meet his financial obligations. Having regard to all these circumstances, where it can be shown, to the satisfaction of the Minister, that the person has been badly affected through the loss or damage of his property, he should be rendered immune from these charges, and these circumstances should be provided for by the non-levying of the rates and the remission of the rent because of the incapacity of the person to meet these financial obligations.
I think there should be some discrimination between an occupation rent and a ground rent. The occupation rent is what the person pays for the use of the house. In the case of the ground rent, I feel that if that is not paid, the ground landlord has a right of lien on the compensation for his ground rent. In England the practice is that the occupation rents are not being paid, but ground rents are. If the ground rents are not paid, I understand the ground landlord can place himself in a position to claim the compensation. That seems to be equitable.
It seems to me that this is one of the forms of consequential loss that, generally, I have decided to rule out. I think it is true, in Dublin and elsewhere, with regard to local authorities, that if a building has been unoccupied—supposing it has not been blown down or has not disappeared, but has been unoccupied because of the bombing—the rates have not been and will not be demanded. That, I understand, is the practice. So far as ground rents are concerned, these are contractual obligations between the landlord and tenant. First of all, there are consequential losses, and, secondly, there are private contractual obligations, and if there is to be interference with these, it ought to be done in some way by amending the Landlord and Tenant Act.
With regard to rates, remissions of rates for certain purposes were agreed to by the Oireachtas at different times, and I understand that one of these remission of rates Acts will be falling in very soon. If the Government decide to seek a renewal of that Act, I would be prepared to suggest to the Minister that he should take into consideration such property as has been damaged to an extent which makes it unoccupyable, or which has disappeared, and that rates should not be payable on it. As to ground rents and these other rents, I think that, if they are to be compensated for at all, they should not come into this Bill. I would certainly regard these as a form of consequential loss, and to compensate for them would be to make a distinction between that form of consequential loss and other forms for which we have not agreed to provide compensation. In the case of foot-and-mouth disease referred to by Senator Lynch, it is the owner's property which is destroyed and for which he is compensated, but he is not allowed to restock his lands for six months or maybe longer afterwards, and he is not paid for any of the consequential loss arising from that fact.
May I suggest that the position is that if premises are occupied for any part of the rateable year, the tenant is legally bound, if the authority desires to press him, to pay the rates for the whole year?
That is in relation to some local authorities, not all.
I was informed that what Senator Honan said was the legal position but that the practice in some areas was not to claim the full legal liability. I am convinced that, in this case, it would be almost inconceivable that you should press for payment of rates. Whatever way it is done, I cannot see it being done by the local authority here. I am not at all so clear on the question of rent about which I see very great difficulties, because it means somebody's gain and somebody else's loss. If you will not pay any consequential damage, it is not at all clear whether we should step in and say that what AB would lose must be lost by CD, because that is what you are doing if you say that they are not to be liable for rent, whether it be an occupational rent or a ground rent. What I urge on the Minister is that, so long as he will not agree to compensation for consequential damage, he should bring in something to provide for what, in effect, is a moratorium and say: whereas I am not prepared to say that the liability for rent ought not to be met out of the ultimate payment, I should like a provision whereby, if I were a landlord, I could not sue a person until he got compensation. I want to protect people so that these liabilities which still exist may not land them, in common phraseology, "in queer street." I am equally afraid with regard to bank interest or loan interest which may be a liability in the meantime and has to be kept unpaid until compensation is received.
I think the Minister knows that accumulated interest will not be allowable as a claim. It will have to be met in some way and it should not be met until compensation is paid. I am not at all in agreement with the Minister that, if that were to be done, it ought to be done by an amendment of the Rent Acts, or that it should be done in one of the regular Acts. This is a neutrality Bill and we should not, in our ordinary legislation, make permanent provision for war damage that might happen to us when neutral. It may be that that is going to be the common state in future, but I hope that is not so. Anything which was regarded as abnormal to meet this kind of circumstances I would have in this Bill and not in one of the regular Bills intended to be permanent.
Is this section absolutely necessary? Is there no way by which, if a person accumulates debts to the State during this time, they should be payable over a long period? This type of Bill tries to avoid hardships for a limited number of individuals and to put such a section as this into it—I know it appears in other Bills—providing that State liabilities may be collected out of compensation may possibly have the effect of preventing a person from getting back on his feet. I am not convinced that it is absolutely necessary, but, if it is to be there, I think it should be in some such form as this: where the Minister is satisfied that the deduction will not prevent the person from reinstating his property or restarting his business, the deduction may be made.
Am I right in assuming that the Minister has power, even under this section, not to deduct the money? The section makes it lawful for the Minister to pay a debt to the State, but does not make it mandatory. Is there not some power already in the Revenue Commissioners to say: "We will not take all the money out of this; we will take an instalment and allow you to pay in instalments later on?"
The Revenue Commissioners accept instalments every day.
Does this section not leave that power unimpaired?
It does, I imagine.
This provision might cripple the individual concerned, not only from the point of view of the Minister, but it might also do this to the State: it might prevent him from again becoming a taxpayer, from going into business and making profits out of which he would pay taxes, so that, while the Minister would get certain arrears, he would lose on the swings what he gained on the roundabouts. I support Senator Douglas's suggestion, and suggest to the Minister that he should make certain, between now and the next stage, that it is not mandatory that a debt should he paid, but that there is power to take a debt in instalments. I think that would meet the case made.
The section would require to be radically altered, because it says that the debt has to be discharged out of such compensation.
There is no instalment then. I am afraid that, if the Minister takes an instalment, he loses the lawful power he has here.
I shall look into the points raised by Senators Hayes and Douglas.
Why under any conceivable circumstances should the State make a profit as between a person who has suffered damage and the foreign Government from whom he gets compensation?
There is no intention of making a profit.
I think there is provision by which that could happen. My reading of the section is that the Minister may pay the difference, that it is not mandatory.
We will pay it, every penny of it, out of whatever we get.
Why not say so then? My attention has been drawn to this, and it seems to me to leave it optional.
We will not hold on to any money that comes to us from any outside authority.
I think we are not very likely to get it, but the politics of it is that the Minister must pay it.
This section provides for the contribution from local authorities. There was a similar provision in the 1923 Act, though I do not think circumstances are quite analogous. I do not want to go into that. It would appear, however, from this section that not only has the local authority to pay up to 25 per cent. of the damage done in its area, but that it also has to bear the cost of damage done to roads, bridges and so on, under Section 3. The local authority would probably get some assistance from the State, and very properly so, in that case. I think that, in the case of the building and widening of certain bridges in Dublin, some State assistance was given. Would it not be possible to provide that the total amount of the liability of local authorities would be 25 per cent.—including the two things I have mentioned?
The 25 per cent. mentioned in the section is the amount that is leviable over the whole Twenty-Six Counties. It does not mean 25 per cent. leviable on the local authorities. Places that suffer no damage at all will have to bear their share also to help Dublin, Wexford and other places.
That alters it.
Sub-section (2) of the Schedule provides that a preliminary order shall not be made save within four weeks in the circumstances set out. I am far from being an expert on this, but I understood from the Lord Mayor this afternoon—he authorised me to use his name—that he has been advised by his own officers that four weeks would not give sufficient time to carry out what is provided for here. Perhaps the Minister would consider inserting eight weeks instead of four. I understand that this provision has been inserted at the instance of the Dublin Corporation.
In consultation with them.
I presume that if it be found that this needs amendment, the Minister will agree to make the necessary amendment?
Certainly.