Léim ar aghaidh chuig an bpríomhábhar

Dáil Éireann díospóireacht -
Wednesday, 19 Nov 1941

Vol. 85 No. 5

Private Deputies' Business. - Law of Torts (Miscellaneous Reforms) Bill, 1941—Second Stage.

I move the Second Reading of this Private Bill which has been standing in my name for some time past. Beyond the fact that the Government gave this Bill a First Reading, I have had no indication as to the attitude of the Government with reference to the principles embodied in it. The Bill contains four proposals designed to bring about a much needed reform in that part of the law of this country known as the law of torts. While the four principles embodied in the Bill are in need of being passed into law, the purpose of the Bill is not merely to get these particular principles embodied in the legislative enactments of this country, but to direct attention to the fact that there is quite a large body of our law at the moment badly in need of reform. The whole principle embodied in this Bill is that, wherever there are two or more people jointly responsible for committing a wrong to another person, the old rule, which has its roots in the British common law, that those people are jointly responsible to the injured person and that there should be no contribution between the various persons responsible for the injury, should be put an end to.

The first proposal in the Bill is somewhat outside that principle, but it is a principle that has come down from the old British common law at a time when that law regarded the person of a wife as being just united in that of her husband; that husband and wife were one person and that husband and wife had no separate individuality in the law.

Following that principle, the principle that I wish to have repealed, namely, that the husband was liable for the torts or wrongs of his wife, was established. The provision contained in Section 2 of this Bill is that from the passing of this Bill the husband should not be responsible for the wrongs of his wife. That principle has, both in England and in Northern Ireland, been long since abolished. Why we should carry it on in our law I do not know. I have raised this matter and the other matters embodied in this Bill every time that I could get an opportunity, relevantly and irrelevantly, in Estimates and other places, on the passage of the Courts of Justice Act through this House, in an endeavour to seek reform of these outworn principles. I was under the impression that I had got undertakings in reference to certain reforms I had drawn attention to, that they would be attended to, but years have elapsed and, accordingly, I put down this Bill as a first measure in the initiation of law reform in this country. The idea that, if a wife commits a slander on some friends of hers in a golf club or elsewhere, her husband should have to pay for that, although he knows nothing about it, appears to be inequitable and has only justification in a completely outworn principle of British common law.

The third section of this Bill has reference, perhaps, to a more vital and important aspect of the law, particularly in regard to the consequences following upon negligence in connection with motor cars. To take the simplest example, if there is a passenger in a motor car and he is injured by an accident between the vehicle in which he is travelling and another vehicle travelling the road, he has, according to the law at the moment, the right to sue both or either of the drivers of those two vehicles, and the principle is that although one vehicle may be only 1 per cent. negligent in the sense of causing or contributing to the injury and the other vehicle 99 per cent. negligent in the sense that I have mentioned, this passenger can sue both the owners of those vehicles and recover judgment against both and, having recovered judgment from the jury or from the judge for the amount that would compensate him for his injuries, he then has the privilege of executing for the entire of the costs and damages against the owner of the car that is only 1 per cent. wrongful. He can recover from the person who was the least guilty, who was guilty only in the most minor degree, the entire damages and costs, and let the other person scot free. That such a state of affairs should be allowed to have continued so long in this country is due possibly, I think, only to the fact that the Government, in the stress of recent times, have not had their attention sufficiently directed to these matters. This principle has also been abolished in Great Britain and Northern Ireland for some years. The existence of that legal principle is inclined to lead to and has in fact led to very serious abuse. I need not give any great number of examples of cases that have come within my own personal knowledge where a plaintiff, having recovered judgment against the owners of two vehicles involved in a collision, one of the owners of those vehicles or the insurers of that owner has approached the plaintiff, who perhaps has had a verdict for a couple of thousand pounds, and said: "If you execute against the other fellow, you can have an additional £500." In other words, the one man is made to suffer the entire of the costs and damage for which both are responsible, and the plaintiff is given a hand over for relieving the other person from being liable for the whole of it. That has actually happened. It is an abuse that should not be allowed to continue.

The sections of this Bill dealing with this matter carefully and clearly preserve the right of an injured person to recover fully from both or either of the persons responsible, whatever degree they may be responsible for injuring him, but it provides that as between two wrongdoers the court should be in a position to state that one should contribute to the expense and the damages which they both have to pay to an injured plaintiff.

I would like, personally, to go very much further along the road of reform in the law of negligence than this very tenuous proposal endeavours to do. There are many people, I think, at present who would prefer to have the rule that exists in the British Admiralty by which, when various vehicles are in collision, the apportionment of the wrong between them is made by a judge and in accordance with whether one person is half right or half wrong the damages are granted. It occurred to me, at all events, that it would be better to go in stages and to reach after the lapse of some years the position which has existed in England now for quite a number of years and to put forward this modest proposal that the old rule about contribution between joint tort feasors, as it is called, should be put an end to and that, in the first place, if a person gets judgment against one of these joint wrongdoers that that should not preclude him, as the law does at the moment, from suing the other person; and, secondly, that there should be a contribution to the expenses and damage occasioned by two wrongdoers to an injured person as between themselves. If you sue one wrongdoer and get judgment against him and then discover that that person either has no goods on which you can seize or recover for damages or expenses, or is not insured, then you are precluded from going against the other person by the mere fact that you have got a judgment. There is no justification whatever for such a rule and the first part of this section, sub-section 1 (a), provides that that rule should be abrogated. The next paragraph (b), preserves the rights of the person injured, and paragraph (c) provides for the contribution between joint wrongdoers. Sub-section (2) enables the court to fix the amount of contribution between them in accordance with their respective degrees of responsibility.

I should say here that although this Bill does not on its face specifically provide that it is only to have operation as from its date, I think that if the Government accept this Bill or agree to it in principle and introduce something along the lines of it, that it should not be made retrospective, that it should only operate as from the date of its passage in respect of all the provisions in the Bill.

As regards Section 4, I think that that section does introduce a new principle which is not in our law at the moment nor is it, so far as I know, embodied in the law of Great Britain or Northern Ireland. It is a principle which I personally have been very keen on for some time. It is one, however, on which there may be different views. People may have different ideas as to the effect on the law of defamation and the question whether or not it is proper that people who take part in the dissemination of a libel or a slander should be all jointly liable or whether the damages should be apportioned in accordance with their varying degrees of responsibility. That is a matter that I would like to refer to in a moment, but before I develop the principle of Section 4, I would like to draw attention to something that is omitted from this Bill. I had intended to put it down as a separate Bill, but I think if the Government see their way to accept the principles embodied in this Bill and undertake to introduce something like it, they might embody this provision also in it. As the law stands at the moment, under the Fatal Accidents Acts, the dependents of a person killed through the negligence of another person has no right to recover the funeral expenses from the person who was the cause of the death of the party on whom they were dependent. Why there should be such a provision I do not know, but that is the law in this country at the moment. If your dog is killed by a motorist you can sue the person responsible and get damages for it. If your child is killed, it is a million to one against your getting a penny damages. You cannot even get the expenses of burying the child that is killed by the negligence of a motorist, as the law stands at the present time. I move the adjournment of the debate.

Debate adjourned.
The Dáil adjourned at 9.30 p.m. until 3 p.m. Thursday, 20th November.