Civil Liability Bill, 1960— Second Stage.

Question proposed: "That the Bill be now read a Second Time".

Parliamentary Secretary to the Minister for Justice (Mr. Haughey)

This Bill has three principal objects. First of all, it proposes to provide for the survival of causes of action on death. Secondly, it proposes to deal comprehensively with the law as to concurrent fault. Finally, it proposes certain miscellaneous and important reforms in the law of tort. As the Bill is accompanied by a full and detailed Explanatory Memorandum, I assume that Senators would wish me to confine myself to the principles involved in the Bill.

Part II of the Bill is concerned with the survival of causes of action on death. It is proposed to amend the law to ensure that all actions except certain excepted actions listed in Section 6 will survive the death of either party. At the present day, the application of the maxim actio personalis moritur cum persona is confined to the law of tort and the effect of Part II will be that all tort actions, other than excepted causes of action, such as breach of promise and defamation, will survive death. Damages for pain or suffering or personal injury or for loss or diminution of expectation of life or happiness are being excluded in Section 7.

The assessment of what I may call happiness damages has given rise to considerable difficulty in England particularly in view of the fact that the test to be applied is an objective one. Moreover, it has been said that the maximum amount that can be awarded is £500; and in assessing damages under the Fatal Accidents Acts in England account must be taken of any damages payable under the survival statute of 1934. On a full consideration of this problem it seemed to me that what should be done was to give more damages to the dependants of a person who lost his life due to the wrongful act of another. The dependants and not the estate are the real sufferers, and this all the more so where the estate goes to a stranger under the will of the deceased. Accordingly, Section 49 of the Bill provides for an additional head of damages in a fatal case in order to compensate the dependants for mental distress resulting to them from the death.

The total of the amounts awarded in any one case will not exceed £1,000. The amount for each dependant will be assessed by the judge and indicated separately in the award. The idea of providing compensation for mental distress will be completely new to the common law and the relevant provisions in Section 49 will apply for a trial period of three years. Before the end of that period the law will be reexamined having regard to the actual cases where damages for mental distress have been awarded.

It is proposed to keep records of each case decided in the courts. I suggest that the figure of £1,000 is a generous one, which compares more than favourably with £750 which is, I understand, the top amount awarded for what in Scots law is known as solatium or solatium doloris. The principle of awarding compensation for moral damage is an attractive one and it has operated successfully in Scotland and in France. We shall see how it will work in this country. The present system of confining damages in fatal cases to purely actuarial or financial loss means that a husband can recover nothing for the loss of his wife, unless he can prove economic dependency, which very often he is unable to do. Before I leave this subject, I may mention that mental distress under the new proposal will, of course, have to be proved.

Concurrent fault is dealt with in Part III of the Bill. The liability of concurrent wrongdoers, contribution between concurrent wrongdoers, and contributory negligence are covered exhaustively. Wrongdoers will include persons who commit an ordinary civil wrong, technically called a tort, persons who are in breach of trust, and persons guilty of a breach of contract.

The Tortfeasors Act, 1951, which has been found in practice to be unsatisfactory, is being repealed. Apart from the fact that it leaves a number of problems unsolved, the Supreme Court have held that the Act does not allow for third-party procedure to settle matters of contribution in the injured person's action, where the injured person has not sued all the tortfeasors. The proposals in the Bill are specifically designed to avoid as far as possible a number of actions in respect of the same accident or occurrence. Except in exceptional cases, all issues, whether of liability, damages or contribution, will be settled in the one action.

Section 34 of the Bill will get completely away from the existing law in negligence cases. Where a person suffers damage as a result of the negligence of another, the law is that he recovers all or nothing depending on contributory negligence on his part. Subsection (1) of Section 34 proposes that instead of this "all or nothing" rule, damages will be apportioned according to the degree of fault of each party. Thus a person, who suffers damage in an accident to the extent of £600, for which he is found one-third to blame, will recover £400. This is a fair and equitable system which has met with approval in every legal jurisdiction in which it has been introduced.

Parts IV and VI of the Bill propose to re-enact and bring into line the existing statutory provisions as to both ordinary fatal accidents and fatal air accidents. The law as to the heads of damages to be awarded is, as I have already indicated, being amended so as to allow compensation for mental distress, Part V of the Bill makes certain purely consequential changes in the Workmen's Compensation Act. These changes are necessary because of the amendment in the law of contributory negligence.

Part VII of the Bill contains certain miscellaneous provisions dealing with the law of tort. The main changes in the law will be found in Sections 58, 60, 61 and 62 and I shall deal with these sections separately.

Section 58 will enact that the law relating to wrongdoing will apply to an unborn child for his protection, as if he were born, provided he is subsequently born alive. The Section is drafted as declaring the law. This is to avoid any implication that the case against the former Great Northern Railway Company, decided by an Irish Court of Appeal in 1890, is in fact the present law, which, indeed, it may very well not be.

Section 60 will abolish the defence of nonfeasance by a road authority. As the law has stood since the famous case of Russell v. The Men of Devon, decided as long ago as 1788, a road authority are not liable for damage resulting from mere nonfeasance, that is to say, from mere neglect to perform their statutory duty to repair the road. But a road authority are liable for negligence in the execution of their duty. In other words, they are liable for misfeasance. Section 60 will provide certain statutory defences for a road authority; and the factors to which regard must be had in determining whether a road is adequately maintained are set out. The new section will come into operation on a day not earlier than the 1st April, 1967.

A new liability is being imposed on road authorities and it is only reasonable that they should be given sufficient time to take necessary action in regard to public roads, and bridges, pavements, etc., forming part of such roads. It must be realised that the liability is really a liability being imposed on the local ratepayer whose interests must be taken into account. The section strikes a fair balance between those using the roads and those whose financial responsibility it is to maintain the roads. The law has, as I have pointed out, been there since 1788; and, in justice to those who have to pay the bill, it cannot be lightly changed over-night.

Section 61 proposes to allow proof in bankruptcy of claims for unliquidated damages. On examination of the law of bankruptcy as it impinged on the proposals in the Bill, it appeared to me that there was no valid reason why claims for unliquidated damages arising out of a breach of contract, for instance, negligence in the case of a paying passenger, should be provable while claims for unliquidated damages arising out of an ordinary tort should not. Section 61 will allow claims for damages or contribution in respect of any wrong to be provable in bankruptcy where the wrong was committed before the bankruptcy. Where the damages or contribution have not been liquidated, the court may make an order for the assessment of the amount. This accords with the provisions of Section 46 of the Bankruptcy Act of 1872 in regard to unliquidated damages in the case of a contract or promise.

Section 61 will not, of course, operate in a case coming within Section 62. The latter section proposes that moneys payable under an insurance policy in respect of liability for a wrong will go directly to the injured person instead of into the wrongdoer's estate. What is involved is the extension to all liability policies of the provisions in regard to an approved policy contained in Section 76 (4) of the recently enacted Road Traffic Act.

Part II of this Bill is on the lines of proposals made by Dr. Glanville Williams of the University of Cambridge in his book, Joint Torts and Contributory Negligence. These proposals were based on a study of the law in Britain, Canada and this country and also on the pioneer work of the United States authority, Professor Charles Gregory. I should like to express my appreciation for the help that Dr. Williams gave us and for the unstinting way in which he was always ready to let us have his views on various aspects of the law with which this Bill deals. I should also like to express my thanks to the Bar Council and the Council of the Incorporated Law Society for their valuable and constructive observations. Lastly, I should like to thank the members of the Special Committee of Dáil Éireann for the work they did in the detailed examination of this Bill.

I should mention that we are now, and for the first time in any common law jurisdiction, attempting codification in a branch of the law of tort. We have tried to avoid as far as possible the use of technical phrases with restricted meanings. The Bill has naturally to be examined against the background of the common law. However, I suggest it should be examined on the basis of the legal principles it establishes and the obscurities in the law that it purports to resolve. As the Bill ranges over a wide territory, I considered that it would be desirable to accompany it with a detailed Explanatory Memorandum. Since the Bill was first introduced in Dáil Éireann, it has been substantially amended in some respects. I have had the Memorandum re-written and expanded and I trust it will be of assistance to Senators in studying the Bill.

The law of wrongs is of importance to lawyer and layman alike. Indeed, over half the actions that are heard in our courts are personal injuries actions. A prime purpose of this Bill has been to facilitate and encourage settlements out of court and to avoid where possible multiplicity of actions as respects the same set of facts. The advantage of having whole branches of the law dealt with comprehensively in one statute is obvious.

I commend this Bill to the House. I trust that it will achieve what, at the outset, it was intended and designed to achieve.

Before I conclude, I should like to refute any suggestion that this Bill has been rushed or that it has not been given the most careful consideration. In the first instance, it was circulated in draft form to all Government Departments where it has been carefully scrutinised as all such legislation is. Then I sent the Bill to the Bar Council and to the Incorporated Law Society. They examined it in detail and let me have the benefit of their views. I sent it also to the Law Schools of the Universities here and to the Law School of the Queen's University of Belfast.

In preparing the Bill and amending it, we have carried out a comprehensive comparative examination of the systems of law here, in Britain, in the United States of America and in Canada. The latest piece of legislation on this subject in a British Commonwealth country was passed in South Africa, the South African Apportionment of Damages Act, 1956. We examined what was done in that Act very carefully and have taken it into account in the wording of our Bill. As I have indicated, we were in close contact with Dr. Glanville Williams of Cambridge University who has given our Bill detailed and careful examination and has been unstinting in his co-operation.

It will be readily agreed, I think, that before we went into the Dáil at all this Bill was very carefully considered. Then when we went to the Dáil that House facilitated me in having a Special Committee set up to deal with the Bill. In that Committee we had four senior counsels, prominent practitioners all of them, and two solicitors. They and the rest of us on that Committee, these experts and the nontechnical people, scrutinised the Bill very carefully and thoroughly and we amended it in several important respects. As I mentioned in my earlier remarks, I have been able to have the Explanatory Memorandum rewritten completely for the benefit of this House so that Senators would have an Explanatory Memorandum which would be exactly related to the Bill as it was coming into the Seanad. I know that is no more than they are entitled to but nevertheless it is an earnest of our good faith that we did provide Senators with such an Explanatory Memorandum and at short notice. Therefore, I would suggest to the House it would be wrong to get the idea that this very important piece of legislation has been rushed in any way or that it has not been very carefully considered.

Professor Hayes

I have no doubt this is a good Bill and I have no doubt of the good faith of the Parliamentary Secretary. Neither have I any doubt nor any lack of appreciation of the work that has been done by the Parliamentary Secretary himself and by the Department in the preparation of the Bill. I never said, and I did not hear anybody else saying here, that this Bill has been rushed. The difficulty about the Bill is that we got it very late, not because it has been rushed, but because, perhaps, it has been started too late. It is a very indigestible morsel to receive at this particular moment.

It has been suggested to me there are only two ways of dealing with this Bill. One is to be an expert, say you understand it and proceed to talk about it; the other is to say you do not know anything at all about it. I am in a position rather between these two, but verging more to the person who does not know anything about it. I know, of course, that it is of interest not only to lawyers but to ordinary laymen particularly because on account of the growth of actions in court dealing with torts, owing to modern transport and for many other reasons. I recognise the diligence which the Parliamentary Secretary displayed in connection with the Bill. I recognise all that he has done in that direction but the Bill would get a better reception here if either of two things had been done.

The complaint here is not that the Bill is being rushed; the complaint is not that we are being kept here to deal with the Bill at a particular time of the year. The complaint really is that we were idle for a period when we might very well have been discussing the Bill. The Parliamentary Secretary might have introduced the Bill in the Seanad. I agree that if he did not want to do that, we have no way of requiring him to do so.

There was another course open which would have simplified the work we have to do this week and next week. If, having got the Second Stage in the Dáil, he had referred the Bill to a Joint Committee, we would have had the advantage now of members of this House—no doubt there are a couple opposite; I see one behind me—who would have been on the Joint Committee. They could have assured us that they had taken part as members of this House in the examination of the Bill and that they were satisfied that the Bill had been amended and was now suitable for passing. If that procedure had been adopted, the Parliamentary Secretary's work with the Bill would have been very much facilitated. The Bill would have had not only a swift but also a very informative passage through this House.

The position is quite different now. I recognise the Parliamentary Secretary's solicitude for us when he made out this memorandum. It is a memorandum of 28 pages. The Bill is a Bill of 31 pages and is extremely technical. It is not so very long since we got a copy of the Bill as amended in the Dáil. It was considered in great detail in the Dáil and amended. I did not read the proceedings of the Special Committee, but I looked through them and in several volumes of the Committee proceedings the name "Haughey" occurs five or six times on each page. He was moving amendments which were, in the main, agreed amendments. Although the Parliamentary Secretary took considerable pains with the Bill, he was able to accept an enormous number of amendments.

The Bill we have now is a Bill which was amended very considerably in the Dáil. All I regret is that this House did not get an opportunity of participating in this on Committee when we would now have the Bill on Report and members from both sides of the House would be able to assure us that they had received consideration from the Parliamentary Secretary for their point of view and co-operation with regard to the amendments. If that were the situation, the Bill would have a swift passage.

I regret very much that that course was not adopted. This Bill is not a political Bill; it is not a Bill that anybody wants to oppose for any Party reason. It is not right, whoever is in office, that at this stage of the proceedings of the Seanad, we should get not only this Bill but a great many others. I suggest to the Parliamentary Secretary that he would have no difficulty at all if this thing had been gone about in a different manner. I suggested on more than one occasion that for this kind of Departmental Bill, where no political issues arise at all and where nothing arises really except the common good, this House should be used more to introduce these Bills or that there should be a Joint Committee procedure. It would make for the smoother passage of the Bill and, eventually, make for better legislation.

I regret the Bill was not introduced earlier or sent to a Joint Committee from the Dáil. There is no charge that the Bill is being rushed. The Bill got a very lengthy passage in the Dáil and that is a reason why this House should get a chance of considering it at leisure. It is not reasonable that we should be asked to consider it at the end of a session and not only in the twilight but in the gloom and darkness of a dying Oireachtas. That is what is wrong. In the meantime, I am in favour of giving the Bill a Second Reading.

Mr. O'Quigley

The Parliamentary Secretary was very nice and sweet until he came to the end of his speech. Then he seemed to launch an attack against people who he imagines made certain charges against him. Nobody said this Bill was rushed. What we do complain about is that this House of the Oireachtas has not been and is not being given a proper opportunity to study the Bill as it comes from Dáil Éireann so that it can make any constructive speech upon it on Second Reading.

The Parliamentary Secretary refers to the lengthy examination which it got in the Special Committee. It is to the Parliamentary Secretary's credit that in the Committee he was in a position to move and have accepted 98 amendments—a substantial number of amendments to a Bill of this kind. It shows the number of technical difficulties in a measure that had been through all the rounds of Government Departments and over and back to Sir Glanville Williams, the Law Societies, the Bar Council and the Incorporated Law Society. Notwithstanding the 98 amendments made in the Select Committee, there were 58 amendments made on the Report Stage in the Dáil. That is a total of 156 amendments made to this Bill to which we were asked only yesterday to give a Second Reading without having had it in our hands even for 24 hours.

It is a moderate complaint to say that we have not been given an adequate opportunity to study the provisions of this Bill and the Parliamentary Secretary ought not to be heard in this House to say that we are unjust in our complaints. Senator Ó Ciosáin, the Acting Leader of the House, said this Bill was in hands for some months, but, of course, the amendments on the Report Stage were not made until 1st July. As there were 58, it would be rather difficult for us to relate these to the Bill until they were made. That is all that has to be said about the delay.

The Bill itself, if one had a copy of Professor Glanville Williams' book —I do not know whether there is a copy in the Library—might be easier to understand. It is sufficient to say that the reforms advocated by Professor Glanville Williams are incorporated in Part III of this Bill. The major portion of the Bill contains matters which legal practitioners have been advocating for a number of years. I am happy to think that the Bill has been the subject of detailed consideration by the Select Committee and the Dáil. It is interesting to note that what the Parliamentary Secretary so nicely turns in his favour is just what he sometimes uses against other people, the fact that present on that Committee were four lawyers, senior counsel——

Mr. Haughey

Six.

Mr. O'Quigley

That is even better.

Mr. Haughey

And seven, if you include myself.

Mr. O'Quigley

I am speaking of Senior Counsel. On other occasions I thought it would be four senior counsels and two solicitors and the Parliamentary Secretary. It is a happy thought that it has got such intensive study from such a distinguished body of people and it is interesting to see that the Parliamentary Secretary can find some use, even in this House, for learned senior counsel who are members of the Oireachtas.

One of the things I am very glad to see dealt with in this Bill is the way in which the law relating to contributory negligence will operate in future. It has always been monstrous to think that because a jury or judge in certain cases could say that a plaintiff was guilty of the slightest negligence, the person could be maimed for life and get no damages whatever.

The major defect in this Bill is something which will perhaps form the subject of a separate Bill. This evening we heard Senator Ó Donnabháin talking about common of pasture being a medieval institute. Of course sheep grazing and sheep farming are as old as the hills upon which the sheep are now grazing but there is a very medieval doctrine which still prevails in this country, that is, that the king can do no wrong. That doctrine still applies as far as I can see, notwithstanding the introduction of this measure.

Mr. Haughey

I shall have news for the Senator about that shortly.

Mr. O'Quigley

I am very glad to hear that at last the king and his infallibility are being got rid of.

Mr. Haughey

I am not saying that.

Mr. O'Quigley

I am very glad that that is so. It seems monstrous that if the Electricity Supply Board is guilty of negligence in relation to leaving a live wire across a roadway and if a motor cyclist is killed as a result, the Board will be liable, but if the Minister for Posts and Telegraphs is similarly negligent through his employees, he will not be liable in tort law. In each case, the dependants of the deceased motor cyclist will have lost their sole means of support. There is on record such a case where the Department of Finance, out of its munificence, offered to pay the funeral expenses of a man who, through the negligence of the Minister for Posts and Telegraphs, had been beheaded by a wire. It is a pity that that anachronism in our system of law should have to await the early announcement by the Parliamentary Secretary to the Minister for Justice.

I am glad to see that this doctrine of non-feasance is being abolished and that the defence will not apply after some date five or six years hence. When the Bill came out originally, I felt it was a pity that that was not contained in it and I must say I am very pleased that that amendment of the law has been made. It is no harm at all, because it will make our county surveyors and their staffs that little bit more careful in future. It is no harm in this day and age, when so much money is spent on road construction and so many facilities available for proper road maintenance, that local authorities should be made to do their duty through the threat of possible legal action against them for negligence in respect of their duty as highway authorities.

Notwithstanding my apparent carping criticism of the Parliamentary Secretary, I must express my appreciation, and, indeed, congratulate him, on the fact that he is incorporating this amendment and, indeed, all the other amendments of the law relating to tort. The one relating to non-feasance is a rather courageous amendment by the Parliamentary Secretary, because it does impose a greater liability to take care on the part of local authorities and is one which might in certain circumstances give rise to a fairly substantial volume of complaint from local authorities. However, the Parliamentary Secretary has postponed that evil day for a few years. In the meantime, local authorities will have to address themselves to the necessity of maintaining highways and footways in a proper condition.

The law relating to liability for damages to an unborn child has been quite unsatisfactory up to the present. Since our criminal law in a variety of respects safeguards the life of an unborn child, it is only right that the law as well should go the full distance and provide that where an unborn child is injured, through the negligence of another person, that person should be liable for damages for the injuries caused. I hope medical science has advanced to the stage where this provision will inure to the benefit of children injured through the negligence of other parties.

The position with regard to the survival of causes of action on death seems to be a very substantial change in the present law but I must confess I do not fully appreciate what the effect of the change is. Listening to the Parliamentary Secretary, I rather gathered that it does open up the way to causes of action which hitherto could not be taken. In so far as it does that, and gets rid of an anomalous position, it is to be welcomed.

Apart from these rather scattered observations on this very intricate Bill I have nothing further to say. It appears to me, however, that even after the most detailed scrutiny of this Bill, and notwithstanding the most detailed scrutiny it has received from the Select Committee, and afterwards from the Minister and his advisers and the amendments to it, there will be defects and deficiencies in the Bill. For that reason, I am rather disposed to say that the Parliamentary Secretary might have all Stages of this Bill in the not-too-distant future, because I rather gathered from him that certain aspects of this Bill will be subject to examination to see how they work out, and certain figures will be watched and certain statistics compiled with a view to ascertaining the effectiveness of the provisions. I rather gather that if it should be necessary to amend this Bill, that amendment will be readily forthcoming.

I have expressed the view before, for what it is worth, that in ventures of this kind, in making changes of any kind which do not work out, there should be no hesitation about amending the law. I think that whatever difficulties this Bill may have, and I anticipate they will be very few, it is right and proper that we should here and now exculpate in advance the Parliamentary Secretary and his advisers from any blame for defects that may be in the Bill.

I should like some opportunity, as a member of this House, of examining the details so far as I can apply my mind to all sections of this Bill. I hope that, when the Committee Stage comes up for consideration, notwithstanding the mutual recriminations of a mild character we have had to date, the Parliamentary Secretary will extend a little latitude to us in our desire to give this Bill the best reading we can with a view to ensuring, as far as this House is concerned, that it will be as good as possible when it comes to be signed by the President.

Mr. Lenihan

This is a very comprehensive and important measure dealing with a major branch of the law of torts. I should like to congratulate the Parliamentary Secretary and the Department on the introduction of this very important measure so for as lawyer and layman alike are concerned. It is the culminating measure of a lot of important law reform work which has gone through the Houses of the Oireachtas in the past two years —the Rent Restrictions Act, the Charities Measure, the abolition of archaic matters like the defence of common employment. These archaic and outmoded defences and outmoded aspects of our jurisprudence are gradually, in the course of the past few years, being removed. We now have this very important measure which codifies this very important field of civil liability.

The present measure incorporates and amends the Tortfeasors Act, 1951, and the Fatal Injuries Act, 1956, both of which are incorporated and amended in the present measure. I particularly welcome Section 49 which provides for damages not to exceed £1,000 in the case of mental disturbance caused by a fatal accident. It has been an anomalous situation that fatal cases gave rise to comparatively low damages as against where a person might be injured in some way. To layman and lawyer alike, it was an anomaly that an injured person had far greater value in the assessment of damages than, to put it bluntly, a dead person. The situation now is that that has been remedied to a certain extent by the provision of compensation up to £1,000 in the case of mental distress which afterwards occurred following a fatality. It is a welcome innovation.

The other matters that have been written into the Bill are the old legal doctrines of actio personalis moritur cum persona that a legal action dies with the death of a person. That has been modified by successive legislative enactments over the years. Now, that maxim no longer applies except in certain really personal actions involving breach of promise, seduction, criminal conversation and so on, where the actual presence of the person is necessary to the legal action. The other legal axiom, volenti non fit injuria, is in Section 34. It provides that where there is an expressed or implied agreement liability exists.

Section 34 is the most radical innovation in this measure. It is the key section in the whole measure. That, linked with Section 56, means that we now have the abolition of the famous last opportunity three question rule which has bedevilled the law courts over a long number of years. Lawyers know and laymen found it incomprehensible to understand the rarefied sort of reasoning that went into elucidating whether two or three questions were appropriate in particular negligence cases. The matter got into very rarefied abstract unreal argument in many cases. That now goes and we have an easily understood and perfectly simple way of assessing liability, the apportioning of damages according to blame. It is easily understood by a layman and a lawyer. Anything that simplifies the law and makes it understood in a simple way by lay people is good.

It is often very difficult for lawyers to explain to a plaintiff why, if a defendant was clearly negligent in a case, the plaintiff happened to lose. That situation is now resolved. The plaintiff's damages will be reduced to the extent that he, the plaintiff, contributed to the accident but reduced only. He will, unless grossly negligent, succeed in obtaining some amount of money. That is a very practical and key improvement in this. It will lead also, as the Parliamentary Secretary said, to more settlements out of court, to more expeditious trials and more expeditious hearings. The situation will be one in which I imagine we shall have far more of what we call assessments in court where liability will no longer be an issue. With the lodging of money by the defence in court the question of assessment of the appropriate amount will be a very expeditious matter.

The other matters in the Bill have been referred to by Senator O'Quigley. The abolition of nonfeasance as a defence available to local authorities is very welcome. There should be no difference at all between the negligence of omission and the negligence of commission. For years, local authorities have been enabled to use this defence of nonfeasance when they were negligent in acts of omission. It is good that that is put on a rational basis now and that local authorities may no longer be able to raise that defence from 1967 onwards.

There are other matters in the Bill and, by and large, it is really a Committee Stage Bill. Senator O'Quigley mentioned one matter on which I thoroughly agree. It is the anomalous business of the famous defence available in the old days that the King can do no wrong and which is still there, with certain legislative exceptions like the Road Traffic Act where the Minister for Finance is liable. However, it is still there in the case, for instance, where the Post Office can be negligent in laying a wire and they have this defence that the King can do no wrong. It has been abolished in the Crown Proceedings Act in England in 1947. I am glad to hear the Parliamentary Secretary say a similar measure will be introduced here. When that is done I feel we shall have very few archaic or medieval regulations and entanglements left in our system of jurisprudence.

The Bill represents a very noble attempt on the part of the Department at codification. I do not think it will succeed entirely. The lawyers and the judges will always find loopholes and there may be court cases on top of this measure. It will not be a final codification, I am sure, but it is a noble attempt at achieving this difficult objective. I do not think it will succeed completely, but it is a great step in the right direction.

Professor Hayes

I presume it will not be long before the Parliamentary Secretary gets an opportunity to reply. I do not suppose he will be very long in replying, because on the Committee Stage all these matters will be mentioned. I shall be prepared to sit for some short time if we can finish this Stage.

Mr. Haughey

There are three more Bills.

Professor Hayes

We shall not do any more Bills. The arrangement was to adjourn at 5 p.m.

Mr. Haughey

I did not know that.

Professor Hayes

It would be quite sufficient to take the Second Stage of this Bill as fast as may be. We can meet next week for the other Bills. Nobody will obstruct them. Nobody has prevented the Parliamentary Secretary from coming in to-day before now. It is a matter which just happened. I suggest that what we should do is to take the Second Stage of this Bill and to meet next Wednesday and go on with the others. There is nothing else we can do.

An Cathaoirleach

Senator Ryan wants to speak. He will be followed by the Parliamentary Secretary?

Mr. Haughey

I shall confine myself to praising the Seanad.

Mr. Ryan

I should like to welcome this Bill. That is a statement which is often made in this House with, possibly, varying degrees of enthusiasm, but I should like to stress in this case that I make it with the maximum enthusiasm. Although this is a very technical Bill, it will have, I believe, very practical results. Certainly so far as anyone in the legal world is concerned, it will have what might almost be described as revolutionary results.

I should like principally to welcome Chapter III of Part III of the Bill. I believe it is most important, and it is certainly the part of the Bill which introduces the greatest innovation. Previously, when a claim was made by an injured party, the courts had to decide whether the injury was the fault of the defendant, or whether the plaintiff himself was in any way negligent. The courts had to give full damages to the plaintiff if there was no negligence on his part, or no damages if there was any negligence on his part. That certainly led to grave injustice on many occasions, because, I think, experience will show that in certainly four out of five accidents there was some degree of negligence on the part of both parties involved.

The simplest example is the person who walks across the road and is knocked down by a car. That is a very common type of accident, and I think experience will show that in nearly all cases of that kind, there was a degree of negligence on the part of the person who left the footpath without taking adequate precautions, and a degree of negligence on the part of the driver of the vehicle which knocked him down. Up to now the courts had to find all one way or the other. Under this Bill the courts will be able to say that the accident was, say, one-third the pedestrian's fault and two-thirds the defendant's fault and apportion damages accordingly. That is a very important innovation and a principle which should have been introduced here some considerable time ago. It has been in operation in Great Britain since 1945, and has worked very well there.

The effectiveness of Section 34, curiously enough, is likely to be of benefit to almost all those likely to be concerned by it in the future. In other words, people who might never have received damages without this section, will now receive some damages, but limited damages. On the other hand, those who might have had to pay very much damages will now only have to pay limited damages. The only type of person likely to suffer is the person who, in the past, got excessive damages. In future he will get merely reasonable and adequate damages.

I should like to welcome also the many other valuable sections of the Bill. Some are new and some are merely clarification and re-enactment of existing law. There are a number— and several have already been referred to—which will play an important part and be of great practical benefit in the future in the courts. One aspect of the Bill which I welcome in particular is the fact that so much of the law on civil liability will now be gathered into one Bill. That is very useful and it is being effected by this Bill. It is something which the practitioners will welcome. Up to now, we had to go to so many different Acts, reports, books, and so on, to get the law on the various aspects of civil liability.

Finally, I should like to congratulate the Parliamentary Secretary for his industry in preparing this Bill, and on the way in which he met most of the objections or suggestions made in relation to the original draft. In particular I should like to congratulate him on the very useful memorandum, now revised, which he has produced to enable people to understand and work the Bill, when it becomes an Act.

Mr. Haughey

I want first to express my appreciation to the House for the manner in which they received the Bill and the commendatory things Senators have said about it. I hope it will live up to our expectations, and I am sure it will. We have all made an honest effort to give the people and the Courts the practitioners and the litigants who have recourse to the Courts, a useful and valuable piece of legislation. We have done all we could and we can only hope for the best after that.

I did not really want to attack anyone when I was refuting the suggestion about this legislation being rushed. I was merely concerned to point out that it was not in fact rushed. I fully appreciate that this House is not getting the time they would like to consider this Bill and, indeed, the time I would like this House to have to consider it, if circumstances had been different. I certainly would prefer if this Bill had come to the House in a more leisurely fashion and spent a longer time here. I have not the slightest doubt it would have been possible to improve it somewhat by that process.

I do not want to convey any wrong impression about the maxim: "The King can do no wrong". I want it clearly understood that I merely said we might have news about that. I must sound a note of warning and point out that the British, when they eventually decided to do away with that maxim—and after all they invented it—excluded the Post Office and the Defence Services. I shall not say any more. I merely wish to make it clear that I have given no undertaking of any nature today.

In connection with the question of non-feasance in local authorities, I should say that there is provision whereby they may insure against any claims that may arise. The proposed change in the law need not necessarily be very expensive on them. It is only right and proper that we should give them plenty of time to put their house in order.

I fully agree with Senator O'Quigley who said this Bill is not the last that can be said on this subject, and with Senator Lenihan also in what he had to say. It is quite true that an examination of the operation of the Bill will be undertaken and when the time comes the experience that has been gathered will be brought to bear in considering whether or not any amendments or changes should be made.

I would not like to be as pessimistic as one distinguished Senator who privately informed me that he wanted to make a point because, as he said: "When you have to amend it in six months' time, I want to be in a position to be able to say: ‘I told you so!'" I hope that situation will not arise but it is true to say that the Bill is, if you like, experimental. It is new; it is a large measure. There is a great amount of innovation in the Bill, and we will certainly have to keep a careful eye on the manner in which it operates and be prepared, if necessary, to have further changes made in the law.

I want again, a Chathaoirligh, to express my thanks for the very reasonable way in which the House has received the Bill. I do appreciate fully that I have come here and asked a lot of the House in asking Senators to deal with the Bill in the very limited time at their disposal. Indeed, I would have expected more criticism on that aspect.

Professor Hayes

The Parliamentary Secretary might have known that I was a nice man.

Mr. Haughey

I am fully aware of that. I should like to mention at this stage to the House that I am very anxious to get my other three Bills, that is, the two Courts Bills and the Defamation Bill. I understand the House will be meeting next week. Would it be possible to get agreement from the House that we would get all Stages of these Bills next week?

The Seanad adjourned at 5.13 p.m. until 3 p.m. on Wednesday, 9th August, 1961.

Seanad Éireann debate - Friday, 4 Aug 1961

Civil Liability Bill, 1960— Second Stage.

Seanad Éireann debate -
Friday, 4 Aug 1961