Civil Liability (Amendment) Bill 1964: Second and Subsequent Stages.

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

This Bill has three main objects. First of all, it proposes that the requirement in the Civil Liability Act, 1961, of certain special findings by a jury or judge in a contributory negligence action should be abolished. Secondly, it proposes that the present temporary provision in the 1961 Act allowing compensation for mental distress in fatal injuries cases should become permanent. Finally, it proposes to state in statutory form the rule that, in assessing damages in a personal injuries action, account is not to be taken of any sum payable to the injured person under any contract of insurance or under any pension scheme.

Because of paragraph (c) of subsection (1) of section 40 of the 1961 Act, the jury or judge, if there is no jury, in a negligence case must find and record whose negligence, want of care,et cetera, contributed to whose or what damage and in what respects. This requirement was based on similar requirements in certain of the Canadian jurisdictions. Our provision has in practice been found somewhat difficult to operate. It has been alleged that it imposes on the jury an unfair and unnecessary task, and that it is a provision that would allow the finding of a jury or judge to be upset if the law were not strictly complied with. After full consideration of the matter, I came to the conclusion that the paragraph in question should be repealed. The Bill provides for this repeal in section 6 and the Schedule.

The Bill also proposes to repeal paragraph (d) of subsection (1) of section 49 of the 1961 Act. The effect of this repeal will be that the provision in that subsection allowing reasonable compensation up to £1,000 in a fatal case for mental distress will become a permanent part of the law. The compensation to be awarded to the dependants of a fatally injured person will continue to be a matter for the judge. What Scots law knows assolatium was first introduced into our law by the 1961 Act. It was considered at that time that some experience should be gained before the concept was permanently incorporated into the law of damages. Accordingly, it was enacted that the relevant provision should have effect only in respect of deaths occurring within three years after the passing of the Act on the 17th August, 1961. So far there have been seventy-nine fatal cases, of which two were Circuit Court cases. I am satisfied from the inquiries I have made that the provision allowing for solatium is operating satisfactorily and that, being a desirable provision, it should be made permanent.

Section 2 of the Bill proposes to state in statutory form what was understood to be already the law in personal injuries cases when the 1961 Act was being enacted. However, doubt has recently been raised in England by a majority decision of the Court of Appeal there in a case involving a particular type of pension. To avoid any such doubt arising here, section 2 of the Bill provides that, in assessing damages in a personal injuries case, account is not to be taken of any sum payable in respect of the injury under any contract of insurance or of any pension, gratuity or other like benefit payable under statute or otherwise in consequence of the injury. There is already a corresponding provision in section 50 of the 1961 Act in so far as concerns fatal injuries. I should mention that payments or pensions under either section 2 of the Bill or section 50 of the Act do not include compensation under the Workman's Compensation Acts. These Acts themselves make special provision for the award of workmen's compensation and civil damages. An injured person or his dependants may not recover both compensation and damages.

Sections 3, 4 and 5 contain the remaining proposals in the Bill. These sections involve clarification of existing provisions in the 1961 Act, and they have been designed to cover matters that came to my attention since the 1961 Act was enacted.

Section 3 will add a new subsection to section 27. The idea of the new subsection is to ensure that an alleged wrongdoer, sued by the injured person and wishing to obtain contribution from a fellow wrongdoer, may make a claim or serve a third-party notice, although he denies or does not admit that he is a wrongdoer. Also, the making of the claim or the serving of the notice is not to be taken as implying any admission of liability. One of the objects of sections 21 and 27 of the 1961 Act was to give a wrongdoer a general right to contribution from any fellow wrongdoer, provided he exercised that right in the injured person's action. This was to ensure that all matters arising out of a particular set of circumstances would, as far as possible, be heard and determined at one and the same time. It has been suggested that there is a danger that a judge would hold that a person wishing to claim contribution under section 27 of the 1961 Act would have to admit that he was a wrongdoer. While my own view is that the section could not reasonably be read in this way, I feel that it would be better specifically to negative any such interpretation. This is what section 3 of the Bill seeks to achieve.

Section 4 of the Bill proposes to make subsection (2) of section 35 of the 1961 Act subject to paragraph (a) of subsection (1) of the same section. The reason for this is to ensure that, in an action for loss ofconsortium or loss of services, the plaintiff will, for negligence purposes, be identified with his wife or servant, where the wife or servant was acting in the course of her or his employment with the plaintiff. This was the law prior to 1961; and one of the objects of the 1961 Act was to continue that law. It has been argued that the law has, in fact, been amended because the rule as to vicarious liability stated in subsection (1) (a) of section 35 does not specifically govern the rule in subsection (2) as to actions for loss of consortium or for loss of services. This, I may say, was never the intention. Section 4 of the Bill clarifies the matter.

It is proposed in section 5 of the Bill to add a new subsection to section 36 of the 1961 Act in order to ensure that what is known as "the principle of cross-liabilities" will apply to every claim against an insurance company. I can best explain the problem by an example. Suppose that A and B are involved in a accident, and that, after apportionment of fault, A gets judgment for £500 and B gets judgment for £400, thus making A entitled to £100 after set-off of B's judgment against him. The sum of £100 is paid to A by B's insurance company. B, under section 36(4) of the 1961 Act, is entitled to recover from his own insurance company the sum of £400 deducted by the company in settling A's judgment. A should have a similar right against his own insurance company in respect of B's judgment However, subsection (4) of section 36 does not in terms give him this right, though the intention of section 36 was to ensure that the two insurance companies would between them, meet their aggregate liability for £900 in full. This is now being made quite clear.

The principle of cross-liabilities is being applied to both B's and A's case. This principle has for many years been enshrined in marine insurance policies, and is written in to all policies by subsection (3) of section 36 of the 1961 Act. By reason of the proposed new subsection, if A becomes bankrupt, his insurance company will not be able to enrich itself to the extent of a debt owed to him by B. The corollary is already the position where B becomes bankrupt. Under section 62 of the 1961 Act, moneys payable to an insured person under an insurance policy in respect of liability for a wrong are, where the insured becomes bankrupt, applicable only to discharging in full all valid claims against the insured arising out of the wrong. This protects the injured person where the wrongdoer becomes bankrupt. Section 36 protects the creditors of the bankrupt, although the section applies, of course, in cases other than bankruptcy.

I commend the Bill to the House.

This is a non-contentious type of Bill which has been introduced principally, I would say, to tidy up certain doubts or certain effects which were not anticipated but which followed from the principal Act, the Civil Liability Act of 1961. There is no objection to the Bill from this side of the House. As a matter of fact it is a type of Bill which might usefully be introduced in the Seanad, instead of the Dáil.

The Bill proposes to abolish the section of the 1961 Act which limited the right of a person to recover compensation for mental distress, following the death of a dependant, to three years. For the first time, the 1961 Act conferred on a court the right to grant compensation for mental distress to the dependants of a person who had been killed through the negligence of another. I agree with the proposal to make that right a permanent right. The ceiling of £1,000, as was said in the Dáil, is too low. I do not believe the full amount of £1,000, has ever been awarded by a judge since the 1961 Act was passed. The courts, in awarding compensation under this section, must keep in mind that £1,000 is the ceiling, and are therefore inclined to cut down on the amount of compensation to be awarded. The ceiling might very well be removed and discretion given to the courts to award compensation. It is the judge who awards compensation in this case and not the jury. The judge could be relied upon to award a reasonable amount of compensation. There are cases where a sum of £1,000 would not be adequate.

The Minister seems to be satisfied with section 2 as drafted. The question was raised in the Dáil as to whether the effect of it might not be to exclude from consideration workmen's compensation under the Act. I think, and some other people think, too, that it is open to argument, and that a case could be made that workmen's compensation would fall into the very wide definition of section 2 (b) which refers to any pension, gratuity or other like benefit payable under statute or otherwise in consequence of the injury.

Workmen's compensation could be said to be a pension or other like benefit. It is certainly payable under statute. If there is a clash between two statutes, I do not know which would prevail. I feel the latter would be deemed to have revoked the earlier one. If the Minister is satisfied about this beyond doubt, and his advisers are, it is all right but it is a bad job winning by a photo-finish. If there is any doubt about it, it should be put beyond doubt. It is like the jockey leaving a race to the last 100 yards and then winning by a photo-finish.

The bookies still pay.

Sometimes the horse has left it too late. If this is a question of a photo-finish, it should be beyond doubt at this stage. The other sections in the Bill are more or less declaratory sections for the purpose of clarifying the law or rectifying the sections which were not allowed to go through in the earlier Bill. I should like to hear the Minister's comment on section 2 (b) about the ceiling for mental distress.

Senator Fitzpatrick is right in saying that the question of whether the ceiling is adequate was raised in the Dáil. It is very difficult to measure mental distress in financial terms so as to say what amount of money is adequate to compensate a person for the mental distress caused by the loss of a relative, be it a parent or a child.

We approached this matter with very great caution in 1961, because it was new to our law. We had regard to the fact that in Scotland, where there issolatium, the figure was £750. Taking everything into consideration, we settled on £1,000. It seems to me that this provision allowing for £1,000 maximum is working well and has not caused any adverse comment. For the moment, I think we are justified in leaving the figure at £1,000, though, of course, any fixed figure in a statute like this must necessarily be reviewed from time to time, having regard to the fall in the value of money over a long period. We shall be keeping an eye on the situation, with particular regard to the adequacy from time to time of the maximum of £1,000.

I am assured that the provision in section 2 does not include, and could not be held to include, workmen's compensation. The rule of interpretation isgeneralia specialibus non derogant, that is to say, general enactments do not affect special ones. The workmen's compensation code is a special enactment.

The draftsman was satisfied that workmen's compensation could not be held to be a pension, gratuity or other like benefit, and I think we are safe enough in leaving the section as it is. Apart from that, there is the fact that the Government have announced their intention to abolish workmen's compensation as we know it and to substitute an entirely different system.

Question put and agreed to.
Agreed to take remaining Stages today.
Bill put through Committee, reported without amendment, received for final consideration and passed.