The object of this amendment is to postpone the date of the coming into operation of the proposed legislation from 1st January next to 1st April next. As we are proposing certain amendments to the Bill which, if accepted, will have to go back to the Dáil, it is necessary to postpone the date of operation of the new Act. The Dáil may not be able to take the amendments before the first day of the new year.
Fatal Injuries Bill, 1954—Committee Stage.
Government amendment No. 1:—
In sub-section (1), line 11, to delete "January" and substitute "April".
Amendment agreed to.
I move amendment No. 2:—
In sub-section (2), line 13, to add after "Act""nor in relation to any death in respect of which the provisions of Section 18 of the Air Navigation and Transport Act, 1936, apply".
The Bill, as drafted, applied, apparently, to all deaths arising by the kind of act to which it applies. On the Second Reading, I mentioned that if it applied to fatal accidents in aircraft, that, under the Warsaw Convention, to which this country is a party, there is an agreement as to the limitation of the amount of damages in such cases. That is provided for in our Air Navigation Act. I hardly think it can be the intention to revoke those provisions. Therefore, I suggest this amendment, which would have the effect of providing that the fatal accidents to which this Bill relates would not impute fatal accidents of that nature. If it did, it might produce a rather grave problem for air navigation companies, particularly of foreign countries, flying into or over this country. You might have to alter the rate of insurance. The provisions of the Bill should not apply to any fatal accidents which would come within Section 18 of the Air Navigation and Transport Act.
The Bill, when law, will not affect the provisions of the Air Act, 1936, or any other special statute dealing with death cases, such as the Garda Síochána (Compensation) Act, 1941. We are advised that there is no necessity for this amendment. The ordinary rule of law that the provisions in a general Act do not affect provisions in a special Act will apply. This Bill will be a general Act and the Air Act of 1936 is a special Act. I am unable to accept the amendment.
I am sure the Minister has been advised by the Attorney-General, but if it is not the intention to affect these provisions, I still suggest that it would be better to say so definitely. The Air Navigation Act provides that in such cases the Fatal Accidents Acts will not apply. It seems to me that, by not making the point clear, we may be creating a point for legal argument and discussion. If the Minister is satisfied that this class of fatal accident should not come within the Bill, I strongly urge that doubts as to the effect of litigation should not be unnecessarily incurred. The Minister should see his way to reconsider the matter.
We are advised by the Attorney-General's office that there is no need for this amendment.
It may be a shocking thing to say, but Attorneys-General may err. It is the duty of the legal members of this House to press the point as far as possible. It seems to me that this is exactly analogous to what happened in the case of the Mercantile Marine Bill in the case of the flying of courtesy flags. We were assured that the clause, as it stood, would not be a handicap on ship-owners. We insisted that it would be better to improve legislation. That is what Senator Cox is insisting upon at the moment. His amendment seems to be a distinct improvement and it would be a pity if the fiat of the Attorney-General were to deter us in this matter.
Mr. Douglas
I should like to support the amendment. One of the things that has worried me since I became a member of this House is that we have a tendency to accept and pass legislation which is to a certain extent vague. It would appear to me that this amendment, if accepted, would not in any way affect the Bill, but would make it perfectly clear what is covered by the Bill.
I wonder would the Minister say whether he expects to make any special Acts which will not be affected, whether he has any other special Act in mind? I foresee a difficulty if we mention one of these special Acts as not being affected by this Bill and omit others. There might be an objection.
It so happens that I myself act for a certain foreign air company and I notice they are concerned about this point. It is open to doubt. Not only is it open to doubt here, but it might be open to doubt elsewhere. It may be within the recollection of the members of this House that there was a fatal accident at Shannon about a year ago. That fatal accident is at present, I understand, the subject of various law suits in the United States which concern passengers who took their tickets at different places. It is quite possible that the United States courts may have to decide as a question of fact what Irish law might be. It is quite possible, therefore, that these countries may deal with Acts which may readily be the subject of litigation not merely in our Irish courts but in courts all over the world and that we should be particularly concerned.
Arising out of what one Senator said, I may say that I myself know of several cases in which the courts have held differently from the views of various Attorneys-General.
In regard to the point raised by Senator Sheehy Skeffington, there is the Grand Jury Act of 1836 and also the Gárda Act I mentioned. We were advised that there is no necessity for this amendment. There is a new Air Bill being considered and the Senator's point can be dealt with in that Bill.
A bird in the hand is worth two in the bush.
Is there not a general rule of law that, when you are passing a general Act, it does not alter the provisions of Acts previously passed and applying to particular problems? If that is so, it would appear that Senator Sheehy Skeffington is right and that you would require sub-section (2) to enumerate all the public Acts, as well as the others. If you mentioned one, you would do some harm with regard to the others. However, it is not intended to conclude this Bill to-day. On the next stage, the Minister and the Attorney-General will have the advantage of the opinions expressed here to-day. If, by that time, the Minister sees any flaw, it will still be capable of being remedied. Perhaps Senator Cox would agree to that.
I should be happy if the Minister would be good enough to consider the whole matter and discuss it again. I will withdraw the amendment, on the understanding that the Minister will be good enough to look into the matter.
I will submit the matter again to the legal advisers.
Amendment, by leave, withdrawn.
Section 1, as amended, agreed to.
SECTION 2.
Government amendment No. 3:—
In the definition of "dependent", line 16, to delete "tort" and substitute "wrongful act, neglect, or default."
Amendments Nos. 3 and 4 are, in reality, drafting amendments. The words used in the Fatal Accidents Act, 1846, are "act, neglect, or default" and it is thought better to use these words again, so as to preserve the case law. The death of a person could be caused by an act arising out of a contract in a case where the liability of the defendant in tort was excluded. An example would be the case where special tickets are issued to passengers by transport companies.
Amendment agreed to.
Government amendment No. 4:—
To delete the definition of "tort", line 22, and substitute: "wrongful act, neglect, or default includes a crime."
Amendment agreed to.
Section 2, as amended, agreed to.
SECTION 3.
Amendment No. 6 more or less meets my point and I am prepared to accept it in lieu of mine.
Amendment No. 5 not moved.
Government amendment No. 6:—
To delete sub-section (1) and substitute:—
(1) Where the death of a person is caused by the wrongful act, neglect, or default of another such as would have entitled the party injured, but for his death, to maintain an action and recover damages in respect thereof, the person who would have been so liable shall be liable to an action for damages for the benefit of the dependents of the deceased.
This is a drafting amendment, the object of which is to ensure that if the deceased had no right of action at the date of his death his dependents will have no right of action. We propose to follow the wording of the 1846 Act. Otherwise, where the right of action of the deceased had been settled at the time of his death by a lump sum payment or a court decree, his dependents would, under the Bill as it stands, have a fresh right of action. There is also the case where the right of action of the deceased would have been barred because the accident occurred, say, ten years before his death.
Amendment agreed to.
Government amendment No. 7:—
To delete sub-section (6).
We are proposing that sub-section (6) be deleted altogether. Then the ordinary law as to a judge and jury will apply. If the plaintiff wants a jury, he may have one, and, if the defendant wants a jury, he may have one. On appeals from the Circuit Court to the High Court there will be no jury. Our amendment meets Senator Walsh's point.
Amendment agreed to.
I move amendment No. 8:—
To delete sub-section (7) and substitute the following:—
(7) The action shall be commenced within three years after the date of the death of the person whose death is alleged to have been caused by a tort, or within one year after the date upon which probate or letters of administration are granted in respect of the estate of the alleged tortfeasor, whichever period shall be the less.
Under the Bill as it stands, a period of three years is given to the dependents to institute their action. Under the law as it stood before, that period was one year. If the Bill passes as it stands, the estate of any person who may have been responsible for a fatal accident cannot pass or be wound up for three years, or possibly a longer period. I know that this point is one which has given a good deal of concern to lawyers generally.
If I am involved in some fatal accident for which I may be liable, my personal representatives may, for three years after my death, be in a state of uncertainty as to whether a claim will be established against my estate or not. That is most unreasonable and most undesirable, and it might cause very grave hardship. In practice, in regard to the period of one year which has existed up to the present, I myself have never known of any genuine case in which a plaintiff was caught out, but that is now extended generally to three years. The amendment I am suggesting is that in the case of the death of a person who is alleged to have caused the accident, the action must be taken within one year from the date on which the grant of administration or probate is issued. Unless we do that, we will leave every estate in very considerable embarrassment. It is quite possible that the personal representative might not even know that I possibly had been responsible for a fatal accident, until the action is taken a considerable time afterwards. Therefore, I move that the action should be instituted within one year.
We have carefully considered this amendment and have decided not to accept it. We think the present period of one year from the death is too short and that it should be three years from the death. In our view, no special provision should be inserted so as to shorten the period in any particular instance. It is much better that it should be clear to everybody that the action is to be taken three years after the death. Otherwise, the dependents might have to keep watch to see whether administration had been taken out to the estate of the person causing the death. Hardship could occur in certain cases where the wrongdoer died fairly soon after the accident.
The general rule in all statutes of limitation is that the action must be taken within a specified period after it arises. In a fatal case, the action arises on the death and not when administration is taken out to the estate of the person causing the death. We do not think that the position should be complicated. Where a wrongdoer died, say, six months after the accident and administration was immediately taken out an extraordinary position might occur. If the injured party died two years and nine months after the accident, his dependents would have no cause of action at all under the Senator's amendment because over a year would have elapsed from the date of the administration of the wrongdoer's estate. In other words, the dependents would lose their cause of action before they had ever gained it —and that would be a result which we think ought to be avoided.
Is the amendment being pressed?
I will withdraw the amendment, but I would ask that the Minister should consider the point further. I have known this to be of considerable concern, both to lawyers and insurance companies. I am not going to press it, but I should like it to be given further thought.
Is it not true that, under the terms of this amendment— which seemed to me to be a good one, at first blush—if the administration took two years and six months—the Minister takes two years and nine months, but taking even two years and six months—then, the cause of action would be lost, because three years would be less than three and a half?
It would, but there is a general conception of a year. There is an old saying: "The executor's year." If the Bill passes as it stands at present, it will create considerable doubts and anxieties in respect of the estates of a great many people, as one simply does not know what one will have to provide for. Very considerable injury and loss may be caused.
I should like to support Senator Cox. I feel that executors and administrators will be rather reluctant to take on the onus of taking out the grants, if they feel that their liability may be continued by the winding up of an estate being delayed for a considerable time. Like Senator Cox, I would ask the Minister to reconsider the point.
Is the amendment being pressed?
Perhaps I could have liberty to raise it again on the Report Stage? I do not believe people realise how serious the injuries may be that may arise.
When an amendment is withdrawn, it may be put down again. If it were defeated, it could not be put down again.
I can put it down again for the Report Stage.
Section 3, as amended, agreed to.
SECTION 4.
Government amendment No. 9:—
To delete sub-section (1) and substitute the following:—
(1) The damages under Section 3 shall be the total of such amounts as the jury or the judge, as the case may be, may think proportioned to the injury resulting from the death to each of the dependents, respectively, for whom or on whose behalf the action is brought, and each such amount shall be separately indicated in the award.
This is a drafting amendment designed to ensure that the judge or the jury, as the case may be, will treat the case of each dependent individually and indicate the result separately in the award. We are anxious to spell out into the Bill the result of the existing case law.
Amendment agreed to.
I move amendment No. 10:—
In sub-section (1), line 14, after "brought" to add:—"Provided always that this sub-section shall not affect the jurisdiction of the High Court of Justice or of the Supreme Court of Justice to review on appeal the verdict of the jury or judge as the case may be".
I have put down this amendment because it seems to me that, on the Bill actually worded, the decision at the first hearing becomes absolutely final. I am certain that that is not intended. I have put down the amendment to try to make clear that the normal rights of people to have their case reviewed in a superior court will still remain. It would be to the advantage of both parties in any litigation that would arise.
We are advised that there is no need for this amendment. The ordinary law as to appeals to the High Court from the Circuit Court and to the Supreme Court from the High Court will continue to apply. There is nothing in the Bill to change that law.
Amendment, by leave, withdrawn.
Government amendment No. 11:—
To delete sub-section (2) and substitute:—
(2) In addition damages may be awarded in respect of funeral and other expenses actually incurred by the deceased, the dependents or the personal representative by reason of the wrongful act, neglect or default.
This amendment has a twofold object. First of all, we want to make it clear that the expenses we have in mind are funeral and other expenses such as medical expenses. Secondly, we want to provide that if the personal representative incurs the expenses they may be recovered. We are adding the personal representative to the dependents and the deceased. Where there is a personal representative, he will in the ordinary way pay the funeral and medical expenses and take the action for the death.
Amendment put and agreed to.
I move amendment No. 12:—
To delete sub-section (4) and substitute a new sub-section as follows:—
(4) The amount received in the action shall, after deducting the costs and expenses, not recovered from the defendant, be divided among the parties entitled in such shares as the judge may have determined.
The Minister stated on the Second Reading, at column 815 of Volume 45, that, under the Bill, the juries will divide up the amount, whereas the judge now divides it. This Bill withdraws or deletes Section 83 of the Courts of Justice Act, 1936. Sub-section (2) of that section reads as follows:—
"Notwithstanding anything contained in Section 2 of the Fatal Accidents Act, 1846, the amount recovered in any action under that Act shall (after deducting the costs not recovered from the defendant) be divided, in pursuance of the said Section 2, amongst the parties mentioned in that section in such shares as the judge before or by whom such action is tried shall determine and direct."
Apparently, therefore, under this sub-section of the Bill as it stands at the moment, the juries, where there is a jury, would be the people who would apportion the damages between the dependents. To my mind, it is preferable that a judge should do this as he is better qualified and has more experience. I feel he would be more suitable to apportion damages amongst the dependents. That is the position in the case of workmen's compensation and I think that apportionment by a judge would give greater satisfaction.
For instance, the judge could have an assessor or actuary sitting with him to apportion damages amongst the dependents who may be numerous, in consequence of the number of dependents who now may come in under this Bill. The apportionment is technical. A jury could not be expected to divide it as accurately or expertly as a judge. It might be difficult to get uniformity amongst a jury when they have damages to apportion. This might result in a retrial. Accordingly, I would ask the Minister to accept the amendment, that is, that the judge should be the person who should apportion the damages amongst all those parties entitled under the Act.
This, in essence, is the same as Senator Cox's.
Yes. I would very strongly support this amendment. I think it would be putting an impossible task on a jury to ask them to decide the division and the manner. The damages are to be divided amongst the various next-of-kin. It is not a kind of question that has ever in the past been put to a jury. It seems to me, as a practising lawyer, that to add on to the task of the jury in respect of any accident where they have to decide who is to blame and to measure the damages—what I would call "in gross"—and then perhaps to divide the damages between the widow and children of different ages, is simply setting them an impossible task which must give rise to complete confusion in the mind of the jury.
As Senator Walsh has said, the apportionment between different members of the family has always been regarded as a matter for the judge. The hearing of a jury action on a negligence case is complicated enough already, without having to determine the circumstances of each member of the family and what their future may be. I very strongly support Senator Walsh.
I should like to support this amendment, because, like Senator Cox, I feel that the section as it now stands would put an impossible task on members of a jury and also, as Senator Walsh has said, a judge would be more expert than a jury. As he also said, it may be impossible to get unanimity between the members of a jury in connection with the allocation of the award. That may mean a rehearing of the case and more expense to the people concerned.
The Bill deliberately repeals a provision in the Courts of Justice Act, 1936, providing that, though the jury are to fix the total amount of damages, the judge is to apportion between the dependents. We are advised that this provision has to be ignored in practice as otherwise the jury could award one lump sum and then the judge would have to divide up that sum between the dependents, without knowing how the jury arrived at it. Each dependent must be taken separately and the loss sustained by each dependent calculated separately. That was the law before 1936 and it is as we are advised the law still applied. Otherwise, it would be very difficult to arrive at a proper decision in these cases. Under a previous Government amendment we are, as I said, spelling out the law and practice into the Bill. I am afraid we cannot accept this amendment.
I think it is terribly unwise to introduce, almost by way of experiment, precedents of this kind. I would ask the Minister to reconsider the matter. I do not know whether Senator Walsh will press the amendment, or leave it to the Report Stage.
Could either of the Senators tell us whether it is the case that the law, as now restored in this Bill, links up with the 1846 Act, and, therefore, also with the law as Senator Cox says with his long experience of the courts? It is stated by the Minister—I am not a practising lawyer and I am not able to judge in this matter—that the Act of 1936 was, in fact, said by the judges not to be practicable. If that is so, is it not better to make the letter of the law coincide, as we are doing in this Bill, with the actual practice?
I do not know what the law was before 1936, but, now that the number of dependents has increased so much, it will be a much more onerous responsibility for a jury than in the past, when it was confined to a widow and family and a number of next of kin of the first degree. The standards of juries vary considerably. In my opinion, they vary to a greater extent than do the standards of judges. Consequently, the apportionment of damages amongst the dependents might vary more, if the allocation is to be made by a jury and not by a judge. I still feel convinced that a judge is the more appropriate person to do that. He can do it as an individual, whereas 12 men will have tremendous difficulty in coming to a decision as to the allocation. For that reason, if the Minister is not prepared to accept the amendment, I would ask him to have it carefully considered before Report Stage. I will put it down for the Report Stage.
I am sure Senator Walsh will put it down, but, if not, I will do so.
Amendment, by leave, withdrawn.
Government amendment No. 13:—
In sub-section (4), line 22, to delete "parties" and substitute "persons".
This is purely a drafting amendment. We do not want to confuse the parties to the action and the parties who recover damages. So we propose that the word "persons" be substituted.
Amendment agreed to.
Amendment No. 14 not moved.
Section 4, as amended, agreed to.
Section 5 agreed to.
SECTION 6.
I move amendment No. 15:—
In sub-section (1), line 34, before "with" to insert "if established".
This is merely a drafting amendment.
We are advised that there is no need for this amendment. Under the ordinary law, only debts which are established may be recovered from the estate of a deceased person.
Amendment, by leave, withdrawn.
Section 6 agreed to.
Sections 7 and 8 agreed to.
SECTION 9.
I move amendment No. 16:—
In line 7, after "repealed" to add "save in relation to the death of any person before the commencement of this Act".
From the point of view of clarity, Section 1, sub-section (2), provides that this Bill, when it is passed, shall not apply in relation to the death of any person before the commencement of the Act, but in Section 9 it repeals the existing Acts which are the Acts under which appeals in respect of deaths prior to the passing of this Act could be made. I suggest it should be clearly stated that that repeal should not apply in the case of a death before the passing of the Bill. I daresay the answer may be that the whole Act does not apply in relation to the death of any person before the commencement of the Act. It seems to me that it is a very unjust course to create all these legal difficulties in legislation, almost just for the fun of it. I suggest that it should be clearly stated that the Acts which are being repealed will continue to apply.
We are advised that there is no need for this amendment. The repeals in the Bill will not take effect until the Bill comes into operation as an Act, and it will not come into operation as an Act until the 1st day of April next. Under sub-section (2) of Section 1 the Act will not apply in relation to any death before that date and, accordingly, the repeals will not apply in relation to any such death. We cannot accept the amendment. What the Senator seeks to do is already done in the Bill.
I am not pressing the amendment.
Sub-section (2) of Section 1 provides that the Act shall not apply in relation to the death of any person before the commencement of the Act.
I appreciate that, but one does repeal the existing Acts completely. However, I will refer to the matter again on Report Stage.
Amendment, by leave, withdrawn.
Section 9 agreed to.
Section 10 agreed to.
Schedule and Title agreed to.
Report Stage ordered for the first sitting day after Christmas.