Special Committee Civil Liability Bill, 1960 debate

Mr. Haughey

I move amendment No. 89 :

In page 28, to delete paragraph (f), lines 1 to 17, and substitute the following paragraphs :

" (f) subject to paragraph* of this subsection—

*This is the paragraph (i) set out in the Bill.

(i) the damages shall be the total of such amounts (if any as the jury or the judge, as the case may be, shall consider proportioned to the injury resulting from the death to each of the dependants, respectively, for whom or on whose behalf the action is brought, and

(ii) subject to paragraph (g) of this subsection, the total of such amounts (if any) as the judge shall consider reasonable compensation for mental distress resulting from the death to each of such dependants

(g) the total of any amounts awarded by virtue of subparagraph (ii) of paragraph (f) of this subsection shall not exceed one thousand pounds;

(h) each amount by virtue of paragraph (f) of this subsection shall be indicated separately in the award ;

(i) subparagraph (ii) of paragraph (f) of this subsection shall have effect only in respect of a death occurring within three years after the date of the passing of the Civil Liability Act, 1961 ;

(j) in addition, damages may be awarded in respect of funeral and other expenses actually incurred by the passenger, the dependants or the personal representative as a result of the accident which caused the death of the passenger ;"

There are three amendments proposed to this section. The first two are consequential on the new section 52. It is proposed to apply the same law to fatal air accidents as that which will apply to ordinary fatal accidents.

The third amendment proposes to delete the references—paragraph (j) in page 28—to the Schedule to the Air Navigation and Transport Act, 1959. That Schedule, which contains the 1955 Hague Protocol to the 1929 Warsaw Convention, has not yet been brought into operation. Provision for bringing it into operation by Government Order is made in section 2 of the 1959 Act. Until it is brought into operation, the Warsaw Convention, which is set out in the First Schedule to the Air Navigation and Transport Act, 1936, will apply.

Mr. Haughey

I move amendment No. 90 :

In page 28, paragraph (g), line 20, to delete " compensation " and substitute " damages ".

Mr. Haughey

I move amendment No. 91 :

In page 28, paragraph (j), lines 40 to 43, to delete ", as amended by the provisions of the Schedule to the Air Navigation and Transport Act, 1959 ".

Mr. Haughey

I move amendment No. 92 :

Before the Schedule, to insert a new section as follows :—

" PART VII

Miscellaneous

For the purposes of subsection (1) of section 34 and subsection (1) of section 47, the fact that any person—

(a) had an opportunity of avoiding the consequences of the act of any other person but negligently or carelessly failed to do so, or

(b) might have avoided those consequences by the exercise of care, or

(c) might have avoided those consequences but for previous negligence or want of care on his part,

shall not, by itself, be a ground for holding that the damage was not caused by the act of such other person."

The proposed new Miscellaneous Part—Part VII—proposes a number of new sections. I shall deal with each of those sections separately.

In amendment No. 92, it is proposed to provide for the abolition of last opportunity in a separate section so as to cover not alone cases within section 34 (1) but also cases within section 47. Despite the fact that there would seem to be no need for a rule of last opportunity in admiralty cases, it nevertheless crept into the law as to collisions at sea. It is necessary specifically to abolish it for these cases also.

By the way, we propose to say at the end of the new section " shall not, by itself, be a ground for holding, etc." The words " by itself " have been inserted to cover what is known as a novus actus interveniens. Suppose that A and B are in a room together and A places a loaded gun on the table. If he does not tell B that it is loaded and watches B play with it, he is, of course liable if B injures himself. But suppose he tells B that it is loaded and then leaves the room. If B, in these circumstances, picks up the gun and plays with it, all operative negligence on A’s part must be regarded as having ceased once he informed B of the danger. Therefore, whether B injures himself or a third person, B alone is the negligent party. It would be wrong in principle, I suggest, to drag in A. However, omitting the words “ by itself ” might lead to the argument that A should be involved. And inclusion of the words “ by itself ” should enable the court to see that we do not intend to affect the general principles of causation and remoteness. I think it is better to have the words in rather than out.

Mr. Haughey

I move amendment No. 93 :

Before the Schedule, to insert a new section as follows:—

" (1) It shall not be a defence in an action of tort merely to show that the plaintiff is in breach of the civil or criminal law.

(2) It shall not be a defence in an action for breach of statutory duty merely to show that the defendant delegated the performance of the duty to the plaintiff."

This amendment proposes to insert the former section 45 in the new Miscellaneous Part, where it appropriately belongs. No change is being made in the section.

Mr. Haughey

I move amendment No. 94 :

Before the Schedule, to insert a new section as follows:—

" For the avoidance of doubt it is hereby declared that the law relating to wrongs shall apply to an unborn child for his protection in like manner as if the child were born, provided the child is subsequently born alive."

This section will give the protection of the law as to wrongs to an unborn child and will overrule the decision of the Old Irish Court of Appeal in Walker v. G.N.R., a case in 1890 deciding that there is no duty owing to a child who suffers injuries while en ventre sa mï¿½re. It was held in 1871 in England, on the other hand, that “ child ” in Lord Campbell’s Act, 1946, included a posthumous child, though this is not exactly the same point. There is a contrary decision to Walker’s Case in Canada, where the Supreme Court in 1933 upheld a judgment from a Quebec Court on the ground that, under the Civil and Roman Law, unborn children, if subsequently born alive, are deemed to be living and to have all rights, including rights of action, that they would have had if actually born at the date of the accident. It is proposed to make the new section declaratory of the law, as it is far from certain that our Supreme Court would follow Walker.

Mr. Haughey

I move amendment No. 95 :

Before the Schedule, to insert a new section as follows :—

" (1) A road authority shall be liable for damage caused as a result of their failure to maintain adequately a public road.

(2) In proceedings under this section, it shall be a defence for the road authority to prove that they-

(a) had given sufficient warning that the road was a danger to traffic, or

(b) had taken reasonable precautions to secure that the road was not a danger to traffic, or

(c) had not a reasonable opportunity to give such warning or take such precautions.

(3) In determining whether a road was adequately maintained, regard shall be had in particular to—

(a) the construction of the road and the standard of maintenance appropriate to a road of such construction,

(b) the traffic using the road,

(c) the condition in which a reasonable person would have expected to find the road.

(4) In determining whether a road authority had a reasonable opportunity to give warning that a road was a danger to traffic or had taken reasonable precautions to secure that a road was not such a danger, regard shall be had to the standard of supervision reasonable for a road of such character.

(5) In this section—

" road authority " means the council of a county, the corporation of a county or other borough and the council of an urban district;

" public road " means a road the responsibility for the maintenance of which lies on a road authority and includes any bridge, pipe, arch, gulley, footway, pavement, fence, railing or wall which forms part of such road and which it is the responsibility of the road authority to maintain.

(6) This section shall not apply to damage arising from an event which occurred before the coming into operation of this section.

(7) This section shall come into operation on such day, not earlier than the 1st day of April, 1967, as may be fixed therefor by order made by the Government."

This Amendment proposes a new section to deal with nonfeasance by a road authority. Nonfeasance will not be a defence to an action for damage resulting from failure to maintain adequately a public road. Under existing law, a road authority are liable for negligent performance of their duty but they are not liable for failure to exercise their duty. In other words, they are liable for misfeasance but not for nonfeasance.

The Government are satisfied that the law should be amended in somewhat the same way as is proposed in England under the Highways (Miscellaneous Provisions) Bill now before the British Parliament.

The section proposed in the amendment will provide certain statutory defences for the road authority; and the factors to be taken into consideration 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, to be fixed by the Government. The section will not apply to damage occurring before that day.

The idea of postponing the operation of the section is to put road authorities on sufficient notice that a new liability is being imposed on them and to give them an opportunity of taking action accordingly in respect of public roads and bridges, pavements, etc., forming part of such roads.

Mr. McGilligan

In England they are giving them three years' notice. Here it is six years' notice. In the English Act, as originally passed by the Standing Committee to which it was referred, the special defence was put into section 2 (b)—that reasonable precautions had been taken to secure that the road is not dangerous to traffic. The first English proposal was to prove that they had taken such steps as would reasonably be required. When it went back to the Committee Stage of the House of Commons they cut out that phrase " taking steps " and put in the word " care ". Their Act now reads " reasonable care "; they changed from " reasonable steps ". We have put in " reasonable precautions ". " Steps " meant something positive. If you simply did nothing, you had not taken any steps. They put in the word " care ".

Mr. Haughey

I did not know about the substitution in the British Parliament.

Mr. J. A. Costello

I think " reasonable precautions " is sufficient.

Mr. Haughey

" Precautions " is wider. " Care " might be too narrow.

Mr. McGilligan

" Steps " meant doing something. Doing nothing might have been " reasonable care ".

Mr. S. Browne

As a member of a public body, I am completely opposed to this section. We in Wexford and most other county councils would be in the same position. To safeguard ourselves we would have to put this warning notice on every public roadway saying that the road is dangerous to traffic. At the present time most road authorities in Ireland are responsible for the maintenance of roadways that could be regarded as a danger to traffic. Already, public bodies are fair game under the Malicious Injury and Malicious Damages Acts.

Mr. Haughey

I appreciate Deputy Browne's point of view. I think it unlikely that we will have any division on any other part of this Bill and personally I would prefer if we could bring in this as the unanimous recommendation of the Committee also. Perhaps Deputy Browne would take the opportunity, on the Report Stage, of putting his point of view to the Dáil.

Mr. S. Browne

You will have every road authority in Ireland up in arms against this.

Chairman

I think I should mention that no local authorities have made representations about this. I believe that there are other members of local bodies on the Committee and they were at least as strong as anybody else in advocating this provision, in private discussions which we had had with the Parliamentary Secretary.

Mr. McGilligan

If the Deputy is right lots of people are suffering injury and being deprived of a remedy from the local authority. It seems to me that he wants to maintain that position.

Mr. S. Browne

If you like, you can look at it that way. Take a county like Wexford, with hundreds of miles of roadways, where it would take many years yet before a substantial part of that mileage is put into what the courts might regard as a reasonable state of repair.

Mr. Haughey

It does not come into operation for five or six years.

Mr. Booth

Does it not provide against hidden dangers on public roads ? You suddenly find yourself on loose gravel or stones and you damage your car.

Mr. Haughey

The condition in which a reasonable person would expect to find the road will operate in that case. Take for instance the road at Courtown Harbour—the road leading to the sea. One of the principles in this section is that, in relation to a road such as that, regard must be had to the standard of maintenance appropriate to a road of such character.

Mr. S. Browne

The court will decide that of course, and probably decide against the local authority.

Mr. J. A. Costello

I presume that a court will decide on all the relevant points put before it. There is no such practice as that of automatically deciding against the local authority at all.

Mr. S. Browne

It is our experience of the malicious injuries code that where local authorities are concerned and where small damages occur the judgments against the local authority have been high. Something similar will happen, to my mind, under this provision.

Mr. T. F. O'Higgins

You are not insured against malicious damage although you will undoubtedly be insured against this.

Mr. S. Browne

I must say premiums will be high to cover it.

Mr. Haughey

There is a practice in some parts of the country under which roads being repaired are left un-rolled and open so that the particular road has to be beaten down by the traffic. If, as a result of that practice, damage is caused to person or property, the road authority are liable because they have negligently performed their duty or not performed it properly. This is the misfeasance case ; and my point is that actions are not being taken, to any noticeable degree at any rate, or at all, against road authorities in respect of damage resulting from the misfeasance. Accordingly, I suggest that it is wrong to conclude that the proposed section will mean a substantial amount of claims against road authorities when in fact claims are not being made against them at the moment because of the practice I have mentioned. Moreover, the section provides the road authority with a number of important safeguards against claims.

Mr. S. Browne

You can take it, Mr. Chairman, that if every county council is, within the limits of its finances, going to do its utmost to put its roads in a reasonable state of repair, it will take a very long time. Six years will not see the end of it.

Mr. Booth

Quite obviously local authorities have been taking advantage of the lack of this law and possibly have been saving money. We cannot expect them to be enthusiastic about this. We are definitely putting an extra load on them, which should have been put on them long since.

Chairman

They are doing it in every other country.

Mr. Booth

It will cost the local authorities some money.

Mr. McGilligan

If local authorities are to insure against this liability the premiums may be very high. The insurance companies will argue that under the new system, a lot of people are likely to be awarded damages, perhaps unjustly. I do not think that premiums will increase all that much because I do not think there will be a lot of these cases.

Mr. S. Browne

You must take the situation as you find it in most counties. We have it in Wexford, where a large mileage of our secondary roads is not anywhere up to date in construction and maintenance and cannot hope to be for many years to come.

Chairman

They have certain rights and obligations.

Mr. McGilligan

It is appropriate to roads of particular construction—main roads, link roads, etc.

Mr. S. Browne

I agree with you on that that it is appropriate to particular roads. You will find, however, that the standards set by the courts will be much higher than any standard up to which local authorities maintain the various types of roads under their jurisdiction.

Mr. J. A. Costello

Courts have to do their duty.

Chairman

Does the Deputy wish to press his point of view ?

Mr. S. Browne

I am utterly opposed to this.

Chairman

Do you wish to be recorded as opposing ?

Mr. S. Browne

Very definitely.

Mr. McGilligan

Where a statutory body has a right to break up a road, for instance, the Electricity Supply Board or a Gas Company, and they want to prevent that particular authority from leaving the road in a bad condition the amendment covers that.

Mr. Haughey

I move amendment No. 96 :

Before the Schedule, to insert a new section as follows :

" Where a person (hereinafter referred to as the insured) who has effected a policy of insurance in respect of liability for a wrong, if an individual, becomes bankrupt or insolvent or dies or, if a corporate body, is wound up or, if a partnership or other unincorporated association, is dissolved, moneys payable to the insured under the policy shall be applicable only to discharging in full all valid claims against the insured in respect of which those moneys are payable, and no part of those moneys shall be assets of the insured or applicable to the payment of the debts (other than those claims) of the insured in the bankruptcy or insolvency or in the administration of the estate of the insured or in the winding-up or dissolution, and no such claim shall be provable in the bankruptcy, insolvency, administration, winding-up or dissolution."

The new section proposes a general provision saying that moneys payable under an insurance policy covering liability for a wrong shall go directly to the injured person and not into the wrongdoer's estate. In effect what I am proposing is an extension to all liability policies of the provision in the present Road Traffic Bill in regard to approved policies.

Mr. Haughey

I move amendment No. 97 :

Before the Schedule, to insert a new section as follows :—

" (1) Where, in an action for a wrong in which the plaintiff is an infant—

(a) a sum of money has been lodged in court by the defendant, and

(b) an application is made to the judge by the plaintiff to decide whether that sum of money should be accepted or the action should go to trial, and

(c) the judge decides that the action should go to trial, and

(d) an amount by way of damages is awarded to the plaintiff by the court which does not exceed the sum so lodged, then, notwithstanding any rule of court or practice to the contrary, the costs in the action shall be at the discretion of the judge.

(2) An appeal shall lie from the order of the judge in relation to the costs in such action."

This proposed section has been prepared following examination of the case made to me by Deputy Costello in regard to cases where infants are plaintiffs. I think I have met the Deputy's point in this amendment.

Mr. McGilligan

I do not like this amendment, I would prefer to see a section in the following terms :

" Where any action in which the plaintiff is an infant is brought to recover damages for a wrong, then, notwithstanding any rule of court or practice to the contrary, payment of money into court by way of satisfaction shall not be admissible and such infant plaintiff, if he recovers damages in such action, shall always be entitled to his costs subject to any statutory provision regulating costs by reference to the amount recovered in the action."

The Parliamentary Secretary's amendment proposes that if a sum is lodged with the defence and the Judge refuses to accept the lodgment and says the action must go for trial then all that this amendment does is to leave the question of award or costs in the discretion of the Judge. If I take the circumstances that may arise here, I go before Judge A and tell him an offer has been made and give him my statement of claim, he will accept it and say that on this statement of claim you should get five times the amount lodged in court. There is some doubt, in my case, about whether I would get over the hurdle of negligence. I will have to say there is some doubt about that and so am prepared to accept a compromise sum. The Judge, however, says that the money that was offered and lodged was completely inadequate to the damage suffered and that he will not allow me to take it. Then the action proceeds and it comes before Judge B. The original offer has not been accepted and the jury awards you less than that lodged. Then costs must, under this proposal, be at the judges discretion. That does not seem to be a lot of good. If the Judge remembers that this is a case in which he refused to approve of a previous settlement, that might prick his conscience and then he might deal with the question of costs in a way favourable to the plaintiff. That is one reason why I object. At the moment, you must get either a lodgment or a settlement accepted and approved of by the Judge. You must go to court in any event. It is absurd to have the possibility of lodgment being more than what was awarded. We have Workmen's Compensation Cases. There you can not deduct anything from a workman's compensation award but in the case of an infant where the offer is £500 or £600, and the case must be tried by a jury, and the infant does not succeed in obtaining more than the offer, the infant may get nothing in the end. The section I have in mind is a very simple one. If an infant can recover damages at all he should be entitled to costs but subject to the usual provision for different types of court costs.

Mr. Haughey

I have an objection to Deputy McGilligan's proposal. I think it places an infant plaintiff at a disadvantage, where a defendant's liability is doubtful. Suppose a defendant wants or is agreeable to settle. The Deputy's proposal will force him to fight the action. The infant might easily lose the action. This would mean that the infant would have to pay the costs. I fail to see how infants would benefit from the Deputy's proposal. Our object should be to facilitate, not to hinder settlements. That is a consideration. Also, we must be fair to defendants. I think the provisions contained in amendment No. 97 are reasonable. It has been suggested to me by some people that we are actually going too far in my amendment. What I propose is to remedy the situation as I understood it from what was put to me by practitioner members of the Committee. A barrister or counsel is put in a very awkward position, on occasion, where he has to act for an infant plaintiff. If he cannot accept the lodgment in court, he has to fight the action with the prospect of getting less or losing altogether. Then his infant client has to pay the costs if the lodgment has not been beaten.

Mr. McGilligan

That is all right but I have not met such fortuitous circumstances. It is the courts themselves that have brought about this position, that an infant plaintiff must get a lodgment approved. My amendment does not cover new territory. There is no doubt about it you may have the very odd case where you might get a better settlement for an infant but it will be a very odd case. With regard to the merits of my proposal, I have discussed this very informally indeed, with two or three members of the judiciary and with many practising lawyers. I have found nothing but enthusiastic appreciation and nobody objected to it.

Mr. Haughey

Am I not right in my assumption that these infant actions would all be fought ?

Chairman

Perhaps this could be resubmitted ?

Mr. McGilligan

I would like to give it a run in the Dáil.

Chairman

Perhaps you will have an opportunity to put it down for Report Stage ?

Mr. Haughey

Deputy Costello might like to discuss it with the Attorney General informally.

Mr. Booth

This would not preclude a settlement. It only precludes a lodgment.

Mr. Haughey

This is purely a matter for practitioners. I think I would prefer that Deputy McGilligan would not press his point of view and would consider whether, on the Report Stage in the Dáil, he would put down an amendment on the lines of his suggestion.

Chairman

I have ruled that amendment No. 97 (b) in the name of Deputy McGilligan, is out of order as it would tend to impose a charge on the Exchequer.

SCHEDULE

Mr. Haughey

I move amendment No. 98 :

In Part III, column (3), to delete " sections 1, 2 and 3 " and substitute " sections 1, 2, 3, 8 and subsections (1), (2) and (3) of section 9."

This amendment is consequential on the earlier amendment containing the new section 47. It is proposed to repeal as much of the 1911 Act as possible. Section 8 of the 1911 Act is a limitation provision which is now included in the new section 47. Subsections (1), (2) and (3) of section 9 deal with the application of the 1911 Act and are no longer necessary.

Mr. Lindsay

Is it intended to bring the White Paper up to date having regard to all the amendments?

Mr. Haughey

Yes.

Mr. Lindsay

At what stage?

Mr. Haughey

We will send it out revised when the Bill has passed both Houses.

Mr. J. A. Costello

As long as we have it when the Bill is coming out, in the same way as we got the final text of the Statute of Limitations Bill with the explanatory sidenotes brought up to date, it will be all right.

Mr. Haughey

Consequent on the Road Traffic Bill now before the Seanad I will find it necessary to move certain amendments on the Report Stage. There are other matters too which I would like to raise on that stage. For instance, there are certain aspects concerned with the law of bankruptcy.

I should like in conclusion to say that I am very grateful indeed to the members of the Committee for the way they have dealt with this Bill. The object has been to get as good a Bill as possible and I appreciate the assistance and co-operation of the Committee.

Draft Chairman's Report agreed to

The Special Committee concluded its business at 9.30 p.m.

Special Committee Civil Liability Bill, 1960 debate - Tuesday, 4 Jul 1961

SECTION 59

Special Committee Civil Liability Bill, 1960 debate -
Tuesday, 4 Jul 1961