Special Committee Law Reform (Personal Injuries) Bill, 1957 debate -
Wednesday, 3 Dec 1958

SECTION 1.

Minister for Justice (Mr. Trynor)

I move amendment No. 1 :—

In page 1, before Section 1, to insert the following new section:—

" (1) In this section ‘ personal injuries ' includes any disease and any impairment of a person's physical or mental condition, and ‘ injured ' shall be construed accordingly.

(2) It shall not be a defence to an employer who is sued in respect of personal injuries caused by the negligence of a person employed by him that such person was, at the time the injuries were caused, in common employment with the person injured.

(3) Any provision contained in a contract of service or apprenticeship or in an agreement collateral thereto (including a contract or agreement entered into before the passing of this Act) shall be void in so far as it would have the effect of excluding or limiting any liability of the employer in respect of personal injuries caused to the person employed or apprenticed by the negligence of persons in common employment with him.

(4) The defence of common employment shall not be open to the Minister for Finance in any proceedings brought against him under Section 170 of the Road Traffic Act 1933 (No. 11 of 1933), or under Section 7 of the Fatal Injuries Act, 1956 (No. 3 of 1956)."

This amendment proposes to insert a new section for Section 1. The new section, in sub-section (1), defines " personal injuries " in the same way as that expression is defined in the Statute of Limitations, 1957. Subsection (2) restates Section 1 of the Bill in a slightly varied form. The draftsman thinks that the words " that such person " should be substituted for " that that person ". This is merely a drafting point.

Sub-section (3) proposes to prevent an employer agreeing with his employee to contract out of the proposed Act. This is a very important provision, as, without it, the Bill as enacted could well become a nullity. There is a similar provision preventing contracting out in the Workmen's Compensation Act, 1934.

Sub-section (4) applies the provisions of the Bill to the Minister for Finance. The defence of common employment will not be open to the Minister for Finance where he is sued for injuries (whether fatal or non-fatal) caused by the negligent driving of a State-owned motor vehicle. Normally, the State is not responsible for the negligence of its employees for the reason that the relationship of master and servant does not exist between the State and its employees. The Minister for Finance may not be sued for the torts of a State servant except where a mechanically propelled vehicle is concerned.

My amendment covers the points raised in amendments Nos. 2, 3 and 4. I indicated on the Second Stage that the Bill should be amended as is now proposed.

Chairman

Your amendment No. 2, Deputy Kyne, is literally the same ?

Mr. Kyne

Yes. I accept that. Perhaps the one that is different is amendment No. 4.

Chairman

May I take it that you are not moving amendment No. 4 ?

Mr. Kyne

In regard to amendment No. 4, perhaps I am wrong, but I would suggest that it is more comprehensive than the Minister's. If I understand what he said, if a forestry worker loses his eye through the act of a fellow-employee in the Forestry Division of the Department of Lands, the defence of common employment will not be excluded. Did the Minister say that a forestry worker has not the right to sue ?

Mr. Traynor

He has no right to sue for damages. No State servant may sue the Minister for Finance except where the injuries arise out of a road accident.

Mr. Kyne

Would the Minister consider it desirable that that should be changed ?

Mr. Haughey

Not in this Bill surely ?

Mr. Kyne

No, I suppose not in this Bill. I shall be honest and admit that I did not realise that that was the law. I accept the Minister's statement. It clears up the objection I had to his amendment.

Chairman

What is the position of a forestry worker who is injured other than in a road accident ?

Mr. Traynor

If the forestry worker is injured and a State-owned motor vehicle is not involved he cannot sue the Minister for Lands or the Minister for Finance because the relationship of master and servant does not exist between a Minister and State employees. A special provision was put into the Road Traffic Act of 1933 to cover State-owned vehicles. The Minister for Finance is liable under the Workmen's Compensation Act.

Chairman

However, that Act is not strictly relevant to this Bill.

Mr. Larkin

Is the Minister's liability limited to workmen's compensation ? I take it that applies to any employee of the State ?

Mr. Traynor

Any employee earning up to £600 a year may be granted workmen's compensation. Apart from workmen's compensation, no other remedy is open to him except where he is injured by the negligent driving of a State-owned vehicle.

Chairman

I take it that amendment No. 4 is not being moved? That means that the Minister's amendment is before us. It will be a new section as set out here, instead of Section 1 as in the Bill originally.

Mr. Traynor

We are dealing with amendments Nos. 1, 2, 3 and 4 together.

Chairman

The new section will be as the Minister suggests.

Mr. S. Flanagan

There is one point I should like to raise. Would it not be possible to bring in a short Bill to cover this question of contracting out?

Chairman

We have the prohibition on contracting out in other pieces of legislation. What Deputy Flanagan wants to know is would it be well to have one piece of legislation covering contracting out generally ? That is another day's work.

Mr. Traynor

It does not arise on this Bill.

Mr. S. Flanagan

I know, but would it not be a good idea to have such legislation ?

Chairman

What we are doing now is deleting Section 1 as it stands and inserting the new section contained in amendment No. 1 in the name of the Minister.

Amendment agreed to.

Amendment No. 2 not moved.

Section 1 deleted.