Dáil Éireann díospóireacht -
Friday, 31 Jul 1953

Vol. 141 No. 8

Committee on Finance. - Workmen's Compensation (Amendment) Bill, 1953—Committee Stage (Resumed).

Mr. O'Higgins

On behalf of Deputy Declan Costello I move amendment No. 3:—

In sub-section (1), paragraph (a), page 2, lines 32 and 33, to delete "who was married to him at the time of the accident".

The purpose of this amendment is to deal with the type of case mentioned by Deputy Everett a few moments ago. It is to provide that the wife in respect of whom an allowance is to be paid will be the workman's wife no matter when he was married. As the section stands at the moment it does appear to me that it is full of defects. A number of questions arise in it which are the subject of other amendments but certainly this question does arise that as it is proposed under the section to compensate workmen, only a workman married at the time of the accident will receive any compensation. If at that time he is a single man and he subsequently decides to marry neither in respect of his wife nor any children will he receive any increase or allowance. I do not think that is correct or fair. Even though the Minister may be insistent that the single man shall not get any increase, at least he should concede that where a single workman marries he should be entitled to the same allowance in respect of his wife as if he had been married before the accident. That is the purpose of this amendment. It seeks to bring single men subsequently marrying into the same category as a married man at the time of the accident.

Might I also mention to the House and to the Minister that the section as it stands in relation to payment to the wife also has a defect in the case of a workman married at the time of the accident—possibly a young married man with a small family—who is injured and whose wife subsequently dies; if he remarries, apparently under the section as the new wife would not be the wife married to him at the timeof the accident no payment can be made to her. This amendment would cure that defect in the Act and I commend it to the House.

Mr. O'Donnell

I would like to support this amendment. As I said previously the section as it stands encourages celibacy. I can visualise the case which Deputy O'Higgins has mentioned but there is another very important case, that of the widower with a very large family who becomes a recipient of workmen's compensation. He may find it an absolute necessity to remarry for the purpose of finding some person or other to look after his children. As the section stands at the moment, no provision whatever is made for the payment of compensation to the second wife.

Again we can think of the case of a single man who is engaged to be married. He meets with an accident but no provision is made for his future wife under the Bill as it stands. He is left with the option of marrying on a single man's compensation or of facing an action for a breach of promise—one or the other. I say it is un-Christian and un-Catholic to make no provision for a workman who may marry or may remarry, or to make no provision for a widower with a large family who may find it a necessity to marry. He cannot afford to keep a housekeeper and there may be no female person in the house to look after his small children. I think that this is an amendment which should commend itself to the Minister and to the House generally.

Dr. Ryan

I am glad that the last two Deputies are beginning to appreciate that there is something in the Bill for dependents and that there is some merit in providing that a man can draw benefit for a wife.

Mr. O'Donnell

That is conceded.

Dr. Ryan

That is not an easy matter to deal with in present circumstances. I have had to mention over and over again in respect to many provisions in this Bill that many amendments could and would be willingly accepted if the Bill provided for a nationalised or a compulsory insurance scheme. We have neither at the moment but I quite agree with the two Deputies who havespoken that from either point of view an amendment like this should be accepted. I want, however, to put the case of the small employer who has to pay compensation to a single man and who might find it difficult enough to pay that compensation. He should, I think, at least know what his liabilities are and the future should not be uncertain so far as he is concerned. For that reason, I am afraid we cannot accept this amendment until some comprehensive measure is brought in which will be either a nationalised scheme or a compulsory insurance scheme. If a comprehensive scheme were to continue these dependent's allowances, I doubt if either of the Deputies who have spoken would be in favour of continuing these allowances. Under a comprehensive scheme I think they would be provided for but in present circumstances I am afraid I could not accept the amendment.

Mr. Norton

Is there any insuperable difficulty in getting the insurance company to accept this obligation?

Dr. Ryan

They would accept it, but I am talking about the small employer who is not insured.

Mr. Norton

I wonder if the Minister is not playing that up more than he should? I cannot say what number of policies are in existence at the moment but many of these men are insured.

Dr. Ryan

The great majority of them are insured, surely.

Mr. Norton

The Minister is giving that small man, whoever he is, an unduly important position in this whole question. I do not think that the small employer is as ubiquitous as the Minister thinks. Apparently, not only is he a small employer but he must be a bad employer because he has never taken out an insurance policy to cover his employees. Should we deny others, who are covered by policies taken out by their employers, the benefits which they could get under this section because a few small employers refuse to take out policies? I think the Minister should look into the matter between this and Wednesday next to see if he could meet the point. I do not travel the whole waywith Deputy O'Donnell's argument but there is something in the point of view that if a man meets with an accident before he marries he should not be handicapped by having to exist on a single man's allowance after he gets married. If we had a compulsory insurance scheme we would certainly accept this risk but we have not as yet got such a scheme. As a Deputy truly said earlier to-day, we have operated for 53 years on a certain principle. We have gone on the principle that an injured man gets the same amount of compensation whether he is married or not up to this.

Mr. O'Higgins

The basis of the Minister's opposition to the amendment, as I understand it, is that an employer is entitled to know his risk.

Dr. Ryan

Yes.

Mr. O'Higgins

That is quite understandable but surely the whole Bill is the antithesis of that. You provide in the Bill for a workman who is injured. Up to that he is merely a name on a roll. He becomes injured and then it is discovered that he is married and that he has seven or eight children. The employer must then pay him 50/- per week plus 12/- for his wife, plus 7/- in respect of each child. Up to the actual accident, the employer was unaware of the extent of his liability. If the Minister's argument were to be carried to its logical conclusion, the employer would be entitled, first of all, to carry out an examination of the household of the workman he was employing.

I frankly cannot see where there is an objection in principle to the proposition that a workman who is injured and then marries should be regarded for what he is—a man with all the difficulties of a married man—and that he should be compensated on that basis. I do not think that the suggestion that because some small employer does not insure, he may not be in the position to pay the extra 12/-, can be advanced as an argument. In fact, getting down to reality, no employer from the passing of this Bill can afford to be uninsured in relation to workmen's compensation. If he is uninsured then he is a fool and he does not deserve any sympathy at all.

Dr. Ryan

He is a fool all right.

Mr. O'Higgins

I think, while we have not got compulsory insurance and while it is not an offence not to be insured, the same position is going to be arrived at by the passing of this Bill and, indeed, I think, was arrived at some years ago when the compensation went up to 50/- a week. No employer now, for the sake of the small outlay involved, contemplates the employment even of a domestic servant without ensuring that he is covered for the risks involved both for the payment of accident compensation and death compensation. I would press the Minister to accept the amendment. I think it is an amendment that we should all insist on because I can see from the passing of this Bill into law a considerable number of cases of injustice arising. I do not think that where a little effort on our part can avoid an injustice we should not take that effort in the manner in which the Minister suggests.

Mr. Norton

I think there is a danger in this whole business. What we are doing now is not without immense possibilities for exploitation by the insurance companies. I do not know in what way they will assess their premiums in future. The present position is that one gives the number of staff employed, and the total wages bill and compensation is assessed on that basis because there is no discrimination between married and single men. I do not know what the companies will do in future, but clearly the wages bill plus the number employed will not be sufficient if there is to be a varying rate for single men, for a man and his wife, for a man, his wife and one child and for a man, his wife and two children.

Whether insurance companies will allow that human light and shadow to play any part in the calculation of premiums, I do not know, but I expect they will not. They will decide on a flat rate for maximum liability on the basis that every insured person is a man with a wife and two children. One justification for that would be that one never knows when a single man mayget married. He may get married a month after being insured, and if premium is calculated on the basis that he is a single man on the 1st January and he gets married in the month of February, when he becomes liable for compensation he may have a child as well as a wife, and the company might have to pay 50/- for himself, 12/- for his wife and 7/- for the first child. One cannot keep tabs on the situation from day to day, observing how the love affairs of one's staff are progressing and, therefore, the best thing to do is to assume that every man is a married man for the purposes of premium.

The insurance companies will not take steps to find out if John Murphy is married or single, if he has one or two children. They will not worry their heads as to the prospect of his getting married. They will look for some easy way out, and the easiest way out will be to fix the premium on the basis that their liability will be to cover the risk of a man with a wife and two children. If they do that, why should they not be asked to take this liability because the premium will be based on the assumption that the man will make a demand on the basis of a wife and two children? They will not worry their heads as to whether a man is married, is likely to remain single or to get married. I think there is a very good case for this and the insurance companies ought to be asked on what basis they will calculate the premiums. It would be a proper mess if premiums were assessed on liability to pay a married man with a wife and two children while, in actual fact, they would only be paying on the basis of what a single man had. We will have the Report Stage next week and the Minister can find out between to-day and next Wednesday from the insurance companies whether, in fact, that will happen.

Dr. Ryan

This matter is being discussed with the companies at the moment. They never ask any employer for the names of his employees. They do not ask whether they are married or single. What they asked my Department to do was to give them some rough estimate of the number ofmarried people in social insurance and the number who have one or two children. We were not able to give them a very accurate figure on that. We had samples taken out and we were able to give them some figures and it is on that figure that the premium is based. Suppose half the employees in a concern are single and the other half married; suppose that of that half 16 per cent. have one child and 32 per cent. have two children; assume there are 100 people employed; on that average the claims will be increased by so much. It is on that the insurance companies are basing their premium. They will not inquire as to whether or not a man is married. They will take the average. One employer who has all single men in his employment may be wrong to some extent vis-à-vis the employer who has nothing but married men because the man with the single employees should have a lower premium to meet, but he will not have a lower premium because the premium will be the same all round. The companies are simply bulking it all together and facing the liability.

Mr. O'Higgins

Then there is no difficulty from the insurance company point of view.

Dr. Ryan

My point was not adverted to by Deputy Norton. If everybody was insured I would not have so much objection to the amendment. Unfortunately, everybody is not insured and that may mean that the small employer may be uncertain about his liability. As Deputy O'Higgins says, he is uncertain of his liability until a man meets with an accident. Perhaps it is not until then that the employer discovers his employee is a married man. When the accident occurs and the employer discovers what his liability is, at least we can say now that he knows his liability. If he finds his employee is a single man and he settles to pay him so much per week, I think it would be unfair that in five or six years' time this man should come back and say: "I am married now and you will have to give me another 12/- per week." That is the point. If we arrive at a comprehensivescheme, we will either have a nationalised scheme or compulsory insurance and when that time arrives this could be included.

Mr. Norton

So far as this small man, who has got into the discussion somehow or other, is concerned, he is a person who wants to avoid his social obligations. Why should we not give all the others the benefit of getting this increased compensation? If the small man chooses, in face of the warnings conveyed by this Bill and the six weeks' interregnum which he will have in the form of notice before the appointed day why should we not make him carry the obligation even if he cannot discharge it? Should we not, in any case, protect the other people? Would the Minister not put the obligation on him and, if he cannot meet it, he cannot meet it, but there are a lot of others who may not meet it, either.

Dr. Ryan

We do not want to make him a bankrupt.

Mr. O'Higgins

That is not much consolation to the unfortunate workman with 50/- per week compensation who marries.

Dr. Ryan

For the last 50 years he got nothing extra when he got married.

Mr. Larkin

The point is that the Minister is now proposing to give something to the man who is married. This reminds me of discussions on political economy: they are all based on the supposition that every capitalist is a small employer working for himself.

Dr. Ryan

No. There is the exception.

Mr. Larkin

The Minister has no knowledge how many exceptions there are, but, because there may be an exception, we will do two things. Firstly, because there may be an exception we will discriminate against the man who meets with an accident and who is not married at the time, and, secondly, something else will happen arising out of the exception as to how the insurance companies will see the position. The Minister saysthey will find out the relative percentage of married and single people in employment and strike a flat rate. I have no doubt that that rate will be struck on the supposition that not merely are there a number of married people in employment but that all the single people will eventually get married.

Minister for Industry and Commerce (Mr. Lemass)

They will surely adjust the rate according to their experience.

Mr. O'Higgins

They will strike a mean.

Mr. Larkin

If there are 100 men in a particular job and 60 are married and 40 are not, at some stage a great many of the 40 will get married. It is not just on a theoretical calculation of so many employees married and so many unmarried that insurance companies will base their premiums. They will allow for men becoming married and charge accordingly.

So far as the section stands at the moment in the case of a man who is unfortunate enough to meet with an accident just before he gets married he is out of luck unless his employer has paid on the basis that he will get married. Why should we let the insurance company get away with that? On the supposition that we have these mythical Robinson Crusoes, they do not even know they can get cover against this kind of liability. Even from the point of view of protecting the worker, is it not important that we should get the smallest employer to have insurance cover? We will only do that by educating them. That is long overdue when we think of some of the cases we ourselves have come across. It is not fair that we should have these theoretical individuals, departmental officials, always thinking that we should discriminate against the worker who has a legitimate claim and a legitimate right to get married, and for whom the employer is going to pay. This is just because you may have somewhere in the far end of the country some individual who does not know about these matters.

Mr. Lemass

Is it not because employersin the rural parts do not insure?

Mr. O'Higgins

That is not so. As a member of the Bar practising largely in the country areas, I can say that it is extremely rare to find in a workman's compensation case in which an agricultural labour is concerned where the employer is not now insured.

Mr. Lemass

As regards this amendment, I have been discussing it with the Minister. He thinks that the arguments which he has advanced are quite sound. He thinks it unreasonable in the case of compensation which is payable not by the State but may be payable by a private individual, to have the variable risks that could arise in this case. Nevertheless, he thinks that it is a matter that he should consider further, and he is prepared to consider it.

Mr. O'Higgins

Between this and Report Stage?

Mr. Norton

That is the advantage of having the Report Stage next week.

Amendment, by leave, withdrawn.

Mr. Larkin

I move amendment No. 4:—

In sub-section (1), page 2, line 35, to delete "fifteen" and substitute "sixteen".

The Minister has pointed out to us the desirability of bearing in mind the present social welfare code. In every other form of State insurance, the age limit in respect of children is 16. The Minister has taken over the age of 15 from the Workmen's Compensation Act in respect of the Schedule dealing with the calculation of means of juvenile dependents. The matter is a small one, and I think it would be only proper to keep the age of the child in this respect at 16 so as to be in line with other State insurance.

Mr. Lemass

The Minister has explained to me that while his attitude to this amendment is sympathetic enough, he does not think that the change should be made in this Bill, because if it were made a substantial number of consequential changeswould be necessary in the Act of 1934, in order to avoid anomalies. The age limit of 15 was put into this Bill for the reason that it is the age fixed in the Workmen's Compensation Act of 1934 to distinguish juvenile from adult dependents in fatal cases. The adoption of the amendment would give rise to anomalies. If a person between 15 and 16 was treated as a juvenile in a non-fatal case, he would be treated as an adult if the case ultimately became a fatal one if this amendment was to be made. To avoid these anomalies and to be logical, it would be necessary to alter the Schedule of the 1934 Act, which deals with the calculation of compensation in fatal cases.

Deputies who remember that Act will know that the Schedule is a fairly long and complicated one, and that it would be impossible to prepare the consequential amendments within reasonable time. The Minister is urging, therefore, that this is a change which should be considered in connection with the comprehensive review of the workmen's compensation code which it is intended to bring in later.

Mr. Norton

We think it is reasonable, in view of these arguments, to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr. Lemass

I move amendment No. 5:—

Before sub-section (8), page 4, to insert a new sub-section as follows:—

(8) Where a workman has accepted a weekly payment which does not include a supplemental allowance or which includes a supplemental allowance less than the maximum, he shall not be entitled to any additional payment by way of supplemental allowance in respect of any week unless the claim for that payment is made within six months after the end of that week.

The effect of the amendment is to render a supplemental allowance in respect of any week recoverable only within six months of that week. The purpose is to place a limit on the liability of the employer for the payment of supplemental allowances wherethe workman omits to look for payment of the allowance.

Mr. O'Higgins

I take it that this is directed towards the workman at present drawing compensation.

Mr. Lemass

Where he has accepted a weekly payment that does not include the supplemental allowance.

Mr. O'Higgins

If he does not seek it now he merely has six months.

Amendment agreed to.

Mr. Larkin

I move amendment No. 6:—

In sub-section (8), paragraph (a), page 4, line 34, to delete all words after "him" to the end of the paragraph.

This is a matter that was discussed on the Second Reading of the Bill. It largely revolves around the question of children born to a man who meets with an accident. It confines his claim, as far as supplemental allowances are concerned, to children born not later than nine months after the accident. Why should it not apply to children born after a longer period than nine months? We had much the same kind of argument in regard to the supplemental allowances in the case of the wife where the marriage took place after the husband's accident. Why should this be confined to a period of nine months? Quite clearly there can be cases in which a birth can take place quite normally after the expiration of a period greater than nine months. The fact that the section is so worded will deny a man any claim in respect of that child. We feel that, in the case of supplemental allowances in respect of a child, they should be effective in respect of children born after the accident takes place and of children born before it. Why have this line of demarcation by saying that no claim can arise in respect of a child born in any period preceding the nine months?

Mr. O'Higgins

The principle in the Bill seems to be that there is now going to be a differentiation between a single man and a married man. The married man who is insured is compensatedin accordance with his family. If he has a wife, and no children, he gets certain compensation. If he has a family he gets compensation under Section 3. The whole principle is to compensate the married man, as such. That seems to me to involve the consideration that the family will increase in the ordinary natural way and may be expected to increase.

As the section now stands, the Minister, having decided to compensate the family man as such, seeks to differentiate between pre-accident and postaccident children. I cannot see where that differentiation could arise as a matter of principle. There are other aspects of this question. From the point of view of public policy, it is quite objectionable for us to legislate in this way, to legislate that a man who is married and has a family should not be entitled to be compensated in respect of any new arrivals in the family. That is contrary to public policy and is also introducing a very unfair discrimination between different classes of married men who are injured. It also appears to be repugnant to the principle underlying the Bill.

I adopt the other arguments mentioned by Deputy Larkin which are very much in accordance with what we urged on the earlier amendment, No. 3. There is a matter of principle involved here which I would urge on the Tánaiste to consider carefully between now and Report Stage.

Mr. Lemass

I will agree that if there is any case at all for amendment No. 3, any case for allowing additional compensation to be paid where the worker has acquired a wife after the accident, the same case can be made for this proposal where he has acquired an additional child after the accident, and I would ask, therefore, that it be left over to be considered.

Mr. Norton

The risk, as far as the insurance company is concerned, is either 7/- or 14/- a week—not a great risk. The whole section only covers two children and this has a moral aspect quite apart from compensation.

Mr. Lemass

If the legislation is based on a situation in which an employer is not compelled to insure, one must assume that the employer may exercise his right not to insure and it is necessary to have regard to the position that may be created for such employer. It is always the small employer, of course, who is most likely to be affected by a claim of this kind. It is always the small employer who would be wise to insure. Many large employers do not. They carry their own risk and build up a reserve fund against risk. The small employer cannot afford to do that and therefore it is in relation to the small employer who employs only one or two workers that one has to consider the effect of the legislation.

Mr. Larkin

Apart from considering amendment No. 6 in the light of the considerations that may be given to amendment No. 3, would the Minister bear in mind that whatever may be the view arrived at in that matter from the general point of view, consideration might be given to the question of the nine months' period itself, apart from the more general question?

Mr. Lemass

Yes.

Mr. Hickey

Surely there is a high principle involved when you say that such-and-such must not be paid because such-and-such has occurred.

Mr. Lemass

May I put this point of view? When we are passing legislation which will impose charges on State funds, what we do is our responsibility. We should be far more careful when passing legislation which imposes charges on private citizens. We should be more certain that we are doing justice than when the financial consequence of our decision is one that has to be borne on public funds.

Mr. Norton

Will the Minister bear this in mind? As I said earlier, I have a suspicion that the insurance companies, in fixing the premium, will advert to the fact that this particular man has a wife—he has to have a wife; otherwise he does not come under this section—and in all probability he will have a child during the year in thefamily, and the premium which is being imposed on that man's employer will take notice of the fact that he has a wife and, as a fair probability, will have a child. The premium having been fixed on the basis that he has a wife and is likely to have a child, if he discovers that he cannot get compensation for the child although the employer paid on that risk, it is simply lining the pockets of the insurance company. I want to make sure that they do not get away with anything to the detriment of the injured worker. They could easily carry this risk.

As to that mythical small man whom we have not seen yet, that person is capable of warping our whole approach to this problem. Why should not an ordinary person who is employed by a wealthy corporation be entitled to compensation in respect of the child born nine months after he meets with the accident? By trying to protect this mythical man we really, consciously or unconsciously, are doing great harm to people who are not employees of this poor small man, as he was described. We should be fair to others even if we want to protect that fellow.

Mr. Lemass

The two cases, the child and the wife, stand together.

Amendment by leave withdrawn.

Amendment No. 7 not moved.

Section 3, as amended, put and agreed to.

SECTION 4.

Mr. Larkin

I move amendment No. 8:—

In line 44 to delete "six" and substitute "eight".

The purpose of the amendment is to fix the income limit in the practical application of the Act in so far as the non-manual worker is concerned at £800 per annum instead of £600. This is a matter on which there can be different viewpoints. Presumably, in arriving at £600 the Minister has again been guided by the figures in the Social Welfare Act. I would again press the view that until such time as we are dealing with the workmen'scompensation code on a comprehensive basis and, perhaps, treat it either under a system of State insurance or some other system radically different from the present code, it is not fair to determine our attitude in all these matters purely on the basis of what is in the social welfare code, because we have no guarantee at all at the moment that if we come to deal with the code in a comprehensive way we will follow the existing social welfare pattern in any close degree. We may take an entirely different line. So that I would appeal that in determining what should be the income limit so far as non-manual workers are concerned it should be a fairly pragmatic approach as to where is the point at which we should draw the line in respect of non-manual workers in so far as they do require protection in respect of accident sustained in their employment in the same way as manual workers.

My submission in that regard is that, because of the changes that have taken place in respect of clerical salaries in the years since 1938, the position has markedly changed, and the suggestion that we will fix the income limit at £800 to-day is not unwarranted, for this reason: I take it that in fixing the limit of £250 in the original Act in respect of non-manual workers regard was had to the fact that the intention was to bring within the scope of the Act non-manual workers who would at the same time be closely aligned in the nature of their duties to the general run of manual workers. In other words, we were dealing with the ordinary type of clerks, dispatch clerks, checkers, and so on.

Now, with the changes which have taken place in clerical employees' salaries and the reorganisation of their gradings and salary scale, a large number of employees whose salaries are at the maximum reach to nearly £800. It is from that point of view of merely keeping within the income limit the non-manual workers who were originally intended to be covered by the Act that I think we should raise the scale a little higher than £600. In most large firms to-day thejunior salary scale begins around £190 or £200 and runs automatically to £600. We may find also that within the next year or so there may be a further adjustment of these salary scales which would put the maximum for these non-manual workers well above £600 per annum. That is why I think that merely as a precaution we should fix it in respect of this Bill at £800. We will not be bringing under the Bill a large number of persons who are not under the Act under the old £250 limit or bringing in the type of employees whom it was never intended to cover. The £600 is tied in regard to non-manual workers now and I think the argument is in favour of raising it above £600.

Mr. Lemass

I would urge strongly against this change. All the social welfare legislation which has been enacted is based on that figure of a £600 income limit for non-manual workers. Even the Health Bill which has been passed this week has that limit also. If we were to depart from it in one instance, it is certain pressure would come for departing from it in all instances. As the Minister for Health mentioned, the question will have to be considered at some stage, whether workmen's compensation will be incorporated into the State insurance scheme against sickness, or whether some other basis for it should be maintained. I think that if we are going to consider the possibility of incorporating workmen's compensation in the sickness insurance scheme we should leave the limit as it is, because to change it now would be an embarrassing precedent when we come to consider that question. I urge that we should maintain the limit which was generally understood as applying to all these schemes at present until the wider question has to be decided.

Amendment, by leave, withdrawn.

Section 4 put and agreed to.

Amendment No. 9 not moved.

Section 5 put and agreed to.

SECTION 6.

Amendment No. 10 not moved.

Mr. Lemass

I move amendment No. 11:—

In page 5, line 7, to delete "sub-section (1) of".

This is a purely drafting amendment.

Amendment put and agreed to.

Mr. Lemass

I move amendment No. 12:—

In page 5, to insert "or of any sum paid under an agreement duly registered under Part VI of this Act", before "shall" in line 10, and to delete "or payment" in line 22 and substitute ", payment or sum".

The purpose of the amendment is to ensure that the benefit of the amendment to Section 60 of the Act of 1934 provided for by Section 6 of the Bill will extend to cases of disputed liability in which employer and workman agree upon the sum to release the former from his liability to make a weekly payment of compensation. Since the term "compensation" cannot be applied to the payment in such cases they would not come within the sub-section being added to Section 60 as it appears at present. The point is purely a drafting one.

Amendment put and agreed to.

Mr. O'Donnell

On behalf of Deputy O'Higgins, I move amendment No. 13:—

In page 5, lines 12 to 14, to delete "provided that the proceedings are instituted within 12 months from the occurrence of the accident,".

The position prior to the introduction of the Workmen's Compensation Acts was that there was a right at common law to institute proceedings against an employer for negligence and the period within which these proceedings could be brought was regulated by the Statute of Limitations and was four years in the case of negligence. When the Workmen's Compensation Acts were introduced, if a workman accepted compensation he immediately forfeited his right to introduce proceedings at common law no matter how gross the negligence on the part of his employer.

We all have had experience of caseswhere an unfortunate worker, through ignorance or through inability to appreciate his position, accepted compensation, thereby forfeiting his chances of receiving perhaps substantial damages for the negligence of his employer.

We are going to remedy that in this Bill, but the section says that he must bring the proceedings at common law within 12 months of the date of the accident. Why should we limit the period to 12 months? One can visualise the case of a workman who was seriously injured possibly spending eight or ten months in hospital and very glad indeed to obtain compensation to keep the wolf from the door of his wife and family. It is only after he is up and out again and consults a solicitor that he discovers he has a right at common law to introduce proceedings for damages for negligence.

The statute law has protected the employer in that it has fixed the period in which proceedings must be instituted, namely, four years. Why should we amend the Statute of Limitations by fixing 12 months? I respectfully suggest that no great hardship would be thrown on the employer by this amendment. If by any chance the unfortunate worker succeeds in his action at common law, so far as I recollect the law is that any compensation paid will be set off against the damages obtained. If he has been drawing compensation for four years and obtains a lump sum for damages at common law, then the amount of compensation paid will be set off against the damages obtained. I think we should not fix a limit, that we should leave the employee his rights under the old Statute of Limitations. I think the amendment should be accepted.

Mr. Hickey

I think the Minister should accept the amendment. I know of a case where a man got ill and died after 12 months. The doctor certified that he was suffering from poisoning contracted in the industry in which he was engaged. I also know of a case of a man who worked in a lime-kiln who was ill for quite a long time, and it was over two years when one doctor certified he was suffering from a certaindisease which I mentioned— pneumoconiosis. But the trouble there was that it was not a scheduled disease. We took it to court and there the legal adviser told us that the case would be thrown out because the disease was not a scheduled disease. Studying the different articles written about this disease, I find that in England some of those miners and other workers who went into the army or the navy discovered that this disease did not show itself until after two or two and a half years, and I think the Minister will be well-advised not to have any limitation at all except that the sickness did arise out of the occupation. I think the Minister should accept the amendment.

Mr. S. Flanagan

Is it silicosis?

Mr. Hickey

No, pneumoconiosis.

Dr. Ryan

This provision in this Act is designed to remedy a grievance that has been there for a long time. That is the clause which gives a workman the right to bring in a claim for damages in common law even though he has accepted workmen's compensation. I think every Deputy was anxious that that should be put in, but I think it should be fairly obvious that some limit had to be put in at the same time. I think it would be very unfair if a man were to draw workmen's compensation for a protracted period and then make up his mind that he would resort to common law. A Bill was brought in by the Labour Party some time ago, and what they suggested was that the man should be allowed to go to common law if he was not aware of his rights before that.

I thought there might be some discussion in the courts about whether he was aware of them, and I wanted to cut that out, and give the man 12 months to make up his mind and that is fair enough. I cannot imagine more being needed. As a matter of fact, I was doubtful whether the period should be six months or 12 months. In most cases it should be six months, but maybe in a very bad accident, a man might take three or four months to recover his senses, so to speak, or be in a position to consider his positionand in that case six months might be a bit short. I do not think anybody could say that 12 months is not reasonable from a security point of view. I do not think Deputies could argue that if a man is drawing workmen's compensation for five or seven or ten years, he could come along and take this action.

Mr. O'Donnell

Would the Minister consider the suggestion of Deputy Flanagan?

Mr. Hickey

The man cannot go to court without medical evidence.

Dr. Ryan

I cannot imagine a case where a man would take 12 months to make up his mind.

Mr. Hickey

Suppose he does not know until after 12 months that he is suffering from a disease which arose out of his occupation? This will be debarring him?

Mr. O'Donnell

We have cases in which it takes a considerable time after the occurrence for the result of the occurrence to become apparent.

Dr. Ryan

I think that is a different matter.

Mr. O'Donnell

We agree that proceedings under the Workmen's Compensation Act may be instituted after 12 months, but if by any chance those injuries occurred through the negligence of an employer, the worker is debarred from pursuing his common law action after 12 months from the date incapacity set in, or the injuries became apparent. If we amended the Bill to the extent of putting his rights at common law on a par with his rights under the Workmen's Compensation Act it would meet the proposed amendment.

Dr. Ryan

I am not sure what point the Deputy is making but I think it is covered by amendment No. 18 which was ruled out of order. I think that would certainly be a very cogent point to make in a comprehensive scheme that where the full impact or realisation of the accident was not realised for a good while afterwards, the personmight have a good case to come back to court to have the case reconsidered. Is that the point?

Mr. O'Donnell

No. Amendment No. 18 merely deals with compensation. It does not deal with damages at common law. What I am trying to get at, is to try to put the workman's rights to sue for damages at common law on a par with his rights to sue for compensation under the Workmen's Compensation Acts. In other words, no matter when his injuries become apparent, at common law, as the Section now stands, if 12 months have elapsed he has no rights, but he has the right of action under the Workmen's Compensation Act if it becomes apparent after a longer period then 12 months. I think we should put them on a par.

Mr. Norton

Would the Minister consider leaving the position of the man as it is at common law? The position at the moment is that if a man meets with an injury in the course of his employment, he has met with an injury and everybody knows that he has met with an accident and he is given compensation under the Workmen's Compensation Acts. The question arises that we are now giving him the right in 12 months to go after his employer from the date of the accident, if negligence attaches to the employer. But we are saying in this particular case you can only sue within 12 months. That might meet most cases because at that stage it is not a question of whether he met with an injury or not. The only point is the way in which he met with the injury, whether it was an accident or whether you could establish negligence against the employer. But there does seem to be a good case for saying: "You have the right against the employer under common law and there is no restriction with regard to time" and whatever his rights against the employer are in this respect leave them open to him. There is not much occasion for interfering with those rights. You can say: "You are getting workmen's compensation but that does not interfere with your rights in common law". Would the Minister look into that matter?

Dr. Ryan

Deputies must realise in ordinary cases of common law, say, where a man is injured in a motoring accident, he is sort of forced to take action because if he is badly injured he has nothing else to keep him, and he must get damages as soon as possible. But here he can draw workmen's compensation and make up his mind next year or the year after about what he is going to do. I think it is a different case. I think it is reasonable to say to him: "You must make up your mind as to what you are going to do within 12 months." Of course, if he does not draw compensation, then he can take as long as he likes.

Mr. S. Flanagan

Will the Minister consider the suggestion I made, because I think that in 99 cases out of 100, 12 months would be sufficient? I am quite certain that 99 per cent. of the cases would be taken within the 12 months, but there might be an odd case like that mentioned by Deputy Hickey and other cases where for unusual reasons the person might not be in a position to take the action for over 12 months. It might be possible then to provide that such an action should be taken within 12 months unless just and reasonable cause is shown to the court why such action was not taken before then.

Dr. Ryan

I do not know. I have no idea. The solicitors here probably would be better able to know about that.

Mr. O'Donnell

There is one other consideration. I am going to put this point. Let us try to be fair to both sides.

Dr. Ryan

You would let the court interpret what is reasonable cause?

Mr. O'Donnell

Yes.

Dr. Ryan

Are the courts not very lenient in their interpretation?

Mr. O'Donnell

Oh, they are.

Dr. Ryan

Then you might as well put two or three years there, because that is how it would work out.

Mr. O'Donnell

There is another point which the Minister should really consider. Take the poor worker, the very poor man. Now, he may be advised by legal advisers: "Look, you have a good sporting chance, a fifty-fifty chance. It is a High Court action. You must employ medical experts. You must employ engineers. Counsel have got to be employed." Now the worker will think very carefully before he takes a chance. It may be that he may wish to accumulate a certain amount of financial assistance before he embarks on this very costly legal gamble, if I might use the expression.

Mr. Hickey

It is only a gamble.

Mr. O'Donnell

It is only a gamble. I think he should really be given longer than 12 months to make up his mind.

Dr. Ryan

Are you encouraging him to gamble on the lawyers?

Mr. O'Donnell

You are not gambling on the lawyers. We are gambling on the decision of a judge and, possibly, a Supreme Court, and very often we might find a divided Supreme Court. When you have a divided Supreme Court it is a gamble, no matter how you look at it. I do not think that any person is being prejudiced by extending the time. I cannot visualise any person being prejudiced if you are giving that unfortunate workman who may find himself in that position more time. As Deputy Flanagan says, in 99 cases out of 100 he knows his position within 12 months, but better let us make provision for the other 1 per cent. of cases. We all know that in going into a legal action a man might find the outlay involved run into hundreds of pounds. Models may have to be made——

Dr. Ryan

How much did you say?

Mr. O'Donnell

Hundreds of pounds.

Dr. Ryan

Costs, of course.

Mr. Hickey

It is very hard to prove negligence.

Mr. Norton

The doctors' teeth will water.

Mr. O'Donnell

I was not dealing with professional fees. Before professionalfees are even thought of, models may have to be made of the locus in quoof the work, engineers and experts may have to be procured——

Mr. Hickey

And photographs.

Mr. O'Donnell

——and photographs, exactly, and as I say again, there is that gamble and the workman may not make up his mind to take it until he has accumulated some financial assistance. I think that no person would be prejudiced by giving him extra time.

Dr. Ryan

I am prepared to consider that, but I do not want to put words in that will cause us difficulties in a short time. There would have to be rather stronger wording.

Mr. O'Donnell

If the Minister would extend it to a reasonable time, say, within two or three years——

Dr. Ryan

Two years to cover such cases?

Mr. O'Donnell

Yes.

Dr. Ryan

I think that might be acceptable.

Mr. Norton

Two years would cover it.

Mr. O'Donnell

If you say two years, the amendment will be withdrawn.

Dr. Ryan

I will consider that.

Amendment, by leave, withdrawn.

Dr. Ryan

I move amendment No. 14:—

To add to the section a sub-section as follows:—

(2) The amendment effected by sub-section (1) of this section shall not apply to any case where the accident happened before the appointed day.

This is really clarification, to make perfectly sure that an action in respect of an accident which occurred before the appointed day would not be considered.

Amendment agreed to.

Question proposed: "That Section 6, as amended, stand part of the Bill".

Mr. Larkin

On Section 6 there is a point I would like to put to the Minister, but I am in some difficulty because I am not a lawyer. I understand that within the past two or three weeks a case actually came before the courts in which a point has arisen which might require clarification. I understand that in a recent case where a workman took proceedings under the Compensation Act and simultaneously took proceedings under common law the common law proceedings were lost and subsequently it was not clear to his legal advisers as to his position regarding whether the compensation case then could be heard in the Circuit Court or the High Court and because of some difficulty the decision now is in this particular case that the man has lost all possibility of pursuing even his compensation case.

I find myself frankly at somewhat of a loss because it is a very technical matter, and only members of the legal profession would be clear about the argument and have knowledge of the case. Perhaps the Minister might consult his legal advisers and consider whether it would not be necessary on the Report Stage to try to deal with this point, which has only arisen as far as I know in the last two or three weeks. There is also difficulty in that respect, that in this particular matter there seems to be a difference between the English Act and the law dealing with that particular code here. It is purely a question, as I understand it, of where this procedure is pursued, where a person first pursues his compensation case, in which court his case will be proceeded with after the failure of a common law action. I think that case occurred recently. It is the case of Curran v. Pye. Perhaps the Minister might have his advisers check on it and see whether from a legal point of view we could do something to clarify it.

Dr. Ryan

Very good.

Question put and agreed to.

SECTION 7.

Dr. Ryan

I move amendment No. 15:—

Before Section 7, to insert a new section as follows:—

(1) Section 61 of the Act of 1934 is hereby amended by the insertion therein after paragraph (a) of the following paragraph:

(aa) notwithstanding anything contained in the foregoing paragraph—

(i) acceptance by the workman of compensation under this Act or such scheme, or of any sum paid under an agreement duly registered under Part VI of this Act, shall not prevent the workman from maintaining the said proceedings to recover damages or from recovering damages therein, provided that the proceedings are instituted within 12 months from the occurrence of the accident, and

(ii) if the proceedings are so instituted and it is determined therein, or on appeal, that the injury is one for which the defendant is liable in the proceedings, the court in which the proceedings are heard, or if the determination is the determination (on appeal by either party) of an appellate tribunal then such appellate tribunal shall deduct from the damages, costs and expenses any such compensation or sum which the workman has received and, where there have been proceedings for the recovery of compensation under this Act or such scheme, any costs and expenses therein of the respondent in those proceedings and any costs and expenses therein of the workman which have been borne by such respondent,

(2) The amendment effected by sub-section (1) of this section shall not apply to any case where the accident happened before the appointed day.

An Ceann Comhairle

With this amendment by the Minister we could also take Deputy Byrne's amendment.

Dr. Ryan

Before Deputy Byrne speaks I want to assure him that that is already covered and there is no doubt about it.

Mr. A. Byrne

Might I mention this special case, the case of a man who was killed about 12 months ago in O'Connell Street when a horse ran away and killed him. His widow has taken, during her sorrow, through the Workmen's Compensation Act, £150 for herself and £150 for the children. What I want to know is will the Minister under the Bill and this amendment say if she is in a position to take further action in the other courts by a claim for damages.

Dr. Ryan

No, that is a different matter.

Mr. Byrne

The Minister will agree that this is a sad case of an ex-Army man whose age was about 50, a military policeman who took a job as driver of a cart and having taken that job the horse ran away, as I mentioned before, and he was killed in O'Connell Street and his widow got £300.

Dr. Ryan

Do I understand you to say that there was negligence in that case?

Mr. Byrne

I do not think that has been proved. There is a point arising in that it is stated that the horse was out on grass for three or four weeks and the man was ordered to take out the van, so the horse took fright and in going through the city after being three weeks away from the traffic it ran away. There is no negligence proved in the case but I would like in cases like that to give an opportunity of doing something, if it is possible, for the widow and children.

Dr. Ryan

On the general question, that is different. If the man had a right then there is no doubt about it his widow or representative would have the same right to pursue it if he died, whatever his right might be. That is already covered under the Acts. Butin the particular case the Deputy has mentioned I am afraid that there is no hope there because the action has already occurred.

Amendment agreed to.

Amendment in the name of Deputy Alfred Byrne, by leave, withdrawn.

An Leas-Cheann Comhairle

Amendments Nos. 16, 17 and 18 have been ruled out of order and are not relevant to the subject matter of this Bill.

Mr. Larkin

With respect, and with regard to amendment No. 18, I should like to say that I am at a loss to understand the grounds on which it has been ruled out of order. In so far as the present Bill is concerned we have been dealing with the question of weekly payments. The point here is that, on review by a court of weekly payment and incapacity is taken to have ceased, even if incapacity arises at a subsequent date the workman is debarred from having his incapacity reconsidered and having the compensation re-awarded. A very great hardship can be imposed in that respect.

Dr. Ryan

I think that prior to 1924 that was the law.

Mr. O'Donnell

It was.

Dr. Ryan

Some decision which was given in 1924 removed that. I would think that they could go back to it on a comprehensive Bill but not on this Bill, because I am afraid it would require a good lot of consequential amendments.

Mr. Norton

Would the Minister look into the matter?

Dr. Ryan

I have no objection at all if it is possible.

Mr. Norton

Will the Minister see if some amendment can be devised which would be suitable?

Dr. Ryan

Yes.

Mr. O'Donnell

Within the past eight months, on the Donegal circuit, there has been the very same type of thing that was suggested by DeputyLarkin. The sympathy of the court was entirely with the workman but, in view of the fact that a decision was given that there was no incapacity on the hearing of the original application, the workman was ruled out. I suggest that the Minister should look into the matter between now and the Report Stage.

Dr. Ryan

I will. I am in favour of it if it can be done.

Section 7 put and agreed to.

Sections 8 to 11, inclusive, agreed to.

Schedule and Title agreed to.

Bill reported with amendments.

An Leas-Cheann Comhairle

When is it proposed to take the next stage?

Dr. Ryan

Next Wednesday.

Mr. Norton

Would the Minister say when he hopes to circulate his amendments?

Mr. O'Donnell

Remember that Monday is a bank holiday.

Dr. Ryan

They will be available some time on Tuesday and they will be posted on Tuesday evening.

Mr. Norton

Up to what time will amendments be accepted?

Dr. Ryan

I suppose up to Tuesday night.